A-312-90
Shur Gain Division, Canada Packers Inc.
(Applicant)
v.
National Automobile, Aerospace and Agricultural
Implement Workers Union of Canada (CAW-
Canada) (Respondent)
INDEXED AS: SHUR GAIN DIVISION CANADA PACKERS INC. V.
NATIONAL AUTOMOBILE, AEROSPACE AND AGRICULTURAL
IMPLEMENT WORKERS UNION OF CANADA (C.A.)
Court of Appeal, Pratte, Stone and Desjardins
JJ.A.—Halifax, May 21; Ottawa, October 3, 1991.
Constitutional law — Distribution of powers — Labour rela
tions — Whether Nova Scotia feed mill within CLRB jurisdic
tion — Review of cases, authors on Constitution Act, 1867, s.
92(10) — Distinction between "work" and "undertaking" —
Whether undertakings conducted at federal work subject to
Code — Detailed analysis of Canadian Wheat Board Act —
Whether Canada Labour Code, s. 2(h) ultra vires Parliament
as to "undertaking" — Federal legislative jurisdiction over
work including regulation of construction, repairs, alterations
and management — Parliament having power to legislate as to
labour relations of undertaking having no activity other than
operating federal work.
Labour relations — S. 28 application to review certification
by CLRB of union to represent workers at Nova Scotia feed
mill — Whether Board exceeding jurisdiction — Whether mill
work declared for general advantage of Canada under Cana-
dian Wheat Board Act, s. 76 — Whether mill's labour relations
within federal jurisdiction — Whether Act applies across
Canada — 50% of capital cost of new plant for fish feed pro
duction — Fish feed not containing grain — Whether mill more
of fish mill, therefore outside contemplation of Act — Court
bound by Board finding milling grain for livestock feed mill's
primary and actual use — Whether Canada Labour Code, s.
2(h) ultra vires Parliament as to "undertaking" — Work of
employees in question having direct, close connection with
operation of federal work — Applicant's employees, other than
those operating mill, remaining under provincial jurisdiction.
This was a section 28 application against a Canada Labour
Relations Board decision certifying the respondent as bargain
ing agent for seventeen employees directly involved in the
operations of the applicant's plant at Truro, Nova Scotia.
The mill produces feed and a feed additive from grain and
other commodities. The grain comes from Ontario and the
West. Livestock feed is now the main product of the mill, but
fish feed for aquaculture is a growing business. Fifty percent
of the capital cost of Shur Gain's new mill in Truro is related
to fish feed production. The livestock feed is 60% grain, the
additive 5% grain, and fish feed is made without grain. The
Board held that section 76 of the Canadian Wheat Board Act
made the mill a federal work and that it therefore had jurisdic
tion over its labour relations. The applicant argues that its plant
is not a feed mill and that the Act applies only to western mills.
Held, the application should be dismissed.
Per Desjardins J.A.: Section 76 of the Canadian Wheat
Board Act declares all feed mills to be works for the general
advantage of Canada. Under subsection 8(1) of the Interpreta
tion Act, an enactment applies to all of Canada unless a con
trary intention is expressed. Although Parts II, III, V, and sec
tions of Part VI are expressly limited to the "designated area"
of western Canada, there is no such limitation to section 76.
While the Act does not define "feed mill", the Board correctly
read the expression to mean a plant where grain is processed
into animal feed and applied the deciding factor of the primary
and actual use, not the intended use, of the building. The mill
is therefore a work declared to be for the general advantage of
Canada within paragraph 92(10)(c) of the Constitution Act,
1867.
The application, in paragraph 92(10)(a), of federal jurisdic
tion to "undertakings" extending beyond a single province
does not apply to works. Paragraph 2(h) of the Canada Labour
Code, in so far as it purports to confer jurisdiction over under
takings declared to be for the general advantage of Canada, is
ultra vires. Commission du Salaire Minimum v. Bell Telephone
Company of Canada which dealt with conditions of work of an
undertaking, does not apply here. The power of Parliament to
assume exclusive legislative jurisdiction over a work which
would otherwise be wholly within provincial jurisdiction is an
exceptional one. The Board erred in saying that federal juris
diction over a work carries with it authority over the undertak
ing operating the work; but it does include the regulation of the
management of the work itself and the working conditions of
those directly involved in the operation of the work. This bal-
kanizes labour relations in the Shur Gain undertaking, author
ity over the other employees being provincial.
Per Pratte J.A. (Stone J.A. concurring): Most of the provi
sions of the Act either apply by their terms to all of Canada or
may be so extended. The case law of the Court holds that Par
liament may legislate with respect to the labour relations of an
undertaking operating a federal work in so far as concerns
employees whose functions are closely related to the operation
of that work.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
An Act to Amend the Act incorporating "The Bell Tele
phone Company of Canada", S.C. 1882, e. 95.
An Act to incorporate The Bell Telephone Company of
Canada, S.C. 1880, c. 67.
An Act to amend the Railway Act, S.C. 1990, c. 6.
Atomic Energy Control Act, R.S.C., 1985, c. A-16, s. 18.
Bell Canada Act, S.C. 1987, c. 19, ss. 2, 5.
Canada Grain Act, R.S.C., 1985, c. G-10, ss. 2 (as am. by
R.S.C., 1985 (4th Supp.), c. 37, s. 1), 3 (as am. idem, s.
2), 13, 55, 121(1).
Canada Labour Code, R.S.C., 1985, c. L-2, ss. 2(h), 4,
22.
Canadian National Railways Act, R.S.C., 1985, c. C-19,
s. 18.
Canadian Wheat Board Act, R.S.C., 1985, c. C-24, ss. 2
(as am. by R.S.C., 1985 (4th Supp.), c. 38, s. 1), 3, 5, 6,
20(1), 23, 24, 25 (as am. idem, s. 7), 26, 28(j), 30, 32,
33, 34, 35, 40, 45, 47, 48(2), 76.
Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) (as am.
by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to
the Constitution Act, 1982, Item 1) [R.S.C., 1985,
Appendix II, No. 5], ss. 91(29), 92(10)(a),(b),(c),
92A(1)(c) (as enacted by Constitution Act, 1982,
Schedule B, Canada Act 1982, 1982 c. 11 (U.K.)
[R.S.C., 1985, Appendix Il, no. 44], s. 50).
Interpretation Act, R.S.C., 1985, c. I-21.
Labour Relations Act, R.S.O. 1980, c. 228.
List of Elevators in the Eastern Division Regulations,
SOR/89-319.
Minimum Wage Act, R.S.Q. 1941, c. 164.
CASES JUDICIALLY CONSIDERED
NOT FOLLOWED:
Burns c. Cie du trust national Ltée, Montréal 500-09-
000728-857, 500-09-000731-851, Monet, Vallerant and
Baudoin JJ., judgment dated 10/7/90, Que. C.A., not yet
reported.
DISTINGUISHED:
Commission du Salaire Minimum v. Bell Telephone Com
pany of Canada, [1966] S.C.R. 767; (1966), 59 D.L.R.
(2d) 145; Bell Canada v. Quebec (Commission de la santé
et de la sécurité du travail), [1988] 1 S.C.R. 749; (1988),
51 D.L.R. (4th) 161; 85 N.R. 295; 15 Q.A.C. 217.
CONSIDERED:
Cargill Grain Co. v. Canada (Labour Relations Board),
[1990] 1 F.C. 511; (1989), 63 D.L.R. (4th) 174; 89 CLLC
14,053; 105 N.R. 1 (C.A.); Central Western Railway
Corp. v. U.T.U., [1989] 2 F.C. 186; (1988), 47 D.L.R.
(4th) 161; 1988, 84 N.R. 321 (C.A.); United Transporta
tion Union v. Central Western Railway Corp., [1990] 3
S.C.R. 1112; (1990), 76 D.L.R. (4th) 1; 91 CLLC 14,006;
119 N.R. 1; Ontario Hydro v. Ontario (Labour Relations
Board) (1991), 1 O.R. (3d) 737; (1991), 77 D.L.R. (4th)
277; 91 CLLC 14,014; 43 O.A.C. 184; [1991] OLRB
Rep. 115 (C.A.); Reference re Waters and Water-Powers,
[1929] S.C.R. 200; [1929] 2 D.L.R. 481; C.S.P. Foods
Ltd. v. Canada Labour Relations Board, [1979] 2 F.C. 23;
(1978), 25 N.R. 91 (C.A.).
REFERRED TO:
Maple Leaf Mills Ltd.; Master Feeds Branch, London,
Ont. Re, [1974] OLRB Rep. 797; The Queen v. Thumlert
(1959), 20 D.L.R. (2d) 335; (1959), 28 W.W.R. 481 (Alta.
C.A.); Jorgenson v. Attorney General of Canada, [1971]
S.C.R. 725; (1971), 18 D.L.R. (3d) 297; [1971] 3 W.W.R.
149; 3 C.C.C. (2d) 49; Chamney v. The Queen, [1975] 2
S.C.R. 151; (1973), 40 D.L.R. (3d) 146; [1974] 1 W.W.R.
493; 13 C.C.C. (2d) 465; Cie du trust national Ltée c.
Burns, [1985] C.S. 1286 (Que.); N.V. Bocimar S.A. v.
Century Insurance Co. of Canada, [1987] 1 S.C.R. 1247;
(1987), 39 D.L.R. (4th) 465; 22 C.C.L.1. 51; 17 C.P.C.
(2d) 204; 76 N.R. 212; Attorney-General for Ontario v.
Winner, [1954] A.C. 541; [1954] 4 D.L.R. 657 (P.C.); Let
ter Carriers' Union of Canada v. Canadian Union of Pos
tal Workers et al., [1975] 1 S.C.R. 178; (1973), 40 D.L.R.
(3d) 105; [1974] 1 W.W.R. 452; 73 CLLC 14,190; Mon-
treal City v. Montreal Street Railway Company, [1912]
A.C. 333 (P.C.); In re Regulation and Control of Radio
Communication in Canada, [1932] A.C. 304 (P.C.); Re
Alltrans Express Ltd. and Workers' Compensation Board
of British Columbia (1983), 149 D.L.R. (3d) 385; [1983]
6 W.W.R. 372; 28 B.C.L.R. (2d) 304 (B.C.C.A.); revg Re
Alltrans Express Ltd. and Workers' Compensation Board
of British Columbia (1980), 116 D.L.R. (3d) 79, 25
B.C.L.R. 22 (B.C.S.C.); Alltrans Express Ltd. v. British
Columbia (Workers' Compensation Board), [1988] 1
S.C.R. 897; (1988), 15 Q.A.C. 161; [1988] 4 W.W.R.
385; 28 B.C.L.R. (2d) 312; 85 N.R. 241; Canadian
National Railway Co. v. Courtois, [1988] 1 S.C.R. 868;
(1988), 15 Q.A.C. 181; 85 N.R. 260; Canadian Pacific
Railway Company v. Notre Dame de Bonsecours (Corpo-
ration of), [1899] A.C. 367 (P.C.).
AUTHORS CITED
Finkelstein, N. Laskin's Canadian Constitutional Law,
Vol. 1, 5th ed., Toronto: Carswell, 1986.
Fraser, I. H. "Some Comments on Subsection 92(10) of
the Constitution Act, 1867" (1984), 29 McGill L.J. 557.
Hogg, Peter W. Constitutional Law of Canada, 2nd ed.,
Toronto: Carswell Co. Ltd., 1985
Lajoie, Andrée. Le pouvoir déclaratoire du Parlement,
Montréal: Presses de l'Université de Montréal, 1969.
COUNSEL:
G. R. P. Moir and Arthur R. Donahoe, Q.C., for
applicant.
Lewis Gottheil for respondent.
Harold Doherty for Canada Labour Relations
Board.
SOLICITORS:
Burchell, MacDougall & Gruchy, Truro, Nova
Scotia, for applicant.
CAW-Canada, Willowdale, Ontario for respon
dent.
Harold Doherty, Ottawa, for Canada Labour
Relations Board.
The following are the reasons for judgment ren
dered in English by
DESJARDINS J.A.: This section 28 [Federal Court
Act, R.S.C., 1985, c. F-7] application seeks to review
and set aside an order of the Canada Labour Rela
tions Board dated April 10, 1990, certifying a group
of employees of Shur Gain, a division of Canada
Packers Inc. working at a feed mill in Truro, N.S. At
issue is whether the Board exceeded its jurisdiction in
so deciding. 1
More specifically, two questions are raised:
whether the applicant's feed mill in Truro, N.S., is a
work declared to be for the general advantage of
Canada pursuant to section 76 of the Canadian
Wheat Board Act 2 and, in the affirmative, whether the
I See Canada Labour Code, R.S.C., 1985, c. L-2, s. 22; Car-
gill Grain Co. v. Canada (Labour Relations Board), [1990] 1
F.C. 511 (C.A.), at p. 515, footnote I.
2 R.S.C., 1985, c. C-24.
labour relations at the said feed mill fall within fed
eral jurisdiction.
THE FACTS
The respondent, on December 18, 1989, applied to
the Canada Labour Relations Board (the "Board")
pursuant to section 24 of the Canada Labour Code
for certification as bargaining agent for seventeen
employees working at the feed mill operations of
Shur Gain at its Truro mill and directly involved in
the feed mill operations. They were described as: 3
All employees of Canada Packers Shur-Gain Division includ
ing warehousemen, labourers, millhands, crusher-grinder oper
ator, packer, mixer operator, maintenance men, shipper-
receiver, pallet operator, and excluding stores and officer
employees, supervisors and those above the rank of supervisor.
According to the Board, they were all directly
involved in the feed mill operations and were classi
fied as service centre clerk, grinder, mixer, fish feed
mixer, maintenance, pellet operator, general labourer,
and lead hands . 4
Shur Gain is one of several divisions of Canada
Packers Inc. Canada Packers Inc. is involved in
diversified operations in all provinces of Canada
including food processing, packing houses, poultry
processing plants, dairy manufacturing products, feed
mills and potato operations. Shur Gain operates
nineteen feed mills in Canada, five of which are in
Atlantic Canada including the feed mill in Truro,
N.S. Each feed mill is an independent business entity
concentrating primarily on manufacturing and dis
tributing animal feed to customers in the province
where the feed mill is located. The feeds produced in
Truro, for example, are sold to livestock producers,
the majority of whom, about eighty percent, (80%)
are located in Nova Scotia. The remainder, approxi
mately twenty percent, (20%) are transported to
Newfoundland to be sold in that province. 5
3 A.B., at p. 4.
4 A.B., at p. 195.
5 A.B., at pp. 35-36 and 194.
The Truro feed mill produces three types of feed:
animal feed for livestock and poultry; "ultra-mix"
which is a special package of ingredients that is sup
plied to other feed mills of Shur Gain in Atlantic
Canada for use in their production processes; and fish
feed which is "a growing business in Atlantic
Canada". 6 The aquaculture industry has expanded
and Shur Gain has decided to get into this new activ
ity. Fish feed, which contains no grain, is used to
feed various types of fish including salmon, trout,
halibut and arctic char. It is being produced in Shur
Gain's old plant in Truro as a pilot project? At Shur
Gain's new plant in Truro, which represents a total
investment of about $9 million, fifty percent (50%) of
the capital cost is related to animal and poultry feeds
and the other fifty percent (50%) is related to the fish
feed operation. 8 According to the applicant, this fish
feed product has the potential of evolving as the
major product in Truro; at the present time, however,
livestock and poultry feed is the primary commodity
being produced at the Truro feed mill. 9
Shur Gain's Truro feed mill purchases through
brokers about 25,000 metric tonnes of grain annually.
About seventy-five percent (75%) is barley, wheat
and oats originating from Canada's Prairie Provinces,
while about twenty-five percent (25%) is corn from
Ontario. A small amount of barley and oats is pur
chased from local producers. The protein which is
used to mix with the grains is derived from soybean
received from Ontario, and canola (rapeseed) which
is shipped from Ontario or the West. Almost all the
grain from Ontario and the Western Provinces is
brought directly into the Truro feed mill by rail car.
Occasionally, a shipment is received by truck through
a grain elevator in Halifax, N.S., which in turn
receives its grain via ship from Thunder Bay, Ont.
Each year, also, there are a few shipments of locally
grown grain hauled in by truck.
When the raw grain arrives in Truro, it is unloaded
from the rail cars through a bucket-lift conveyor into
four (4) storage tanks, each holding eight thousand
6 A.B., at p. 166.
7 A.B., at p. 169.
R A.B., at p. 167.
9 A.B., at p. 194.
(8,000) bushels. From the storage tanks, the grain is
directed through pipes (gravity feed) to grinding,
crushing, rolling machines or mixing containers,
depending on the product being manufactured. The
processed grain is then combined with other additives
to form the final product which is mainly in the form
of a mash or pellets. The proportion of grain to other
additives in the various products is as follows:
Livestock and Poultry Feed 60%
Ultra-Mi x 5%
Fish Feed Nil
Shur Gain also operates a small retail outlet at the
Truro feed mill which offers pet foods, vitamins, vet
erinary products and bags of feed for sale to local
customers. 10
THE BOARD'S DECISION
The applicant argued strenuously before the Board
that the Truro feed mill fell within provincial juris
diction. The respondent simply produced previously
issued certification orders of the Board affecting
other feed mills in Atlantic Canada.
The Board proceeded first to decide whether the
applicant's feed mill in Truro, N.S., was a work
declared by Parliament to be for the general advan
tage of Canada. Relying on a decision of this Court in
Cargill, ]] the Board concluded that section 76 of the
Canadian Wheat Board Act applied to the whole of
Canada with the result that Shur Gain's feed mill in
Truro, N.S. was a work so declared. 12 The Board
came to such a conclusion notwithstanding the argu
ment of the applicant that the operation in Truro N.S.
was not a "feed mill" within the terms of the Cana-
dian Wheat Board Act. The applicant had argued that
the diversification from livestock and poultry feeds to
fish feed in which grain is not an ingredient removed
its operation from the traditional concept of a feed
mill. The Board noted that the Canadian Wheat
Board Act does not define "feed mills", "flour mills",
10 A.B., at pp. 194-195.
11 Cargill, supra, footnote 1.
12 A.B., at pp. 203-204.
"feed warehouses" or "seed cleaning mills" used in
section 76 of the Act. It adopted, however, the test
developed by the Ontario Labour Relations Board in
Maple Leaf Mills Ltd.; Master Feeds Branch,
London, Ont. Re as to what function "the building in
question is primarily devoted to ... " 13 and con
cluded: 14
... the primary operation of Shur-Gain's Truro feed mill is
milling grain for mixing into livestock and poultry feeds. It
seems to us that this is the type of operation that the legislation
had in mind when the declaration was enacted. We are satisfied
that on the facts before us at the present time, Shur-Gain's
operation at Truro, N.S. is a feed mill within the terms of the
CWB Act.
With regard to whether federal jurisdiction over the
work entailed jurisdiction over the labour and man
agement operation of such work, the Board made a
thorough analysis of the decision of this Court in
Cargill and in Central Western Railway Corp. v.
U.T. U., 15 and concluded: 16
From an analysis of the foregoing views expressed by the vari
ous Federal Court Judges who have had an opportunity to
speak on the matter, it is apparent that the debate over the prin
ciples to be applied when determining constitutional authority
over labour relations where works are declared to be federal
under section 92(10)(c) of the Constitution Act, 1867 is far
from settled. Until it is, it seems to us the wise course for the
Board to take is to adopt the interpretation which gives realistic
substance to section 4 of the Code:
"4. This Part applies in respect of employees who are
employed on or in connection with the operation of any fed
eral work, undertaking or business, in respect of the employ
ers of all such employees in their relations with those
employees and in respect of trade unions and employers'
13 [1974] OLRB Rep. 797, at p. 798.
14 A.B., at p. 204.
15 [1989] 2 F.C. 186 (C.A.). It should be noted that when the
reasons for the decision of the Board were delivered on April
9, 1990, a day previous to the order presently under attack, the
Supreme Court of Canada had not as yet rendered its decision
in United Transportation Union v. Central Western Railway
Corp., [1990] 3 S.C.R. 1112.
16 A.B., at pp. 210-212.
organizations composed of those employees or employers."
(Emphasis added)
(For what it is worth, we note that section 2(h) of the Code
also refers to "undertakings" as well as to "works").
To do otherwise would be to question the authority which Par
liament has traditionally exercised over the grain industry,
even in Western Canada where the Grain Act and the CWB
Act declarations capture practically the whole industry. This
authority has not only included the regulation of the movement
and processing of grain, it has also extended to the regulation
of industrial relations in the industry. Examples of this juris
diction which has been accepted by the labour relations com
munity in the grain industry are found in the "back-to-work"
legislation which has been enacted by Parliament in recent
years.
It would require some very clear and unequivocal directions
from the Court for this Board to say that some undertakings in
the grain industry, or for that matter in other industries where
works have declared [sic] to be federal and which have tradi
tionally been regulated for labour relations purposes under Part
I of the Code, now fall within provincial jurisdiction. In the
absence of such a clear direction, and, with the utmost respect
to those who may have expressed views to the contrary, we
prefer and adopt the majority decision in Central Western
which is supported by the minority in the Cargill decision.
Given the narrowest interpretation, this appears to stand for the
proposition that undertakings, or presumably identifiable divi
sions thereof, which operate works that have been declared to
be federal works pursuant to section 92(10)(c) of the Constitu
tion Act, 1867 on an ongoing and continuous basis, fall within
the meaning of "federal works, undertakings or businesses" for
the purposes of section 4 of the Code. (There appears to be
room for an even broader interpretation according to the views
expressed by Justices Lacombe and MacGuigan).
Unlike the situation in the Cargill decision where the affected
employees were not directly employed upon the declared
work, what we have before us in this case involves employees
who actually operate the works which have been declared to be
federal under section 76 of the CWB Act.
The undertaking, Shur-Gain, a division of Canada Packers is
solely in the business of operating feed mills in various parts
of the country. Shur-Gain operates the feed mill at Truro, N.S.,
as a separate business from its other feed mills, on an ongoing
and continuous basis. Applying the Central Western test, the
Board accordingly concludes that it does have jurisdiction to
regulate the labour relations of Shur-Gain's feed mill at Truro,
N.S. The Board will therefore proceed to determine the merits
of the application for certification and the parties will be noti
fied of the Board's decision in due course.
The following day, on April 10, 1990, the Board
issued an order certifying the respondent as bargain
ing agent for a unit comprising: 17
"all employees of Shur-Gain, a division of Canada Packers
Inc., employed at its feed mill at Truro, Nova Scotia, excluding
lead hands and those above". 1
THE SUBMISSIONS IN THIS APPLICATION
The applicant submits that the declaration con
tained in section 76 of the Canadian Wheat Board
Act is restricted to western mills and those specially
described in the Schedule to the Act. It argues, alter
natively, that section 76 of the Canadian Wheat
Board Act only applies to mills where grain is
processed into animal feed. The phrase "feed mill,
feed warehouse" or "les fabriques ou entrepôts d'ali-
ments pour les animaux", in section 76 of the Cana-
dian Wheat Board Act, must be read in context. Since
the Canadian Wheat Board Act deals with grain, it
can only cover physical plants where grain is
processed into animal feed. In this case, says the
applicant, the Canada Packers Inc. plant does not fall
within the language of the Act because half of the
plant is designated for the production of fish feed
without the use of grain and the other half produces
both animal feed made substantially from grain and
ultra-mix which has virtually no grain content.
17 A.B., at p. 215.
18 The report of the investigating officer contains the follo
wing description of the "Exclusions" and of the "Lead Hand
Position" (A.B., at pp. 114-115):
Exclusions Number of
Employees
manager 1
accounting clerk 1
data entry clerk 1
secretary 1
sales supervisor 1
salesman 3
production manager 1
lead hand 3
Total 12
(Continued on next page)
With regard to the constitutional argument, the
applicant, in essence, submits the following: in Com
mission du Salaire Minimum v. Bell Telephone Com
pany of Canada, 19 Martland J., for the Court, points
out that the words "works" and "undertakings"
within the excepted classes mentioned in subsection
92(10) [Constitution Act, 1867, 30 & 31 Vict., c. 3
(U.K.) (as am. by Canada Act 1982, 1982, c. 11
(U.K.), Schedule to the Constitution Act, 1982, Item
1) [R.S.C., 1985, Appendix II, No. 5]] are to be read
disjunctively. Martland J. also observes that the mat-
(Continued from previous page)
Lead Hand Position
There is a difference of opinion on what are the
responsibilities of lead hand. The applicant says
the lead hands are known as "foremen" in the
plant and have the right to hire, fire, discipline,
and perform usual management functions. The
employer says they possess none of these respon
sibilities or authority and have minimal superviso
ry duties. The incumbents refer to themselves as
"foremen". Please see copy of employer's submis
sion dated January 18, 1990, on file.
The investigating officer interviewed one of the
lead hands, Mr. Wayne Crowe, who said that the
lead hands do have the right to hire. In fact, he
said, that last year when a new employee was hi
red, Shur-Gain invited applications for the vacant
position. Then Mr. Crowe and Mr. George
Chestnut were given the stack of applications to
go through and select a successful candidate. The
two (2) lead hands selected the successful appli
cant, Mr. Darcy Doucette, who was then hired by
Shur-Gain.
In matters of discipline, Mr. Crowe says the lead
hands can and have issued verbal warnings to em
ployees without reference to anyone else in mana
gement. However, when it came to more serious
discipline, such as suspension or discharge, the
lead hands report to Eric Murphy, Manager, who
administers the discipline. Mr. Crowe, who said
he was known in the plant as a "foreman", said he
schedules overtime, when necessary, sometimes
with, and sometimes without, prior approval from
Eric Murphy.
Mr. Crowe said that in addition to their superviso
ry duties, the lead hands work along with the other
employees and share all the duties of their subor
dinates.
19 [1966] S.C.R. 767, at p. 772.
ters coming within the classes of legislative subjects
defined in that subsection extend beyond the mere
physical structure of e.g. a railway or a telephone sys
tem. When dealing exclusively with "works" and not
"undertakings", the converse, submits the applicant,
is almost irresistible: the matter in relation to federal
"works" does not extend beyond the mere physical
structure of the work. The applicant cites Laskin's
Canadian Constitutional Law: 20
If anything can be gathered from what has been done under
section 92(10)(c), as well as from what has been said about it,
the result of a declaration of a "work" to be for the general
advantage of Canada must surely be to bring within federal
authority not only the physical shell or facility but also the
integrated activity carried on therein; in other words, the decla
ration operates on the work in its functional character: see R. v.
Thumlert, supra.
But then, it interprets that statement in the following
way. The illustration The Queen v. Thumlert 21 and
the two -cases Jorgenson v. Attorney General of
Canada 22 and Chamney v. The Queen 23 cited by P.
W. Hogg 24 do not hold that jurisdiction over a work
brings within federal jurisdiction all activities carried
on at the work. If that were so, the distinction
between "work" and "undertaking" would be totally
destroyed. These cases only indicate that authority
over the work includes authority to control the uses
to which the work may be put. 25 The undertaking
itself does not come under federal jurisdiction. The
applicant adopts the position of Hugessen J.A. (dis -
20 N. Finkelstein, Vol. 1, 5th ed. (Toronto: Carswell, 1986)
at pp. 628-629.
21 (1959), 20 D.L.R. (2d) 335 (Alta. C.A.).
22 [1971] S.C.R. 725.
23 [1975] 2 S.C.R. 151.
24 Constitutional Law of Canada, 2nd ed. (Toronto: Cars-
well, 1985) at p. 492, where the following comment appears:
It has been held that these declarations are effective to
authorize federal regulation of the delivery, receipt, storage
and processing of the grain, that is to say, the activities car
ried on in or about the "works".
25 I. H. Fraser. "Some Comments on Subsection 92(10) of
the Constitution Act, 1867" (1984), 29 McGill L.J. 557, at p.
(Continued on next page)
senting) in Central Western 26 that "[w]orks, being
physical things, do not have labour relations". It dis
tinguishes the position taken by Marceau J.A. in that
same case. Marceau J.A. was of the view that there
was "a basic difference ... between ... an under
taking ... which happens to use such a work to con
duct its operations and ... the undertaking whose
sole reason for being is to operate on a continuing
basis the federal work". Marceau J.A. said that when
the national dimension is present, "the federal charac
ter of the work would attract federal jurisdiction over
all essential aspects of the operation thereof'. 27 But,
says the applicant, an undertaking such as that of
Shur Gain in Truro is in a different situation because
it produces a product by purchasing and transporting
inputs, by processing them at a work and by selling
and transporting the product to customers. It cannot
be said of a manufacturing interest, as it can of a rail
way undertaking, that its sole reason for being is to
operate a work. A manufacturing interest simply hap
pens to use such a work to conduct its operations.
The respondent submits on the first point that
under a proper interpretation of section 76 of the
Canada Grain Act, all mills in Canada are declared to
be works for the general advantage of Canada. It fur
ther argues that because a substantial portion of the
mill' s activities in Truro is devoted to producing
animal feeds, the fish feed portion of the operation is
only incidental with the effect that the operation of
Shur Gain in Truro, N.S., comes within the provi
sions of section 76 of the Canadian Wheat Board Act.
(Continued from previous page)
587: "Jurisdiction over a work of necessity includes an element
of control over its use, ... it does not stem from them."
26 Central Western Railway Corp. v. U. T. U., [1989] 2 F.C.
186, at p. 214.
27 Central Western Railway Corp. v. U.T.U., [1989] 2 F.C.
186, at pp. 204-205.
On the constitutional level, the respondent claims
that paragraph 92(10)(c) of the Constitution Act,
1867, read together with paragraph 2(h) and section 4
of the Canada Labour Code, provides, prima facie,
that a federal work, or undertakings conducted at a
federal work, are subject to the Code. It adopts what
it says is a modern view of paragraph 92(10)(c)
which it says is based on Laskin's Canadian Consti
tutional Law that the "declaration operates on the
work in its functional character". 28 In any event, it
says, the sole reason for Shur Gain's undertaking in
its physical premises is, as Marceau J.A. wrote in
Central Western, 29 to operate the work on a continu
ing basis, and not only to use it. The respondent also
relies on statements made by Lacombe J.A. in that
same case. Because the railway line of Central West
ern was a work declared to be for the general advan
tage of Canada, Lacombe J.A. took the view that
since Central Western's employees were engaged in
the day-to-day operations of a railway undertaking
carrying on its business as a going concern over a
federal work, the regulation of the conditions of
employment of its employees formed an integral part
of the primary federal competence over the matter
coming within the class of subject mentioned in para
graph 92(10)(c) of the Constitution Act, 1867. 80
ANALYSIS
A word should first be said about the Central West
ern case.
When the Central Western case reached the
Supreme Court of Canada, 31 Parliament had already
passed legislation, retroactive to July 1, 1986, which
operated to withdraw any paragraph 92(10)(c) decla
rations with respect to Central Western. 32 The issue
we are confronted with therefore disappeared. What
28 Finkelstein, N. Laskin's Canadian Constitutional Law,
Vol. 1, 5th ed. (Toronto: Carswell, 1986), at p. 629.
29 Central Western Railway Corp. v. U.T. U., [1989] 2 F.C.
186, at p. 204.
so Central Western Railway Corp. v. U.T. U., [1989] 2 F.C.
186, at p. 227.
31 United Transportation Union v. Central Western Railway
Corp., [1990] 3 S.C.R. 1112.
32 An Act to amend the Railway Act, S.C. 1990, e. 6 [Assen-
ted to 29th March, 1990].
remained was whether federal or provincial labour
legislation applied to an undertaking operating a rail
way line wholly within Alberta, previously owned by
a national railway but later owned and operated by a
provincial company with a four-inch gap between the
national line and the local line. The answer turned on
whether the railway could be seen as a federal work
or undertaking under paragraph 92(10)(a). A major
ity of the Supreme Court of Canada said it did not,
confirming therefore provincial jurisdiction over
Central Western's employees. Central Western, the
local line, had always been used and was still being
used for the transportation of grain for some nine
grain elevators operated by four grain companies
along the line. The Canada Labour Relations Board
had found federal jurisdiction over Central Western
on the basis that the work performed by employees of
Central Western was integral to the operation of the
grain elevators located along the rail line. The grain
elevators were therefore viewed as a core federal
undertaking because of a paragraph 92(10)(c) decla
ration. Dickson C.J., for a majority, rejected that
position: 33
In my view, this issue can be dealt with summarily. As the
intervener the Attorney General for Alberta argued, the eleva
tors are not dependent upon the continued operation of Central
Western. Elevators exist to receive, grade, handle and store
grain but are not directly concerned with the transportation of
grain. Grain could be transported from the elevators by alter
native means, such as trucking, without altering the usefulness
of the elevators along the line. There is thus an insufficient
nexus between the grain elevators and Central Western to bring
the railway within federal jurisdiction. [Emphasis added.]
Before this Court, paragraphs 92(10)(a) and (c)
were at issue since Central Western was running its
railway cars on the former national line still declared.
Marceau J.A. and Lacombe J.A. took the view that
Central Western's employees came under the Canada
Labour Code. Hugessen J.A. dissented.
33 United Transportation Union v. Central Western Railway
Corp., [1990] 3 S.C.R. 1112, at p. 1143.
I find the factual situation before this Court in
Central Western different from the case at bar. The
issue in Central Western related to which jurisdiction
covered the labour relations of all of Central Wes
tern's employees. 34 It was, with these facts in mind,
that the judges on the panel wrote the notes they did.
Here, the application by the respondent union is lim
ited to the employees directly involved in the feed
mill operation. That makes it, in my view, a highly
relevant distinction. I will therefore say little about
Central Western in this judgment.
I will now proceed with the two issues facing the
Board in the case at bar.
1. The scope of the declaration under section 76 of
the Canadian Wheat Board Act
The Board noted that two declarations by Parlia
ment under the Constitution Act, 1867 affect the grain
industry in Canada. One is to be found in the Canada
Grain Act, 35 the other in the Canadian Wheat Board
Act.
The Canada Grain Act establishes the Canadian
Grain Commission 36 whose objects are to "establish
and maintain standards of quality for Canadian grain
and regulate grain handling in Canada, to ensure a
dependable commodity for domestic and export mar
kets". 37 The Act divides Canada between a "Western
Division" 38 which "means all that part of Canada
lying west of the meridian passing through the east
ern boundary of the City of Thunder Bay, including
the whole of the Province of Manitoba" and an "East-
ern Division" 39 which "means that part of Canada not
34 They were eight including the president and the vice-pre
sident. Central Western Railway Corp. v. U. T. U., [1989] 2 F.C.
186, at p. 206.
35 R.S.C., 1985, c. G-10.
36 S. 3 of the Canada Grain Act [as am. by R.S.C., 1985 (4th
Supp.), c. 37, s. 2].
37 S. 13 of the Canada Grain Act.
38 S. 2 of the Canada Grain Act.
39 S. 2 of the Canada Grain Act.
included in the Western Division". The declaration
under section 55 of that Act reads:
55. (1) All elevators in Canada heretofore or hereafter con
structed, except elevators referred to in subsection (2) or (3),
are and each of them is hereby declared to be a work or works
for the general advantage of Canada.
(2) All elevators in the Eastern Division heretofore or here
after constructed, as defined in paragraph (d) of the definition
"elevator" in section 2, are and each of them is hereby declared
to be a work or works for the general advantage of Canada.
(3) All elevators in the Eastern Division heretofore or here
after constructed, as defined in paragraph (e) of the definition
"elevator" in section 2, are and each of them is hereby declared
to be a work or works for the general advantage of Canada.
Section 121 of that Act entiled "Coming into
Force" states:
121. (1) Paragraphs (d) and (e) of the definition "elevator"
in section 2 and subsections 55(2) and (3) or any of those pro
visions shall come into force on a day or days to be fixed by
proclamation.
No such proclamation has been made to this date.
The effect of this limitation is that subsection 55(1)
of the Act can only be read in light of paragraphs (a),
(b), and (c) [as am. by R.S.C., 1985 (4th Supp.), c.
37, s. 1] of the defined word "elevator" in section 2
of the Act. Paragraph (a) or (b) of section 2 have no
application in the case at bar. We must revert to para
graph (c) of section 2 which reads:
"elevator" means
(c) the portion of any premises in the Eastern Division des
ignated by regulation pursuant to subsection 116(3) that is used
for the purpose of storing grain,
Shur Gain's storing facilities in Truro do not
appear in the List of Elevators in the Eastern Division
Regulations 4 ° adopted under subsection 116(3) of the
Canada Grain Act.
The Board therefore rightly decided that subsec
tion 55(1) of the Canada Grain Act did not affect the
Shur Gain feed mill in Truro, N.S.
ao SOR/89-319, 21 June, 1989.
Consideration had then to be given to the Cana-
dian Wheat Board Act.
The Canadian Wheat Board Act creates the Cana-
dian Wheat Board 41 "with the object of marketing in
an orderly manner, in interprovincial and export
trade, grain grown in Canada" 4 2 The word "grain"
"includes wheat, oats, barley, rye, flaxseed, rapeseed
and canola". 43
The Act does not divide Canada into two divisions
but specifies that certain Parts of the Act are limited
to a certain "designated area" which is thus defined
in section 2 of the Act:
2. (1) In this Act,
"designated area" means that area comprised by the Provinces
of Manitoba, Saskatchewan and Alberta, and
those parts of the Province of British Columbia
known as the Peace River District and the Cres-
ton-Wynndel Areas, and such other areas as the
Board may designate under subsection (3);
According to subsection 2(3) of the Act, the Board
can extend the designated area thus:
(3) The Board may, by order, designate parts of the Province
of British Columbia, other than the Peace River District and
the Creston-Wynndel Areas, and parts of the Province of Onta-
rio lying in the Western Division that are included in the desig
nated area for the purposes of this Act.
Confusion has arisen as to whether section 76 of
the Act is limited in its application to the "designated
area" defined in section 2 or whether it applies to the
whole of Canada. Section 76, to be found under the
heading "Declaration" in Part VII of the Act entitled
"General", reads:
76. For greater certainty, but not so as to restrict the general
ity of any declaration in the Canada Grain Act that any eleva
tor is a work for the general advantage of Canada, it is hereby
declared that all flour mills, feed mills, feed warehouses and
seed cleaning mills, whether heretofore constructed or hereaf
ter to be constructed, are and each of them is hereby declared
to be works or a work for the general advantage of Canada
and, without limiting the generality of the foregoing, every
41 S. 3 of the Canadian Wheat Board Act.
42 S. 5 of the Canadian Wheat Board Act.
43 S. 2 of the Canadian Wheat Board Act [as am. by R.S.C.,
1985 (4th Supp.), c. 38, s. I].
mill or warehouse mentioned or described in the schedule is a
work for the general advantage of Canada.
In Cargill, the judges of the majority adopted the
analysis made by MacGuigan J.A. who, although dis
senting on another point, took the view that section
76 of the Canadian Wheat Board Act applied to "all
flour mills, feed mills, feed warehouses and seed
cleaning mills ... " in Canada 4 4 MacGuigan J.A.
based his conclusion on a reading of the Act and on a
history of the legislation made by Mailhot J. (as she
then was), in Cie du trust national Ltée c. Burns, 45
with whom he agreed.
MacGuigan J.A. noted that the territorial divisions
established in the Canada Grain Act and in the Cana-
dian Wheat Board Act are not identical and that the
two Acts are not pari materia. Even with the addi
tional powers of designation given to the Canadian
Wheat Board under subsection 2(3) of the Canadian
Wheat Board Act, the "designated area" under that
Act is not potentially equivalent to the Western Divi
sion under the Canada Grain Act, since certain parts
of British Columbia are made exempt from the desig
nation. Following a history of the legislation, he con
cluded that: 46
... between 1950 and 1971 the Canada Grain Act covered all
of Canada, as did the Canadian Wheat Board Act. The Canada
Grain Act was then changed to apply to all elevators in the
Western Division, some in the Great Lakes Region and to east
ern elevators named in Schedule II. No such change was made
to the Canadian Wheat Board Act, and it therefore presumably
was intended by Parliament to continue the broad declaration
previously intended.
It is true that Mailhot J. was reversed in appeal4 7
But, for the reasons that follow, I am of the view that
44 Cargill, supra, at p. 532.
45 [1985] C.S. 1286 (Que.).
46 Cargill, supra, at p. 531.
47 See Burns c. Cie du trust national Ltée (10 July 1990),
Montréal 500-09-000728-857, 500-09-000731-851 (C.A.),
Monet, Vallerant and Baudoin JJ., not yet reported.
the matter was rightly decided by this Court in Car-
gill.
A detailed reading of the Canadian Wheat Board
Act shows that it consists of six Parts. Section 2
makes it clear that the definitions under the Canada
Grain Act are incorporated in the Canadian Wheat
Board Act with the exception of the word "elevator"
which is specific to the Canadian Wheat Board Act.
A "mill" under that definition is included in the word
"elevator."
Part I of the Act is not limited to the designated
area defined in section 2 of the Act reproduced ear
lier. It establishes the Canadian Wheat Board as a
body corporate and an agent of Her Majesty in Right
of Canada for the object of "marketing" in inter-
provincial and export trade grain grown in Canada.
The marketing is to be by means of buying, storing,
selling, shipping, handling, etc. 49 Under subsection
20(1), "[e]xcept as otherwise provided in this Act",
elevators are operated on behalf of the Board.
20. (1) Except as otherwise provided in this Act, every ele
vator shall be operated for and on behalf of the Board and no
person other than an agent of the Board shall operate any ele
vator, unless the elevator has been excepted by order of the
Board from the operation of this Act, and any elevator not
excepted from the operation of this Act, operated otherwise
than for the Board or by an agent of the Board, shall be
deemed to be operated in contravention of this Act.
Part II of the Act, entitled "Control of Elevators
and Railways" is said, under section 23, to apply only
48 S. 2(2) of the Canadian Wheat Board Act and the defini
tion of "elevator" in s. 2(1) are the following:
2....
(2) Unless it is otherwise provided in this Act, words and
expressions used in this Act have the same meaning as in
the Canada Grain Act, except that where in any definition
of any such word or expression contained in that Act the
word "elevator" is used, it has the meaning given to it
under subsection (1).
2. (1) In this Act,
"elevator" means a grain elevator, warehouse or mill that has
been declared by Parliament to be a work for the general
advantage of Canada.
49 S. 6 of the Canadian Wheat Board Act.
in, the "designated area".S 0 Section 24 of the Act
establishes tight controls over the delivery of grain,
including the person delivering the grain, the record
ing of the grain through a permit book, 51 and the
quantity of grain authorized under a quota system
established by the Board. Severe prohibitions are
imposed on the railway personnel in their handling of
grain. 52 Section 30 contemplates a territorial expan
sion of Part II 53 in allowing the Governor in Council,
by regulation, to apply Part II to grain produced in
any area in, Canada outside the designated area speci
fied in the regulation and to producers in, respect of
that grain. It has not as yet, however, been invoked.
Part III entitled "Interprovincial and Export Market
ing of Wheat by the Board", is restricted to the desig
nated area. 54 Subsection 40(1) provides that the Gov
ernor in Council may extend the provisions of Part
III, in respect of wheat produced in any area in
Canada outside the designated area. 55 Again, no reg
ulation has been adopted under this section of the
Act. Part IV, entitled "Regulation of Interprovincial
and Export Trade in Wheat", is not limited to the des
ignated area. Section 45 of that Part provides that the
Board is the sole trader in the buying and selling,
transport and export or import of wheat both inter
50 23. Subject to s. 30, in this Part, "grain" means grain pro
duced in the designated area and "producer" means a producer
in respect of that grain. [Emphasis added.]
51 See s. 26 of the Canadian Wheat Board Act.
52 See s. 25 [as am. by R.S.C., 1985 (4th Supp.), c. 38, s. 7]
and s. 28(j) of the Canadian Wheat Board Act.
53 S. 30 of the Canadian Wheat Board Act:
30. The Governor in Council may, by regulation, apply this
Part to grain produced in any area in Canada outside the
designated area specified in the regulation and to producers
in respect of that grain, and thereafter, until the regulation is
revoked, "grain" in this Part means grain produced in the
designated area and in the area so specified in the regulation
and "producer" means a producer in respect of that grain.
54 See ss. 32, 33, 34, 35 of the Canadian Wheat Board Act.
55 S. 40(1) of the Canadian Wheat Board Act:
40. (1) The Governor in Council may, by regulation, apply
the provisions of this Part, in respect of wheat produced in
any area in Canada outside the designated area, specified in
the regulation.
provincially or internationally. Part V is entitled
"Oats and Barley", "Extension of Parts III and IV".
Section 47 of that Part, authorizes the Governor in
Council by regulation to extend the application of
Part III, which is restricted to the designated area, or
Part IV, which is not restricted, or both, to oats or to
barley or to both oats and barley. Part VI, entitled
"Marketing Plans", provides for the establishment of
marketing plans only in respect of grain produced in
the designated area. 56 There is no provision for a pos
sible extension of that part. It is in Part VII, entitled
"General", that section 76 is to be found under the
heading "Declaration".
Subsection 8(1) of the Interpretation Act 57 states:
8. (1) Every enactment applies to the whole of Canada,
unless a contrary intention is expressed in the enactment.
A limited application of the Canadian Wheat
Board Act to the "designated area" only occurs where
specifically mentioned in the Act, that is in Part II,
Part III, Part V in part, and Part VI. The extensions
contemplated in Parts II and III of the Act make it
clear that Parliament had in mind that numerous pro
visions of the Act could have a territorial application
beyond the "designated area". This extension could
not be sustained from a constitutional point of view if
the declaration under section 76 did not cover the
works therein as they are to be found in Canada. To
put it another way, it is only if a work has been
declared to be for the general advantage of Canada
that Parliament can apply to it the provisions of the
Canadian Wheat Board Act. If the work has not been
declared, it remains a local work under provincial
jurisdiction and there could be no valid application of
the federal statute. Even if the phrase "in Canada" is
not to be found in section 76, as it is found in section
55 of the Canada Grain Act, this makes no difference
considering the clarity of intent expressed by Parlia
ment in sections 30 and 40 of the Canadian Wheat
56 See s. 48(2) of the Canadian Wheat Board Act.
57 R.S.C., 1985, c. I-21.
Board Act. What follows from this interpretation is
that, at present, outside of the designated area, mills
are operated by agents of the Board but are not sub
ject to the tight controls provided in Parts II and III of
the Act. The Board, however, in all areas of the coun
try, is the sole body authorized to move grain into the
interprovincial and international market.
I conclude that section 76 applies outside of the
designated area.
There remains to decide whether the Board was
correct in rejecting the applicant's alternative conten
tion that its mill in Truro, N.S. was more of a fish
mill, and therefore not a mill contemplated under the
Canadian Wheat Board Act.
I accept the applicant's reading of the Act that
"feed mill" means a plant where grain is processed
into animal feed. So did the Board. The Board was
impressed, however, not with the purpose the plant
had been designed for but with its primary and actual
use. The Board found as a fact that the primary oper
ation of the applicant's operation was milling grain
for mixing into livestock and poultry feeds. We are
bound by such findings. 58 The test adopted by the
Board amounts to an answer of the following ques
tion: "What is the undertaking which is in fact being
carried on?" 59 There is nothing here for which the
Board may be reproached.
2. Does a declaration under paragraph 92(10)(c) of
the Constitution Act, 1867 bring within federal legis
lative power the labour relations governing the rela-
58 See N.V. Bocimar S.A. v. Century Insurance Co. of
Canada, [1987] 1 S.C.R. 1247.
59 Attorney-General for Ontario v. Winner, [ 1954] A.C. 541;
[1954] 4 D.L.R. 657 (P.C.); Letter Carrier's Union of Canada
v. Canadian Union of Postal Workers et al., [1975] I S.C.R.
178, at pp. 188-189; C.S.P. Foods Ltd v. Canada Labour
Relations Board, [1979] 2 F.C. 23 (C.A.), at pp. 29-30.
tionships between employers and employees directly
involved in the operation of the work?
In Cargill, none of the employees whose certifica
tion was in issue worked directly in or on the eleva
tors that had been declared to be for the general
advantage of Canada; they were all office and clerical
workers employed in the Eastern Division Headquar
ters in Chatham. That office, however, besides being
the centre from which the company conducted its
grain merchandising activities, provided essential
support services, principally accounting and report
ing for the elevator operation. 60 A majority con
cluded that the labour relations of that office came
under provincial jurisdiction. The matter which is the
subject of this appeal was not in issue.
Paragraphs 92(10)(a),(b) and (c) of the Constitu
tion Act, 1867 provide:
92....
(10) Local Works and Undertakings other than such as are of
the following Classes: —
a. Lines of Steam or other Ships, Railways, Canals, Tele
graphs, and other Works and Undertakings connecting the
Province with any other or others of the Provinces, or
extending beyond the Limits of the Province:
b. Lines of Steam Ships between the Province and any Brit-
ish or Foreign Country:
c. Such Works as, although wholly situate within the Prov
ince, are before or after their Execution declared by the
Parliament of Canada to be for the general Advantage of
Canada or for the Advantage of Two or more of the Prov
inces.
Subsection 91(29) for its part specifies:
91. It shall be lawful for the Queen, by and with the Advice
and Consent of the Senate and House of Commons, to make
Laws for the Peace, Order, and good Government of Canada,
in relation to all Matters not coming within the Classes of Sub
jects by this Act assigned exclusively to the Legislatures of the
Provinces; and for greater Certainty, but not so as to restrict
the Generality of the foregoing Terms of this Section, it is
hereby declared that (notwithstanding anything in this Act) the
exclusive Legislative Authority of the Parliament of Canada
extends to all Matters coming within the Classes of Subjects
next herein-after enumerated; that is to say,-
29. Such Classes of Subjects as are expressly excepted in the
Enumeration of the Classes of Subjects by this Act assigned
exclusively to the Legislatures of the Provinces.
6 ° Cargill, supra, per Hugessen J.A., at p. 515.
It is trite law that paragraph 92(10)(c) deals with
"works" but not with "undertakings", and that the
effect of the declaratory power is to withdraw the
"work" from the domain of provincial legislative
power and bring it within federal legislative power by
virtue of subsection 91(29) as if it were expressly
enumerated in section 91. Works are "physical
things, not services". 61 An undertaking is "not a
physical thing, but is an arrangement under
which ... physical things are used." 62
Paragraph 2(h) of the Canada Labour Code 63 is
therefore ultra vires Parliament's jurisdiction in so
far as it covers an "undertaking". 64 But what about
section 4 of the Canada Labour Code: 65 does it apply
with respect to federal works when declared? This in
turn raises the following constitutional question: does
federal jurisdiction over a work declared to be for the
general advantage of Canada extend to the labour
61 Montreal City v. Montreal Street Railway Company,
[1912] A.C. 333 (P.C.), at p. 342.
62 1n re Regulation and Control of Radio Communication in
Canada, [1932] A.C. 304 (P.C.), at p. 315. Fraser, supra, foot
note 25, at p. 567 writes:
An undertaking has no concrete existence in the tangible
world, but exists only as a construct of the legal imagina
tion. While a work is a part of the physical world around us,
an undertaking is really nothing but a product of legal
theory.
I would think that an arrangement under which physical things
are used is as much a reality as for instance the good will of a
business. In a sense, the arrangement is what makes the work a
going concern.
63 S. 2(h) of the Canada Labour Code states:
2....
(h) a work or undertaking that, although wholly situated
within a province, is before or after its execution declared
by Parliament to be for the general advantage of Canada
or for the advantage of two or more of the provinces.
64 A similar view is held by Hugessen J.A. dissenting in
Central Western, supra, at p. 214, footnote 14.
65 S. 4 of the Canada Labour Code states:
4. This Part applies in respect of employees who are
employed on or in connection with the operation of any
federal work, undertaking or business, in respect of the
employers of all such employees in their relations with those
employees and in respect of trade unions and employers'
organizations composed of those employees or employers.
relations that govern the relationships between the
employees directly involved in the work and their
employer?
The applicant has cited the case of Commission du
Salaire Minimum v. Bell Telephone Co. (also referred
to as the Bell Canada 1966 case). 66 One comment
should be made because of the language used in that
case. Bell Canada is an undertaking which extends
beyond the borders of a province and its works have
been declared to be for the general advantage of
Canada. 67 The issue in the Bell Telephone Co. case
was whether the Quebec Minimum Wage Act applied
to an undertaking coming within the terms of
paragraphs 92(10)(a) and (c). At the beginning of his
judgment, Martland J., for the Court, states: 68
It is also conceded that the Minimum Wage Act is, generally,
within the competence of the Legislature of Quebec. The only
matter to be determined is whether it can apply to an undertak
ing which is within paras. (a), (b) or (c) of head 10 of s. 92 of
the British North America Act. [Emphasis added.]
He concludes: 69
In my opinion, regulation of the field of employer and
employee relationships in an undertaking such as that of the
respondent's, as in the case of the regulation of the rates which
they charge to their customers, is a "matter" coming within the
class of subject defined in s. 92(10)(a) and, that being so, is
within the exclusive legislative jurisdiction of the Parliament
of Canada. [Emphasis added.]
While Martland J. casts the issue in wider terms at
the beginning of his judgment (i.e. an undertaking
coming under sub-heads 92(10)(a), (b) or (c)), his
conclusion indicates that he retained paragraph
92(10)(a) only as a consideration. The question as to
whether the Minimum Wage Act would apply to a
work (not an undertaking) under paragraph 92(10)(c)
66 See Bell Canada v. Quebec (Commission de la santé et de
la sécurité du travail), [1988] 1 S.C.R. 749.
67 See An Act to incorporate The Bell Telephone Company
of Canada, S.C. 1880, c. 67; An Act to amend the Act incorpo
rating "The Bell Telephone Company of Canada", S.C. 1882,
c. 95 repealed by the Bell Canada Act, S.C. 1987, e. 19, but see
s. 2, the word "company" and s. 5.
68 Commission du Salaire Minimum, supra, at p. 770.
69 Commission du Salaire Minimum, supra, at p. 777.
was therefore not dealt with in the Bell Canada 1966
case. 70
Was it dealt with in the case of Bell Canada v.
Quebec (CSST)? 71
A majority of the Ontario Court of Appeal in
Ontario Hydro v. Ontario (Labour Relations
Board) 72 answered that question affirmatively.
The issue in the Ontario Hydro case was whether,
by virtue of paragraph 92(10)(c) and subsection
91(29) of the Constitution Act, 1867, the labour rela
tions of persons employed at certain Ontario Hydro's
nuclear facilities came under federal jurisdiction or,
on the contrary, whether they came under provincial
jurisdiction on account of paragraph 92A(1)(c)
enacted by the Constitution Act, 1982 [Schedule B,
Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985,
Appendix II, No. 44]], section 50. The application for
certification, under the Ontario Labour Relations
Act, 73 was opposed by a group of employees who
relied upon the declaration in section 18 of the
Atomic Energy Control Act 74 that all works and
undertakings involving atomic energy and "pre-
scribed" substances related thereto were
"works ... for the general advantage of Canada".
They submitted that on account of such declaration
their labour relations came within the provisions of
the Canada Labour Code.
Tarnopolsky J.A., with whom Lacourcière J.A.
agreed, concluded that Hydro Ontario's nuclear
works were governed by federal legislation. In the
course of delivering judgment, he said the follow
ing: 75
It is well settled that, by virtue of ss. 91(29) and 92(10)(c),
works or undertakings declared to be for the general advantage
70 See comment in A. Lajoie. Le pouvoir déclaratoire du
Parlement, (Montréal: Presses de l'Université de Montréal,
1969), at p. 91.
71 Bell Canada, supra, at p. 749.
72 (1991), 1 O.R. (3d) 737 (C.A.). Leave to appeal to the
Supreme Court of Canada granted July 4, 1991, [1991] 3
S.C.R. x.
73 R.S.O. 1980, c. 228.
74 R.S.C., 1985, c. A-16.
75 Ontario Hydro, supra, at p. 761.
of Canada are withdrawn from provincial legislative compe
tence: Reference re Waters and Water-powers, supra, at p. 220
S.C.R.
He later continued: 76
A declaration with respect to works for the general advantage
of Canada brings those works within the exclusive jurisdiction
of Parliament by virtue of s. 91(29). Accordingly, it cannot be
said that Parliament's jurisdiction with respect to such works is
merely ancillary or incidental; rather, this matter is one over
which Parliament has primary jurisdiction.
The opening words of s. 91 state that the exclusive legisla
tive authority of the Parliament of Canada extends to all mat
ters coming within the classes of subjects in s. 91. This
includes those classes of subjects coming within Parliament's
legislative competence circuitously, i.e., by s. 92(10)(c). By the
very language of s. 91, it would be inconsistent to conclude
that Parliament has legislative competence in relation to only
some matters falling within s. 91(29), when the wording of s.
91 clearly indicates that Parliament has jurisdiction over all
matters enumerated therein.
It has long been suggested that legislative jurisdiction over
works and undertakings includes the power to regulate those
matters touching on the employment of persons engaged on
such works and undertakings (per Duff J., in Reference re Leg
islative Jurisdiction over Hours of Labour, supra), notwith
standing that, as a general proposition, labour relations fall
within provincial authority under s. 92(13)—property and civil
rights: see Northern Telecom Ltd. v. Communications Workers
of Canada, [1980] 1 S.C.R. 115, 79 C.L.L.C. 14,211, 98
D.L.R. (3d) 1, 28 N.R. 107, at pp. 131-33 S.C.R., per Dickson
J. That suggestion was confirmed by the Supreme Court of
Canada in the trilogy of cases mentioned above: Bell Canada
v. Quebec, supra; Canadian National Railway Co. v. Courtois,
supra; and Alltrans Express Ltd. v. British Columbia (Workers
Compensation Board), .supra. Those cases all dealt primarily
with the issue of whether provincial statutes regulating health
and safety in the workplace are applicable to a federal under
taking.
For our purposes, Beetz J. in Bell Canada exhaustively
reviewed the development of the law on this issue and, there
fore, it need not be repeated here. That court held unanimously
that, with respect to federal undertakings within the meaning
of s. 92(10)(a), (b) and (c), working conditions and labour rela
tions are matters within the classes of subjects mentioned in s.
91(29) and, consequently, within the exclusive jurisdiction of
Parliament.
76 Ontario Hydro, supra, at pp. 765-767.
With respect, I disagree with such an interpretation
of the decision of the Bell Canada 1988 decision.
The issue in the Bell Canada 1988 decision, which
is the third of a trilogy, was whether the Quebec Act
respecting occupational health and safety applied to
Bell Canada. Beetz J., for the Court, made a most
impressive synthesis of the rules developed by the
courts in that area of constitutional law.
At pages 761-762, in dealing with what he named
Proposition Three, Beetz J., for the Court, said the
following:
Notwithstanding the rule stated in proposition two, Parlia
ment is vested with exclusive legislative jurisdiction over
labour relations and working conditions when that jurisdiction
is an integral part of its primary and exclusive jurisdiction over
another class of subjects, as is the case with labour relations
and working conditions in the federal undertakings covered by
ss. 91(29) and 92(10)a., b. and c. of the Constitution Act, 1867,
that is undertakings such as Alltrans Express Ltd., Canadian
National and Bell Canada. [Emphasis added.]
Beetz J., as he clearly stated, was dealing with fed
eral undertakings covered by subsection 91(29) and
paragraphs 92(10)(a), (b) and (c). The three examples
he gave, which corresponded to the cases before him,
were three undertakings. Alltrans Express Ltd., an
Ontario company registered to carry on business in
British Columbia, 77 operates a trucking service inter-
provincially and internationally. This brings it under
subsection 91(29) and paragraph 92(10)(a). 78 Cana-
dian National is an interprovincial undertaking whose
works have been declared to be for the general
advantage of Canada. 79 Bell Canada is an inter-
provincial undertaking whose works have been
declared to be for the general advantage of Canada.
Both therefore came under paragraphs 92(10(a) and
(c). The word "undertaking" was therefore well cho-
77 Re Alltrans Express Ltd. and Workers' Compensation
Board of British Columbia (1983), 149 D.L.R. (3d) 385
(B.C.C.A.), at p. 386; Re Alltrans Express and Workers' Com
pensation Board of British Columbia (1980), 116 D.L.R. (3d)
79 (B.C.S.C.), at p. 80.
78 Alltrans Express Ltd. v. British Columbia (Workers' Com
pensation Board), [1988] 1 S.C.R. 897.
79 Canadian National Railway Co. v. Courtois, [1988] 1
S.C.R. 868; Canadian National Railways Act, R.S.C., 1985, c.
C-19, s. 18.
sen by Beetz J. in relation to paragraphs 92(10)(a),(b)
and (c). In the case at bar , we are concerned with a
"work".
Further down, when dealing with the critics of the
Bell Canada 1966 case, Beetz J. again is very pre
cise: 8 °
General legislation on the management and working conditions
of undertakings is legislation on matters falling within the
property and civil rights class. But particular legislation on the
management of federal undertakings and their working condi
tions, like that in the Canada Labour Code, is legislation on
matters falling within an exclusively federal class of subjects,
that of federal undertakings. [Emphasis added.]
Tarnopolsky J.A. is of course correct when, at
pages 761 and 766 of the Ontario Hydro case, he
cites Duff J. in Reference re Waters and Water-Pow
ers. 81 There, Duff J., for the Court, said with regard
to paragraph 92(10)(c):
The authority created by s. 92(10c) is of a most unusual
nature. It is an authority given to the Dominion Parliament to
clothe itself with jurisdiction—exclusive jurisdiction—in
respect of subjects over which, in the absence of such action by
Parliament, exclusive control is, and would remain vested in
the provinces. Parliament is empowered to withdraw from that
control matters coming within such subjects, and to assume
jurisdiction itself. It wields an authority which enables it, in
effect, to rearrange the distribution of legislative powers
effected directly by the Act, and, in some views of the enact
ment, to bring about changes of the most radical import, in that
distribution; and the basis and condition of its action must be
the decision by Parliament that the "work or undertaking" or
class of works or undertakings affected by that action is "for
the general advantage of Canada," or of two or more of the
provinces; which decision must be evidenced and authenti
cated by a solemn declaration, in that sense, by Parliament
itself. [Emphasis added.]
There is however in paragraph 92(10)(c) no refer
ence to "undertaking". Besides, Reference re Waters
and Water-Powers is previous to the decision of the
Judicial Committee of the Privy Council in the Regu
lation and Control caseR 2 where the distinction
80 Bell Canada, supra, at p. 841.
81 [1929] S.C.R. 200, at p. 220.
82 [1932] A.C. 304 (P.C.), at p. 315.
between a "work" (defined in Montreal City) 83 and
an "undertaking" comes clear. Moreover, the
Supreme Court of Canada was not, in 1929, the court
of last resort for Canada.
The issue at bar, in my view, has never been
decided by a court of last resort.
I come to the conclusion that the Canada Labour
Code applies to the workers in the case at bar. Fed
eral legislative jurisdiction over a work includes inter
alia regulation for the construction, repairs and alter
ations of a work, and also, it seems to me, for its
management. 84
While I agree with the applicant's submission that
a work does not have labour relations, and that pre
sumably labour relations entail relationships between
an undertaker and its employees, nevertheless, start
ing from the proposition, recognized by our case law,
that Parliament can validly control the movement of
grain entering elevators because it has legislative
jurisdiction over the use of the premises, it should
follow that federal legislation can validly govern the
working conditions of those directly involved in the
operation of the work since both employer and
employees have duties and responsibilities on the
premises. Parliament's legislative jurisdiction over a
"work" under subsection 91(29) is plenary. Labour
relations over a work declared are therefore "matters"
coming within the class of subjects comprised in sub
section 91(29) of the Constitution Act, 1867.
This conclusion has the effect of balkanizing 85 the
labour relations at Shur Gain in Truro, N.S. since its
employees, other than those directly involved in the
operation of the mill, remain under provincial juris
diction. I have difficulty however with the proposi
tion that Parliament would have legislative jurisdic
tion over a "work" and, at the same time, be
83 Montreal City, supra, at p. 342.
84 These words were used in a different context in Canadian
Pacific Railway Company v. Notre Dame de Bonsecours (Cor-
poration of), [1899] A.C. 367 (P.C.), at p. 372.
85 I borrow the use of this word in the present context from
Galligan J.A. (dissenting) in Ontario Hydro, supra, at p. 770.
incapable of adopting back-to-work legislation so as
to make the work "functional". Effective control of
the work would require effective control over those
directly involved in its operations.
I cannot share, however, the view of those who
would use the word "functional" to mean that federal
jurisdiction attaches to the undertaking because of the
work. The declaratory power is an exceptional power
and what is acquired by Parliament, as a consequence
of the use of such a power, is legislative jurisdiction
over the work, not over the undertaking.
I conclude that section 4 of the Canada Labour
Code applies only to those employees of the appli
cant described in the Board's order of April 10, 1990,
and that the Board correctly decided the matter
before it.
I would dismiss this section 28 application.
* * *
The following are the reasons for judgment ren
dered in English by
PxA'rrE J.A.: I agree with the conclusion reached by
my colleague Desjardins. I also agree with much of
what she says in her reasons. However, on two
points, I would express myself a little differently.
The applicant's contention that section 76 of the
Canadian Wheat Board Act should, in spite of the
generality of its terms, be interpreted as referring
only to the feed mills situated in Western Canada (or,
more accurately, in the "designated area" defined in
section 2) is based on the premise, which was
accepted by the Quebec Court of Appeal in Burns c.
Cie du trust national Ltée,R 6 that the other provisions
of the Act do not apply outside of that area. That pre
mise is false. Most of the other provisions of the Act
either apply to the whole country or may, if the Gov-
86 See Bums c. Cie du trust national Ltée (10 July 1990),
Montréal 500-09-000728-857, 500-09-000731-851 (C.A.),
Monet, Vallerant and Baudoin JJ., not yet reported.
ernor in Council so decides, have such a general
application.
As to the constitutional argument raised by the
applicant, I would, like the Board, reject it for the
reason that it is contrary to the jurisprudence of the
Court.
In C.S.P. Foods Ltd. v. Canada Labour Relations
Board, 87 we refused to set aside for lack of jurisdic
tion a decision of the Canada Labour Relations Board
certifying a union as bargaining agent for certain
employees of a company which owned and operated
a feed mill (which was a federal work by reason of
the declaration contained in the Canadian Wheat
Board Act) for the reason that the record did not
show that the work done by the employees in ques
tion was not closely related to the operation of the
feed mill. While that decision did not discuss or even
allude to the distinction that may be made in respect
of the federal legislative competence in the field of
labour relations between federal works and federal
undertakings, it clearly assumed the authority of Par
liament to legislate with respect to the labour rela
tions of an undertaking operating a federal work with
those of its employees whose functions are closely
related to the operation of that work.
In Central Western Railway Corp. v. U.T. U., 88 the
Court had to determine whether Parliament could
legislate with respect to the labour relations of a com
pany whose sole raison d'être and activity was the
operation of a small railway line that had been
declared to be a federal work. In that case, my col
league Hugessen J.A. took the position that, while
Parliament's legislative jurisdiction with respect to
federal undertakings clearly includes the power to
legislate with respect to the labour relations of those
undertakings, its jurisdiction with respect to federal
works does not include the power to regulate the
labour relations of the undertakings operating those
works. That view, though expressed with my col-
" [1979] 2 F.C. 23.
88 [1989] 2 F.C. 186.
league's usual clarity and persuasiveness, was
rejected by the majority of the Court who held that
Parliament has the power to legislate with respect to
the labour relations of an undertaking that has no
other activity than that of operating a federal work.
The decision of the Court in Cargill Grain Co. v.
Canada 89 did not, as I read it, modify this jurispru
dence. It set aside a decision of the Canada Labour
Relations Board certifying a union as the bargaining
agent for a group of employees of an undertaking
operating a federal work for the simple reason that
the connection between the work done by those
employees and the federal work in question was too
remote to found federal jurisdiction. Here, this prob
lem does not arise since the work done by the
employees clearly has a direct and close connection
with the operation of a federal work.
STONE J.A.: I agree.
89 [1990] 1 F.C. 511.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.