Canada Labour Relations Board et al. v. Paul L’Anglais Inc. et al.

English version of the judgment of the Court delivered by

We conclude therefore that Télé-Métropole Inc., Paul L’Anglais Inc. and J.P.L. Productions Inc. are federal undertakings and that their employees perform work which falls under the jurisdiction established by the Canada Labour Code. In the circumstances, the Board will pursue its investigation to determine whether section 133 is applicable to the three companies in question.

[TRANSLATION] A legislature is presumed to legislate within the limits of its authority. The Legislature of Quebec has no authority to alter, and there is no indication that it intended to alter, by this 1957 amendment, the superintending and reforming power which the Superior Court has had since before Confederation, both by virtue of its enabling Act and as a consequence of the powers inherent in its function, over agencies which are now within the jurisdiction of Parliament and which exercise a judicial or quasi‑judicial function in the affairs of the province and make decisions which are implemented there. Parliament, which since 1867 has alone been competent to do so—cf. s. 129 of the Imperial Act, 30-31 Victoria, c. 3 (British North America Act)—has not in general terms at least conferred this superintending and reforming power on any other court.

101. The Parliament of Canada may, notwithstanding anything in this Act, from Time to Time provide for the Constitution, Maintenance, and Organization of a General Court of Appeal for Canada, and for the Establishment of any additional Courts for the better Administration of the Laws of Canada.

18. The Trial Division has exclusive original jurisdiction

(a) to issue an injunction, writ of certiorari, writ of prohibition, writ of mandamus or writ of quo warranto, or grant declaratory relief, against any federal board, commission or other tribunal; and

(b) to hear and determine any application or other proceeding for relief in the nature of relief contemplated by paragraph (a), including any proceeding brought against the Attorney General of Canada, to obtain relief against a federal board, commission or other tribunal.

The Federal Court of Appeal appears to have treated the jurisdictional issue in this case as one of judicial review of an administrative board which has taken jurisdiction in an administrative sense. On this view, quite clearly, the onus would rest upon the applicant for judicial review and not, by implication, upon the Union. But what is in question here is not the Board’s administrative jurisdiction in the classic sense of that term, but whether the jurisdiction given by Parliament to the Canada Labour Relations Board, through s. 108 of the Code, extends to the labour relations of the employees engaged in the work, undertaking or business here at issue, i.e., the installation department of Telecom. The answer to the question posed in the order granting leave must be found, not in the principles of judicial review of administrative action, but in the principles governing the constitutional division of authority over labour relations.

Equally clear from the record is the near-total absence of the relevant and material “constitutional facts” upon which such a delicate judgment must be made. On the evidence in the record, this Court is simply not in a position to resolve the important question of constitutional jurisdiction over the labour relations of the employees involved in the installation department of Telecom.

…testamentary matters and causes with respect to deceased Indians come within the class of subjects of “Indians and Lands reserved for the Indians” and that Parliament can constitutionally oust the jurisdiction of provincial courts in these as well as in other federal matters and vest it in a federal agency, subject perhaps to an obvious qualification: while Parliament has the power to establish courts for the administration of the laws of Canada, it does not necessarily follow that it can clothe a Minister, or any official or board of a nonjudicial nature with all the functions of a superior court; the powers of Parliament are limited by the wording of s. 101 of the British North America Act, 1867, as well as by the federal and fundamental nature of the Constitution which implies an inherent and entrenched jurisdiction in the courts to adjudicate in constitutional matters.

It is settled that in s. 101 the expression “Laws of Canada” means laws enacted by Parliament.

It is to be observed that the “additional courts”, which Parliament is hereby authorized to establish, are courts “for the better administration of the laws of Canada.” In the collocation in which they are found, and having regard to the other provisions of the British North America Act , the words, “the laws of Canada,” must signify laws enacted by the Dominion Parliament and within its competence.

It is also well to note that s. 101 does not speak of the establishment of Courts in respect of matters within federal legislative competence but of Courts “for the better administration of the laws of Canada”. The word “administration” is as telling as the plural words “laws”, and they carry, in my opinion, the requirement that there be applicable and existing federal law, whether under statute or regulation or common law, as in the

case of the Crown, upon which the jurisdiction of the Federal Court can be exercised.

[TRANSLATION] The question of whether the Canada Labour Relations Board had jurisdiction to hear the application for certification undoubtedly involves a question of supervision of a lower court, in the case at bar a “federal board, commission or other tribunal” within the meaning of s. 2(g) of the Federal Court Act (S.C. 1970-71-72, c. 1 and R.S.C. 1970, 2nd Supp., c. 10), and thereby the incidental interpretation of the Canada Labour Code. However, the case at bar involves above all a question of interpretation of the Canadian Constitution, as to whether initially the provisions of the Canada Labour Code must be applied here.

The problem raised in the case at bar requires the application of rules of law which have their source in the British North America Act , cited above, and not in the Canada Labour Code (R.S.C. 1970, c. L-1 as amended), which could not be applied if the activities of respondents fall within provincial legislative authority.

(a) For a declaration that upon its true construction the Federal Act in whole or in part, does not apply to the Society or to its members;

(b) In the alternative, for a declaration that if upon its true construction the Federal Act or any part thereof applies to the Society or to its members, then to such extent the said Act or any relevant part thereof is ultra vires the Parliament of Canada and is of no force and effect in respect of the Society or its members;

3. Does the Federal Court, Trial Division, have exclusive jurisdiction to grant declaratory or injunctive relief against the Attorney General of Canada, the Restrictive Trade Practices Commission, the Chairman of the said commission, and the Director of Investigation and Research, in connection with:

(i) the interpretation or

(ii) constitutional applicability of the Combines Investigation Act to the Law Society of British Columbia, its governing body or its members?

There is, however, another and more fundamental aspect to this issue. The provincial superior courts have always occupied a position of prime importance in the constitutional pattern of this country. They are the descendants of the Royal Courts of Justice as courts of general jurisdiction. They cross the dividing line, as it were, in the federal‑provincial scheme of division of jurisdiction, being organized by the provinces under s. 92(14) of the Constitution Act and are presided over by judges appointed and paid by the federal government (sections 96 and 100 of the Constitution Act). As was said by Pigeon J. in R. v. Thomas Fuller Construction Co. (1958) Ltd. et al., [1980] 1 S.C.R. 695, at p. 713:

It must be considered that the basic principle governing the Canadian system of judicature is the jurisdiction of the superior courts of the provinces in all matters federal and provincial. The federal Parliament is empowered to derogate from this principle by establishing additional courts only for the better administration of the laws of Canada.

Earlier in his judgment Pigeon J. quoted from Chief Justice Ritchie in Valin v. Langlois (1879), 3 S.C.R. 1, at pp. 19-20:

…These courts (provincially organized superior courts) are surely bound to execute all laws in force in the Dominion, whether they are enacted by the Parliament of the Dominion or by the Local Legislatures, respectively. They are not mere local courts for the administration of the local laws passed by the Local Legislatures of the Provinces in which they are organized. They are the courts which were the established courts of the respective Provinces before Confederation,… They are the Queen’s Courts, bound to take cognizance of and execute all laws, whether enacted by the Dominion Parliament or the Local Legislatures

The jurisdiction of superior courts, and indeed other courts in the provinces, to review the constitutionality of federal statutes was the subject of comment in this court in Attorney General of Canada et al. v. Canard, [1976] 1 S.C.R. 170, where Beetz J. at p. 216 stated:

Once it is conceded that the Minister has jurisdiction to appoint an administrator, the exercise of this jurisdiction can only be reviewed in accordance with the Indian Act and the Federal Court Act and not by the Courts of Manitoba. It is true that the latter’s jurisdiction had not been questioned by the appellants, presumably because the action taken by the respondent challenged the constitutional validity and the operation of the Indian Act and the Manitoba Courts had jurisdiction to adjudicate upon this issue as well as upon appellants’ counterclaim. The Courts of Manitoba could not on the other hand hear an appeal from the Minister’s decision or otherwise review it.

The Federal Court, as the successor to the Exchequer Court of Canada which was first established by Parliament in 1875, was established pursuant to the authority of s. 101 of the Constitution Act which provides “for the Establishment of any additional Courts for the Better Administration of the Laws of Canada”. The expression “laws of Canada” has been settled as meaning the laws

enacted by the Parliament of Canada, at least for the purposes of this appeal: Thomas Fuller, supra, per Pigeon J. at p. 707. It is difficult to see how an argument can be advanced that a statute adopted by Parliament for the establishment of a court for the better administration of the laws of Canada can at the same time include a provision that the provincial superior courts may no longer declare a statute enacted by Parliament to be beyond the constitutional authority of Parliament. Sections 17 and 18 of the Federal Court Act must, in the view of the appellants, be so construed. In my view Parliament lacks the constitutional authority to so provide. To do so would strip the basic constitutional concepts of judicature of this country, namely, the superior courts of the provinces, of a judicial power fundamental to a federal system as described in the Constitution Act. At the same time it would leave the provincially-organized superior courts with the invidious task of execution of federal and provincial laws, to paraphrase the Valin case, supra, while being unable to discriminate between valid and invalid federal statutes so as to refuse to “execute” the invalid statutes. For this second and more fundamental reason I conclude that the British Columbia courts have the requisite jurisdiction to entertain the claims for declarations herein made. Moreover, it would amount to an attempt by Parliament to grant exclusive jurisdiction to the Federal Court to administer the “laws of Canada” while the validity of those laws remained unknown. Any jurisdiction in Parliament for the grant of exclusive jurisdiction to the Federal Court must be founded on exclusive federal powers under s. 91 of the Constitution Act. In so far as there is an alleged excess of that jurisdiction by Parliament, s. 101 of the Constitution Act cannot be read as the constitutional justification for the exclusion from the superior courts of the jurisdiction to pronounce upon it.

122. (1).Subject to this Part, every order or decision of the Board is final and shall not be questioned or reviewed in any court, except in accordance with paragraph 28(1)(a) of the Federal Court Act.

(2) Except as permitted by subsection (1), no order, decision or proceeding of the Board made or carried on under or purporting to be made or carried on under this Part shall be

(a) questioned, reviewed, prohibited or restrained, or

(b) made the subject of any proceedings in or any process of any court, whether by way of injunction, certiorari, prohibition, quo warranto, or otherwise,

on any ground, including the ground that the order, decision or proceeding is beyond the jurisdiction of the Board to make or carry on or that, in the course of any proceeding, the Board for any reason exceeded or lost its jurisdiction.

In this Act

“federal work, undertaking or business” means any work, undertaking or business that is within the legislative authority of the Parliament of Canada, including without restricting the generality of the foregoing:

…

(f) a radio broadcasting station;

The issue must be resolved in the light of established principles the first of which is that Parliament has no authority over labour relations as such nor over the

terms of a contract of employment; exclusive provincial competence is the rule: Toronto Electric Commissioners v. Snider, [1925] A.C. 396. By way of exception however, Parliament may assert exclusive jurisdiction over these matters if it is shown that such jurisdiction is an integral part of its primary competence over some other single federal subject: In re the validity of the Industrial Relations and Disputes Investigations Act [1955] S.C.R. 529 (the Stevedoring case). It follows that primary federal competence over a given subject can prevent the application of provincial law relating to labour relations and the conditions of employment but only if it is demonstrated that federal authority over these matters is an integral element of such federal competence; thus, the regulation of wages to be paid by an undertaking, service or business, and the regulation of its labour relations, being related to an integral part of the operation of the undertaking, service or business, are removed from provincial jurisdiction and immune from the effect of provincial law if the undertaking, service or business is a federal one; In re the application of the Minimum Wage Act of Saskatchewan to an employee of a Revenue Post Office [1948] S.C.R. 248 (the Revenue Post Office case); Quebec Minimum Wage Commission v. Bell Telephone Company of Canada [1966] S.C.R. 767 (the Bell Telephone Minimum Wage case); Letter Carriers’ Union of Canada v. Canadian Union of Postal Workers [1975] 1 S.C.R. 178 (the Letter Carriers’ case). The question whether an undertaking, service or business is a federal one depends on the nature of its operation: Pigeon J. in Canada Labour Relations Board v. City of Yellowknife, [1977] 2 S.C.R. 729, at p. 736. But, in order to determine the nature of the operation, one must look at the normal or habitual activities of the business as those of “a going concern”, (Martland J. in the Bell Telephone Minimum Wage case at p. 772), without regard for exceptional or casual factors; otherwise, the Constitution could not be applied with any degree of continuity and regularity; Agence Maritime Inc. v. Canada Labour Relations Board [1969] S.C.R. 851 (the Agence Maritime case); the Letter Carriers’ case.

(1) Parliament has no authority over labour relations as such nor over the terms of a contract of employment; exclusive provincial competence is the rule.

(2) By way of exception, however, Parliament may assert exclusive jurisdiction over these matters if it is shown that such jurisdiction is an integral part of its primary competence over some other single federal subject.

(3) Primary federal competence over a given subject can prevent the application of provincial law relating to labour relations and the conditions of employment but only if it is demonstrated that federal authority over these matters is an integral element of such federal competence.

(4) Thus, the regulation of wages to be paid by an undertaking, service or business, and the regulation of its labour relations, being related to an integral part of the operation of the undertaking, service or business, are removed from provincial jurisdiction and immune from the effect of provincial law if the undertaking, service or business is a federal one.

(5) The question whether an undertaking, service or business is a federal one depends on the nature of its operation.

(6) In order to determine the nature of the operation, one must look at the normal or habitual activities of the business as those of a “going concern”, without regard for exceptional or casual factors; otherwise, the Constitution could not be applied with any degree of continuity and regularity.

A recent decision of the British Columbia Labour Relations Board, Arrow Transfer Co. Ltd., [1974] 1 Can. L.R.B.R. 29, provides a useful statement of the method adopted by the courts in determining constitutional jurisdiction in labour matters. First, one must begin with the operation which is at the core of the

federal undertaking. Then the courts look at the particular subsidiary operation engaged in by the employees in question. The court must then arrive at a judgment as to the relationship of that operation to the core federal undertaking, the necessary relationship being variously characterized as “vital”, “essential” or “integral”. As the Chairman of the Board phrased it, at pp. 34-5:

In each case the judgment is a functional, practical one about the factual character of the ongoing undertaking and does not turn on technical, legal niceties of the corporate structure or the employment relationship.

[TRANSLATION] (7.) On the said hearing days, the evidence established beyond any doubt:

(a) That as regards applicant Paul L’Anglais Inc.:

1. its activities are limited to the commercial representation of various television stations, in particular for the sale of air time for advertising purposes;

2. it is not a broadcaster of programs and holds no licence for that purpose;

(b) That as regards applicant J.P.L. Productions Inc.:

1. its activities are limited to the production of commercials and audio-visual programs;

2. it does not broadcast programs or commercials, and holds no licence for that purpose;

3. the commercials and audio-visual programs it produces are the property of its customers and it is they who determine how they are used (that is, their broadcasting or other use);

[TRANSLATION] Paul L’Anglais Inc. sells air time not only for CFTM-TV, Channel 10… but also for five other television stations, which are CFCM-TV Quebec City, CFPM-TV Chicoutimi, CHLT-TV Sherbrooke, CHEM-TV Trois-Rivières and CHAU-TV Carleton, and for all the TVA network;…

[TRANSLATION] In addition to the sale of air time, Paul L’Anglais Inc. also in some cases handles the sale of production both for CFTM-TV and for other television stations which have no affiliation with CFTM-TV Channel 10 in Montreal:…

[TRANSLATION]… is… essentially a production undertaking but… in no way is it exclusively for CFTM-TV, since J.P.L. Productions Inc. produces commercials for institutional and private bodies as well as documentaries for the same customers; in addition, this company has obtained the contract to produce certain educational programs to be televised by the Quebec Department of Education.

[TRANSLATION] With regard to J.P.L. Productions Inc., as its name indicates, the essential purpose of this company is the production of audio-visual programs, sound tracks for televised series, and programs for various institutional or private bodies: several of these productions are not even intended to be televised.

J.P.L. Productions has a variety of customers, ranging from CFTM-TV through the Quebec Department of Education to Radio-Canada, and including various private companies.

“broadcasting” means any radiocommunication in which the transmissions are intended for direct reception by the general public;

“radiocommunication” means any transmission, emission or reception of signs, signals, writing, images, sounds or intelligence of any nature by means of electromagnetic waves of frequencies lower than 3,000 Gigacycles per second propagated in space without artificial guide;

[TRANSLATION] In the case at bar we do not contend that no relationship existed between the activities of Télé-Métropole Inc. and those of Paul L’Anglais and J.P.L. Productions Inc., or that the fact that a television broadcasting station has its air time sales company or production company does not constitute a benefit to its operations. We are simply saying that these links with a television broadcasting undertaking do not have the

effect of making the undertaking which produces the programs and the undertaking which sells air time component parts of the television broadcasting in all respects. We argue that Paul L’Anglais Inc. and J.P.L. Productions Inc. are not engaged in television broadcasting, but rather in the sale in the one case, and production in the other, of television programming.