Supreme Court of Canada
Letter Carrier’s Union of Canada v. Canadian Union of Postal Workers et al., [1975] 1 S.C.R. 178
Date: 1973-10-02
The Letter Carriers’ Union of Canada Appellant;
and
Canadian Union of Postal Workers
and
M & B Enterprises Ltd. Respondents.
1973: June 20; 1973: October 2.
Present: Fauteux C.J. and Abbott, Martland, Judson, Ritchie, Spence, Pigeon, Laskin and Dickson JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR SASKATCHEWAN
Labour relations—Certification—Jurisdiction—Company holding contracts for delivery and collection of mail—Activities principally but not exclusively confined to work for Post Office—Whether company’s drivers employees within meaning of s. 108(1) of Canada Labour Code, R.S.C. 1970, c. L-1.
The respondent company (M & B Ltd.) held a number of contracts with the Canada Post Office for the delivery and collection of mail and the work that was thereby involved constituted approximately 90 per cent of the company’s business. The company also held an “A” licence under which it did certain furniture hauling and this accounted for the remaining part of its business.
An order made by the Labour Relations Board of Saskatchewan pursuant to s. 5 of The Trade Union Act, R.S.S. 1965, c. 287, certified the respondent union as the representative, for the purpose of collective bargaining, of the bargaining unit composed of all the truck drivers employed by M & B Ltd., except those acting on its behalf in a confidential capacity and those having authority to employ and discharge other employees.
A notice of intervention had been filed on behalf of the appellant union, prior to the granting of the board’s certification order, wherein it was claimed that: “The Intervening Trade Union is of the view that the employees in question are covered by the Canada Labour Code.” An application, by way of certiorari, to quash the board’s order was dismissed by the Court of Appeal. With leave, the appellant union appealed to this Court.
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Held: The appeal should be allowed.
There could be no doubt that the subject-matter of the postal service is expressly assigned to the exclusive legislative authority of Parliament under s. 91(5) of the B.N.A. Act, and that employer and employee relations in that service are correspondingly within that authority. The work of the truck drivers of M & B Ltd. was an integral part of the effective operation of the Post Office and, therefore, legislation in relation thereto could only be competently enacted by the Parliament of Canada. The drivers in question were employees within the meaning of s. 108(1) of the Canada Labour Code. Exclusive employment upon or in connection with a federal work was not a necessary prerequisite to inclusion in the class of employees designated by s. 108(1).
As 90 per cent of the activities of M & B Ltd. was confined to work for the Post Office, it was obvious that this work composed the main and principal part of its business and the Labour Relations Board could not acquire jurisdiction to entertain an application for certification of a bargaining representative on behalf of a unit composed of all truck driver employees of such a company, other than supervisors, simply because two or three drivers in the unit were occasionally engaged in casual employment driving trucks for the transportation of furniture for others than the Post Office.
Reference re Industrial Relations and Disputes Investigation Act, etc., [1955] S.C.R. 529, explained; Toronto Electric Commissioners v. Snider et al., [1925] A.C. 396; Reference re Minimum Wage Act of Saskatchewan, [1948] S.C.R. 248; Bachmeier Diamond and Percussion Drilling Co. Ltd. v. Beaverlodge District of Mine, Mill and Smelter Workers’ Local Union No. 913, (1962), 35 D.L.R. (2d) 241, referred to.
APPEAL from a judgment of the Court of Appeal for Saskatchewan[1], dismissing an application for certiorari to quash an order of the Labour Relations Board of Saskatchewan. Appeal allowed.
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D.K. MacPherson, Q.C., for the appellant.
G.J.D. Taylor, Q.C., for the respondents.
S.F. Froomkin, for the Attorney General of Canada.
K. Lysyk and D.A. McKillop, for the Attorney General of Saskatchewan.
The judgment of the Court was delivered by
RITCHIE J.—This is an appeal from a judgment of the Court of Appeal for Saskatchewan dismissing the application of the appellant union, by way of certiorari, to quash an order made by the Labour Relations Board of Saskatchewan pursuant to s. 5 of The Trade Union Act, R.S.S. 1965, c. 287, which certified the respondent union as the representative, for the purpose of collective bargaining, of the bargaining unit composed of all the truck drivers employed by M & B Enterprises Ltd., except those acting on its behalf in a confidential capacity and those having authority to employ and discharge other employees.
A notice of intervention had been filed on behalf of the appellant union, prior to the granting of the board’s certification order, wherein it was claimed that:
The Intervening Trade Union is of the view that the employees in question are covered by the Canada Labour Code.
It was when this notice was ignored and certification was granted to the respondent union that the appellant brought its motion to quash before the Court of Appeal based upon the following grounds:
THAT the Labour Relations Board was without jurisdiction to make the Order hereinbefore referred to because of the provisions of Sections 91 and 92 of the British North America Act, 1867, 30 Victoria, Chapter 3, and because the work being done by the Respondent Company and by the employees of the Respondent Company within the aforesaid bargaining unit, formed an integral part of or was necessarily incidental to the postal service of Canada; and
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because of the provisions of Section 108(1) of the Canada Labour Code, R.S.C. 1970 Chapter L-1.
The section last referred to occurs in Part V of the Canada Labour Code which is entitled “Industrial Relations” and reads as follows:
108. (1) This Division applies in respect of employees who are employed upon or in connection with the operation of any federal work, undertaking or business and in respect of the employers of all such employees in their relations with such employees and in respect of trade unions and employers’ organizations composed of such employees or employers.
It has been accepted, at least since the case of Toronto Electric Commissioners v. Snider et al.[2], that, generally speaking, legislation respecting employer and employee relationships relates to property and civil rights and is therefore within the exclusive jurisdiction of the provincial legislature, but under the Industrial Relations and Disputes Investigation Act, 1948 (Can.), c. 54, which was the precursor of the present Canada Labour Code, and the decision of this Court in the Reference relating to the validity and application of that statute, it has been established that it is not within the competency of a provincial legislature to legislate concerning industrial relations of persons employed in a work, business or undertaking coming within the exclusive jurisdiction of the Parliament of Canada. There can be no doubt that the subject-matter of the postal service is expressly assigned to the exclusive legislative authority of Parliament under s. 91(5) of the British North America Act, and that employer and employee relations in that service are correspondingly within that authority. If authority were needed for this latter proposition, it is to be found in Reference re Minimum Wage Act of Saskatchewan[3], particularly per Rinfret C.J., at p.253.
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In any event, it was common ground between the parties in the present case in this Court and in the Court of Appeal that s. 108(1) of the Canada Labour Code was validly enacted by Parliament and that the postal service is a “federal work, undertaking or business” within the meaning of this section, and it follows, in my view, that if the truck drivers employed by M & B Enterprises Ltd. were found to be employees who are employed upon or in connection with the operation of the Post Office, the Saskatchewan Labour Relations Board would be without jurisdiction to entertain the application for certification.
Mr. Justice Maguire, in the course of the reasons for judgment which he delivered on behalf of the Court of Appeal for Saskatchewan, appears to have interpreted the judgment of this Court in Reference as to the Validity of the Industrial Relations and Disputes Investigation Act, etc.[4], (hereinafter referred to as “the Stevedores case”) as authority for the proposition that s. 108(1) is only applicable to employees who are “exclusively” employed upon or in connection with the operation of any federal work, undertaking or business, and applying this test to the facts of the present case, he concluded that the section did not apply to the truck drivers employed by M & B Enterprises Ltd.
I am satisfied to adopt the following statement of the facts contained in the reasons for judgment of Mr. Justice Maguire:
A review of the relevant facts is required. M & B Enterprises Ltd., is a company incorporated under the laws of Saskatchewan, with head office in Regina, Saskatchewan, and operating in and from said city.
This company held seven contracts with Canada Post Office for delivery and collection of mail, of which six may be termed highway service routes running from Regina to a designated urban point and including all intervening post offices. The remaining contract covered the City of Regina.
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M & B Enterprises Ltd., owned or provided all motor vehicles used in this contract work, which must meet specifications, including color, and name thereon, as specified by the Postmaster General. Eight employees are engaged on highway routes, and up to fifteen full-time plus some part-time employees in Regina urban duties. Two of the latter are supervisors with power to employ or discharge employees and thus not within the unit of employees for collective bargaining purposes under the Saskatchewan enactment. I am of the opinion, although this is not fully material to the issues to be determined, that they are employees within the meaning of that word as found in the Canada Labour Code, s. 108(1), quoted later.
Each employee engaged in performances of these contracts must be acceptable to Post Office official, or officials; be fingerprinted, and take an Oath specified by the Post Office.
Mr. Justice Maguire proceeded to describe the duties performed by the employees of M & B Enterprises Ltd. on behalf of the Post Office and indicated that these duties involved responsibility for delivering and sorting mail, the custody of keys permitting access to post offices and the collection of moneys due on c.o.d. parcels. The control exercised over these employees by the Post Office is further indicated in the following paragraph of Mr. Justice Maguire’s reasons:
Each company employee termed “carrier” is provided with an identification card supplied by the Post Office, and is required to carry this at all times while on duty. In addition, the Post Office supplies to each carrier a book, or pamphlet, of instructions or regulations, covering the performance of his duties.
In my opinion the work so described which is performed by these employees is essential to the function of the postal service and is carried out under the supervision and control of the Post Office authorities, but the Court of Appeal
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concluded that the truck drivers in question were not employees within the meaning of s. 108(1) because the employer company occasionally used its trucks in the summer time for moving furniture. These latter activities are described by Mr. Justice Maguire where he says:
One other factor of importance must be noted. M & B Enterprises Ltd., in 1969, had acquired from a transport trucker, with the approval of the Highway Traffic Board of Saskatchewan, what is termed an “A” licence, permitting it to transport, provincially or inter-provincially, household goods, oil products and twine. This licence had been continued in effect up to the time of the application now under review. The company, under this licence, during summer months, engaged in the transport of household goods, both locally and to points in other Provinces. Vehicles used in this transport included, at times, one or two units used or held in reserve for mail transport. Employees engaged in this work were usually the two supervisors, but on occasion also one or two employees otherwise normally engaged in the mail transport. These might be engaged during such summer months up to twenty per cent of full time in such “A” class transport. The percentage of what, I take from the evidence, to be gross income of the company from this “A” class transport, was ten per cent or less, and thus ninety per cent-plus comes from the mail contracts.
In the Stevedores case, supra, upon which the Court of Appeal relies, the question referred to this Court was:
Does the Industrial Relations and Disputes Investigation Act, Revised Statutes of Canada, 1952, Chapter 152, apply in respect of the employees in Toronto of the Eastern Canada Stevedoring Co., Ltd., employed upon or in connection with the operation of the work, undertaking or business of the company as hereinbefore described?
The description of the work is referred to in the reasons for judgment of the Chief Justice at p. 536 where he says:
That description is that the Company’s operations for the year 1954 “consisted exclusively of services rendered in connection with the loading and unloading of ships, pursuant to contracts with seven shipping com-
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panies to handle all loading and unloading of their ships arriving and departing during that season.”
In answering this question in the affirmative, the Court was concerned with the meaning to be attached to the language of s. 53 of the Act, which was the precursor of s. 108(1) of the Canada Labour Code, and which read, in part, as follows:
53. Part I applies in respect of employees who are employed upon or in connection with the operation of any work, undertaking or business that is within the legislative authority of the Parliament of Canada including, but not so as to restrict the generality of the foregoing,
(a) works, undertakings or businesses operated or carried on for or in connection with navigation and shipping, whether inland or maritime, including the operation of ships and transportation by ship anywhere in Canada;
. . .
and in respect of the employers of all such employees in their relations with such employees and in respect of trade unions and employers’ organizations composed of such employees or employers.
In construing this section, Chief Justice Kerwin observed that:
… the Act … should not be construed to apply to employees who are employed at remote stages, but only to those whose work is intimately connected with the work, undertaking or business. In pith and substance the Act relates only to matters within the classes of subjects within the specific heads of s. 91 of the British North America Act.
It was accepted that the seven shipping companies with which Eastern Canada Stevedoring Company had its contracts were engaged in “navigation and shipping” within the meaning of s. 92(10) of the British North America Act and were therefore businesses “within the legislative authority of the Parliament of Canada”, and I agree with the test adopted by Mr. Justice Estey at p. 568 in determining that the stevedores in question were employees within the meaning of s. 53 of the Industrial Relations and Disputes
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Investigation Act, supra. Mr. Justice Estey there said:
If, therefore, the work of stevedoring as performed under the foregoing contracts, is an integral part or necessarily incidental to the effective operation of these lines of steam ships, legislation in relation thereto can only be competently enacted by the Parliament of Canada.
That the work of the stevedores is an integral part would seem to follow from the fact that these lines of steam ships are engaged in the transportation of freight and the loading and unloading thereof, which would appear to be as necessary to the successful operation thereof as the enbussing and debussing of passengers in the Winner case, [1954] A.C. 541. The loading would, therefore, be an integral part of the operation of these lines of steam ships and, therefore, subject to the legislative jurisdiction of Parliament.
As I have indicated, it is beyond dispute that “postal service” is assigned to the exclusive legislative jurisdiction of the Parliament of Canada by s. 91(5) of the British North America Act and it appears to me from the facts which I have recited that the work of the truck drivers of M & B Enterprises Ltd. as performed under its contract with the Post Office was an integral part of the effective operation of the Post Office, and that all the language in the last-quoted passage from Mr. Justice Estey is directly applicable to the task performed by these employees in the business of the Post Office.
In the case of Bachmeier Diamond and Percussion Drilling Co. Ltd. v. Beaverlodge District of Mine, Mill and Smelter Workers ‘ Local Union No. 913[5], Mr. Justice Culliton, as he then was, speaking on behalf of the Court of Appeal for Saskatchewan at pp. 243-4, adopted the test prescribed by Estey J. in deciding that the employees of the applicant company in that case were not within the class of employees described in s. 53 of the Industrial Relations
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and Disputes Investigation Act, saying:
The question then is does the evidence establish that the work of the applicant company constitutes an integral part of, or is necessarily incidental to the work, undertaking or business of Eldorado?
Eldorado Mining and Refining Limited, to which the learned judge referred in this passage, was a corporation which had been declared to be a work for the general advantage of Canada.
In his reasons for judgment in the present case, Mr. Justice Maguire quoted the passage which I have cited from the judgment of Mr. Justice Culliton, and went on to say:
I am of the opinion that the part of the work of the employees here involved meets the tests just expressed but on the facts as above outlined, can it be said that they are “employees who were employed upon or in connection with the operation of any federal work, undertaking or business” as set out in s. 108(1) above? They are not “exclusively” so employed in any such federal work or undertaking nor is the work of the employer so limited.
It will thus be seen that in dismissing the application of the appellant union the Court of Appeal clearly based its decision on the ground that the Stevedores case had decided that employees could not meet the test prescribed by Mr. Justice Estey unless they were exclusively employed upon or in connection with the operation of a federal work.
With the greatest respect for the members of the Court of Appeal, it does not appear to me that the Stevedores case is an authority for any such proposition. It is true that the agreed facts upon which the first question posed to this Court was based included a statement that the operations of Eastern Canada Stevedoring Co. Ltd. consisted exclusively of services rendered in connection with the loading and unloading of ships, but there is, in my opinion, nothing in that case which decided that exclusive employment upon or in connection with a federal work is a necessary prerequisite to inclusion in the class
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of employees designated by s. 108(1). Indeed, the language used by Kerwin C.J., at p. 536 appears to indicate that the decision was strictly limited to the agreed facts. He there says:
In connection with the first question the fact that the company by its charter has power “to carry on a general dock and stevedoring business in all its branches” does not require us to consider the possibility of such a power being used or indeed the possibility of anything except the facts as they are presented to us.
It appears to me to follow from this statement that the fact of M & B Enterprises Ltd. having acquired a licence, “permitting it to transfer … household goods, oil products and twine”, standing by itself is not decisive in determining the character of the company’s business for the purpose of s. 108 (1). The sole question here is whether the very limited use made of that licence in transporting furniture for others than the Post Office is sufficient to clothe the Labour Relations Board of Saskatchewan with jurisdiction to certify a bargaining representative on behalf of a unit composed of all truck drivers other than the supervisors who were employed by the company with power to employ and discharge others.
As 90 per cent of the activities of M & B Enterprises Ltd. was confined to work for the Post Office, it is obvious that this work composed the main and principal part of its business and the Labour Relations Board of Saskatchewan cannot, in my opinion, acquire jurisdiction to entertain an application for certification of a bargaining representative on behalf of a unit composed of all truck driver employees of such a company other than supervisors, simply because two or three drivers in the unit were occasionally engaged in casual employment driving trucks for the transportation of furniture for others than the Post Office.
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It was contended on behalf of the respondent that the provisions of the Post Office Act, R.S.C. 1970, c. P-14, s. 21, providing that a mail contractor and the contractor’s employees are not “postal employees” were effective to exclude the truck drivers in question from the class described in s. 108(1), but this contention appears to ignore the fact that the definition of postal employee contained in the Post Office Act is effective only for the purpose of construing that statute and in my view this in no way alters the fact that the employment upon which the truck drivers in question were engaged was in connection with the operation of a federal work within the meaning of s. 108(1) of the Labour Code.
For all these reasons, I am of opinion that the bargaining unit in the present case was composed of persons employed in the business of the Post Office of Canada and the certification of bargaining agents to represent these employees was assigned exclusively to the Board appointed under the Canada Labour Code.
I would accordingly allow this appeal and direct that the aforesaid order of the Labour Relations Board of the Province of Saskatchewan dated February 17, 1972, be quashed without the actual issue of a writ of certiorari.
The appellant will have its costs throughout.
Appeal allowed with costs.
Solicitors for the appellant: MacPherson, Leslie & Tyerman, Regina.
Solicitors for the respondent, Canadian Union of Postal Workers: Goldenberg, Taylor, Tallis & Goldenberg, Saskatoon.