A-486-75
City of Yellowknife (Applicant)
v.
Canada Labour Relations Board and Public Ser
vice Alliance of Canada (Respondents)
Court of Appeal, Thurlow, Urie and Ryan JJ.—
Ottawa, November 6 and 20, 1975.
Judicial review—Canada Labour Relations Board certifying
respondent Alliance as bargaining agent for certain employees
of applicant—Whether Part V of Canada Labour Code applies
to employees of applicant—Canada Labour Code, R.S.C.
1970, c. L-1, ss. 2, 108 as am. S.C. 1972, c. 18—Municipal
Ordinance, R.O.N.W.T. 1974, c. M-15—Northwest Territories
Act, R.S.C. 1970, c. N-22, ss. 13 (c),(1),(h),(s),(u),(x)—British
North America Act, ss. 91(29), 92(8),(10),(13),(16).
The Canada Labour Relations Board certified the PSAC as
bargaining agent for employees (with certain exceptions) of
applicant, a municipality incorporated by the Commissioner in
Council of the Northwest Territories under the Municipal
Ordinance. Applicant applies to review and set aside the deci
sion, claiming that the Canada Labour Code, Part V, does not
apply to its employees.
Held, the Board lacked jurisdiction. Absent from powers
conferred on the Commissioner in Council is any power corre
sponding to that of a provincial legislature under section 92(10)
of the British North America Act with respect to local works
and undertakings. Section 108 of the Canada Labour Code
applies "in respect of employees ... employed upon or in
connection with ... any federal work, undertaking or business."
This expression is defined in section 2, and the key words are
"work, undertaking or business." The use of this expression in
its context in the definition coupled with the use of the expres
sion "federal work, undertaking or business" so defined con
fines the operation of the Act to works, undertakings and
businesses with respect to which Parliament has authority to
legislate. The statute should be read as legislation with respect
to works and undertakings that are under federal legislative
jurisdiction, whether by reason of section 91(29) and the
exceptions to section 92(10) of the B.N.A. Act, or otherwise,
and to businesses subject to federal legislative jurisdiction.
"Business" seems to refer primarily to commercial or industrial
matters, not to activities or functions as a whole normally
carried out by a municipal corporation. Nor are these activities
as a whole a work or undertaking within the meaning of the
expression. The Board erred in treating the whole opération of
the City as a "work, undertaking or business" within the
meaning of the definition.
Toronto Electric Commissioners v. Snider [1925] A.C.
396, applied.
JUDICIAL review.
COUNSEL:
G. A. Lucas for applicant.
D. Aylen, Q.C., for respondent Canada
Labour Relations Board.
M. Joyal, Q. C., and G. Robichon for respond
ent Public Service Alliance of Canada.
SOLICITORS:
Station & Lucas, Edmonton, for applicant.
Deputy Attorney General of Canada for
respondent Canada Labour Relations Board.
Honeywell, Wotherspoon, Ottawa, for
respondent Public Service Alliance of
Canada.
The following are the reasons for judgment
rendered in English by
THURLOW J.: This is an application to review
and set aside a decision of the Canada Labour
Relations Board certifying the respondent, Public
Service Alliance of Canada, under section 126 of
the Canada Labour Code, as the bargaining agent
for a unit of employees of the applicant
comprising:
All employees of the City of Yellowknife, Northwest Territo
ries, excluding those employed as secretary-treasurer-manager,
assistant secretary-treasurer, solicitor, consulting planning
engineer, superintendent, assistant works superintendent, city
clerk, executive assistant, executive secretary, accountant, pur
chasing agent, chief law enforcement officer, law enforcement
constable, fire chief, deputy fire chief, fire captain, fire preven
tion officer, fireman, and fire fighter, and excluding the part-
time employee in charge of the Hardie House way station.
The principal issue raised is whether Part V of the
Canada Labour Code applies to the employees of
the applicant. A second issue is whether the Board
erred in holding that the constitution of PSAC
permitted the admission of the employees in ques
tion as members of the Alliance.
The applicant is a municipal corporation incor
porated under legislation passed by the Commis
sioner in Council of the Northwest Territories. Its
establishment, organization, proceedings, powers
and functions are prescribed by the Municipal
Ordinance, chapter M-15 of the Revised Ordi
nances of the Northwest Territories, 1974. Its
activities include the making and enforcement of
local by-laws, the raising of money for municipal
purposes by land taxation and licensing of busi
nesses, and the provision of normal municipal or
local government services such as fire protection,
building inspection, snow removal, garbage collec
tion, recreational facilities, the opening and main
tenance of streets, water supply and sewers.
Its employees, apart from those classed as man
agement, include personnel engaged in general
administration, building inspection, licensing, fire
protection, by-law enforcement, and operating the
recreational facilities and the public works depart
ment which provides the sewer, water and other
city services. Some of these employees have been
excluded from the bargaining unit as defined by
the Board's certificate, but the definition itself is
all embracing, save for particular exceptions, and
is not related to the employees engaged in any
single or particular facet of the applicant's
activities.
The Commissioner in Council of the Northwest
Territories is established as a legislative body for
the Territories by the Northwest Territories Act,
R.S.C. 1970, c. N-22. Its legislative powers
resemble those of the provincial legislatures. In
particular the Commissioner in Council is author
ized by section 13, subject to the Act, and any
other Act of the Parliament of Canada, to make
ordinances in relation to:
(c) municipal institutions in the Territories, including local
administrative districts, school districts, local improvement
districts and irrigation districts;
(h) property and civil rights in the Territories;
(x) generally, all matters of a merely local or private nature
in the Territories.
Noticeably absent from the powers conferred is
any power corresponding to that of provincial
legislatures under head (10) of section 92 of the
British North America Act, 1867, with respect to
local works and undertakings. The powers, how
ever, include:
(f) the incorporation of companies with territorial objects
including tramways and street railway companies but exclud
ing railway, steamship, air transport, canal, telegraph, tele-
_
phone or irrigation companies.
(s) the closing up, varying, opening, establishing, building,
management or control of any roads, streets, lanes or trails
on public lands;
(u) the establishment, maintenance and management of hos
pitals in and for the Territories;
I turn now to Part V of the Canada Labour
Code. Section 108 provides:
108. This Part 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' organ
izations composed of such employees or employers.
The expression "federal work, undertaking or
business" is defined by section 2 of the Act as
meaning:
... any work, undertaking or business that is within the legisla
tive authority of the Parliament of Canada, including without
restricting the generality of the foregoing:
(a) a work, undertaking or business 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;
(b) a railway, canal, telegraph or other work or undertaking
connecting any province with any other or others of the
provinces, or extending beyond the limits of a province;
(c) a line of steam or other ships connecting a province with
any other or others of the provinces, or extending beyond the
limits of a province;
(d) a ferry between any province and any other province or
between any province and any other country other than
Canada;
(e) aerodromes, aircraft or a line of air transportation;
(f) a radio broadcasting station;
(g) a bank;
(h) a work or undertaking that, although wholly situated
within a province, is before or after its 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 provinces;
and
(i) a work, undertaking or business outside the exclusive
legislative authority of provincial legislatures;
For present purposes the important part of this
definition is the expression "work, undertaking or
business," which appears in the general outline
and in paragraphs (a) and (i). The use of this
expression in its context in the definition, coupled
with the use of the expression "federal work,
undertaking or business" so defined, appears to me
to confine the operation of the statute to works,
undertakings and businesses in respect to which
Parliament has authority to legislate. While it may
incidentally affect the rights of parties concerned
the statute is not to be regarded as legislation in
relation to property or civil rights in any province.
If it were to be so regarded it would, at least as far
as concerns any of the provinces, be ultra vires.
Toronto Electric Commissioners v. Snider'. It
should be read and interpreted as legislation in
relation to works and undertakings that are under
federal legislative jurisdiction, whether by reason
of the effect of head (29) of section 91 and the
exceptions to head (10) of section 92 of the British
North America Act, 1867, or otherwise, and to
businesses which are the subject of federal legisla
tive jurisdiction.
With respect to businesses, banking is a ready
example. But while the word "business" is not
confined or restricted to that subject matter it
seems to me that in its context in the definition,
preceded as it is in each instance by the words
"work, undertaking or", it does not have the very
broad meaning it might have in other contexts.
Without attempting any definition of the term in
its context it seems to me to refer primarily to
activities of a commercial or industrial nature. It
does not appear to me to refer to the activities or
functions, as a whole, normally carried out by
municipal corporations, even though in the ordi
nary use of language such activities and functions
can readily be called the business of such a
corporation.
Nor do I think these activities, as a whole, are a
work or undertaking within the meaning of the
expression. These words appear to me to be used in
the same sense as they are used in head (10) of
section 92 of the British North America Act, 1867.
Head (10) is one of sixteen heads of legislative
subjects which include heads (8), "Municipal
Institutions in the Province", (13), "Property and
Civil Rights in the Province", and (16) "Generally
all Matters of a merely local or private Nature in
the Province". In this context it would I think be
[1925] A.C. 396.
strained to hold that legislation in respect of the
normal activities, as a whole, of a municipal corpo
ration set up to carry out functions of local govern
ment and to provide normal municipal services was
referable to the power to legislate in relation to
local works and undertakings. Some of the activi
ties which a municipal institution is authorized to
carry out might be referable to that legislative
subject but that is a very different thing from
saying that all the various activities of such a local
government institution as a whole constitute a
local work or undertaking within the meaning of
that head.
Here what the Board appears to have done is to
treat the whole operation of the City of Yellow-
knife as a "work, undertaking or business" within
the meaning of the definition and to proceed to
certify a bargaining agent for a bargaining unit
comprising (with certain particularized excep
tions) all the City's employees.
In my opinion, the Board in so doing exceeded
its jurisdiction and the certificate should therefore
be set aside. In view of this conclusion it is un
necessary to consider the second issue raised by the
applicant.
* * *
URIE J. concurred.
* * *
RYAN J. concurred.
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.