A-201-78
C.S.P. Foods Ltd. (Applicant)
v.
Canada Labour Relations Board, Hugh J. Wagner
and N. William Greer, on their own behalf and on
behalf of a11 members of the Grain Services Union
(CLC) and Grain Services Union (CLC)
(Respondents)
Court of Appeal, Pratte, Heald and Le Dain JJ.—
Regina, November 6; Ottawa, December 21, 1978.
Judicial review — Labour relations — Jurisdiction —
Canada Labour Relations Board order — Union certified for
certain employees in office of general manager sales and
commodities of food processing and marketing arm of
Manitoba and Saskatchewan Wheat Pools — Board's juris
diction to make certification order challenged — Whether or
not employees performing functions connected with a federal
work — Whether or not nature of work performed in that
office severable from other operations — Canada Labour
Code, R.S.C. 1970, c. L-1 as amended by S.C. 1972, c. 18, ss.
2, 108 — Canada Grain Act, S.C. 1970-71-72, c. 7, s. 43(1) —
Canadian Wheat Board Act, R.S.C. 1970, c. C-12, s. 45 —
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
This is a section 28 application to review and set aside an
order of the Canada Labour Relations Board certifying the
Grain Services Union (CLC) as the bargaining agent for a unit
comprising all employees of C.S.P. Foods Ltd.—the food pro
cessing and marketing arm of the Manitoba and Saskatchewan
Wheat Pools—working in the office of the general manager
sales and commodities trading, excluding certain managerial
positions. The principal ground of attack on the Board's order
is that the Board lacked the jurisdiction to make it. If the
Board has jurisdiction in this case, it is derived from section
108 of the Canada Labour Code. Applicant argues that it must
be demonstrated that the employees in question perform func
tions intimately connected with a federal work and that the
operation carried on in its Winnipeg office is severable from its
other operations so that the Canada Labour Code would not
apply to the employees in its Winnipeg office.
Held, the application is dismissed. The declaratory section in
the Canadian Wheat Board Act extends the declaration in the
Canada Grain Act so that "all flour mills, feed mills, feed
warehouses and seed cleaning mills ..." are declared to be
"works or a work for the general advantage of Canada ... .
This applicant is in a business to which the federal power
attaches by virtue of the declaration: the business of producing
and selling animal seeds, and the feed-mill proportion of the
total operation is more than an insignificant or incidental part
of the applicant's manufacturing operation. The Winnipeg
office plays a vitally important part in the price payable to the
farmer member for his product and in determining and decid
ing what the price will finally be by virtue of its marketing
function as well as its "hedging and commodity trading"
function. The work performed by this office is a necessary part
of the whole, the whole being, inter alla, feed mills which have
been declared to be federal works.
APPLICATION for judicial review.
COUNSEL:
W. J. Vancise and D. E. W. McIntyre for
applicant.
George Taylor, Q.C. and R. Alan Francis for
respondent Canada Labour Relations Board.
SOLICITORS:
Balfour, Moss, Milliken, Laschuk, Kyle,
Vancise & Cameron, Regina, for applicant.
Goldenberg, Taylor, Randall, Buckwold &
Halstead, Saskatoon, for respondent Canada
Labour Relations Board.
The following are the reasons for judgment
rendered in English by
PRATTE J.: I agree with the conclusion reached
by my brother Heald that the section 28 applica
tion must be dismissed.
I do not wish to add anything to what he says in
respect of the applicant's contention that it was
denied natural justice.
As to the contention that the Canada Labour
Relations Board had no jurisdiction, it must be
rejected because, in my view, the record does not
show that the employees comprised in the bargain
ing unit are not "employed in connection with the
operation" of a "feed mill" within the meaning of
section 45 of the Canadian Wheat Board Act,
R.S.C. 1970, c. C-12.
* * *
The following are the reasons for judgment
rendered in English by
HEALD J.: This is a section 28 application to
review and set aside an order of the Canada
Labour Relations Board dated April 12, 1978
certifying the Grain Services Union (CLC) as the
bargaining agent for a unit comprising:
all employees of CSP Foods Ltd., working in the office of the
general manager sales and commodity trading, excluding sales
manager N.E.O. Ltd., location controller, manager feed ingred.
sales, manager hedging and trading, manager traffic and distri
bution, and those above.
The principal ground of attack on the Board's
order is that the Board was without jurisdiction to
make that order. The Board's jurisdiction, if it has
jurisdiction in this case, is derived from section
108 of the Canada Labour Code, S.C. 1972, c. 18,
which provides as follows:
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.
It is the applicant's submission that for the
Board to have jurisdiction, it must be demonstrat
ed that the employees in question perform func
tions which are intimately connected with a feder
al work, undertaking or business and whose work
is an integral part of, or necessarily incidental to,
the effective operation of the federal work, under
taking or business. The applicant further submits
that, while the applicant, at various locations other
than its Winnipeg office, carries on operations,
some of which fall under the legislative umbrella
of the federal government, nevertheless, so far as
the duties performed by its employees in the Win-
nipeg office are concerned, those duties and that
employment do not fall within federal jurisdiction.
The reason given by the applicant for this view is
because, in its opinion, the nature of the operation
carried on in the Winnipeg office is that of a
service function related to the other functions of
the applicant, but not a function which is intimate
ly connected with, or an integral part of the opera
tions of the applicant. It is the submission of the
applicant that the operation carried on by it in its
Winnipeg office is clearly severable from its other
operations and, accordingly, the provisions of Part
V of the Canada Labour Code do not apply to the
employees in its Winnipeg office.
It is necessary, in my view, for a proper determi
nation of the jurisdictional question, to consider
the manner in which the applicant company func
tions. A brochure which describes the applicant's
operations is contained in the Case (pp. 47 to 64).
Additionally, on the oral argument of this applica
tion before us, the Court added to the Case para
graphs 1 to 21 inclusive of the affidavit dated July
28, 1978 of Reginald S. Wayman, General
Manager, Sales and Commodity Trading, of the
Winnipeg office of the applicant company. From
this material, the following picture of the appli
cant's operations emerges:
The applicant company is the food processing
and marketing arm of the Manitoba and Saskatch-
ewan Wheat Pools. It provides the Pools' farmer
membership with a ready market for their field
crops, as processed or semi-processed products,
mostly in the form of crude vegetable oils. The
applicant sells its processed products in national
and international markets, through marketing
offices at Saskatoon, Winnipeg and Toronto and
through an Export Marketing Group headquar-
tered at Saskatoon. The applicant has a vegetable
oil plant in Saskatoon which carries on the busi
ness of a rapeseed crushing plant to produce crude
rapeseed oil and meal for both domestic and
export markets. Associated with the vegetable oil
plant in Saskatoon is an elevator. The applicant
also operates a vegetable oil processing plant at
Nipawin, Saskatchewan, which is engaged in the
crushing, refining and packaging of rapeseed oil
and products thereof, destined for both export and
domestic markets. It also operates an oil seed
processing plant at Altona, Manitoba, which pro
duces crude and refined rapeseed oil together with
soybean and sunflower oil and products derived
therefrom which are destined primarily for domes
tic markets. The applicant also operates a com
modity trading and marketing office in Winnipeg
which office is the subject of the certification order
under review. The Winnipeg office is responsible
for the hedging and commodity trading relating to
the sales of vegetable oils and meals—i.e., rape-
seed, soybean and sunflower. Oilseeds are bought
at competitive prices, at a flow rate that preserves
the best price structure for the applicant's custom
ers. The delicate balance between a fair producer
price and a competitive consumer price is main
tained with the use of sophisticated hedging princi-
pies, and this function, as stated supra, is per
formed by the Winnipeg office. The vegetable oil
seed purchases are carried out by the individual
vegetable oil plants at Saskatoon, Nipawin and
Altona on a cash basis. However, as against such
cash purchases of seed and subsequent sales of
products, the Winnipeg office, in its hedging oper
ations, is engaged, through brokers, in trading in
soybean and soybean oil and meal futures on the
Chicago Board of Trade and rapeseed futures in
the Winnipeg Commodity Exchange.
The respondent Board submits that it has juris
diction over subject bargaining unit based on a
number of statutory provisions as applied to the
facts of this case. Initially, the Board cites section
108 of the Canada Labour Code quoted supra. It
then refers to section 2(h) and (i) of the Canada
Labour Code which reads as follows:
2. In this Act
"federal work, undertaking or business" means any work,
undertaking or business that is within the legislative author
ity of the Parliament of Canada, including without restrict
ing the generality of the foregoing:
(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;
It then refers to section 43 (1) of the Canada
Grain Act, S.C. 1970-71-72, c. 7 which reads as
follows:
43. (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.
Subsections (2) and (3) deal with elevators in the
eastern division and, accordingly, have no rele
vance or application to the case at bar. Reference
is also made to the companion declaratory section
in the Canadian Wheat Board Act, R.S.C. 1970, c.
C-12, being section 45 thereof, which reads as
follows:
45. For greater certainty, but not so as to restrict the
generality of any declaration in the Canada Grain Act that any
elevator 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
hereafter 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,
each and every mill or warehouse mentioned or described in the
schedule is a work for the general advantage of Canada.
The Board then turns to the definition of "eleva-
tor" as contained in section 2(10)(a) of the
Canada Grain Act which reads as follows:
2....
(10) "elevator" means
(a) any premises in the Western Division
(i) into which grain may be received or out of which grain
may be discharged directly from or to railway cars or
ships,
(ii) constructed for the purpose of handling and storing
grain received directly from producers, otherwise than as a
part of the farming operation of a particular producer, and
into which grain may be received, at which grain may be
weighed, elevated and stored and out of which grain may
be discharged, or
(iii) constructed for the purpose of handling and storing
grain as part of the operation of a flour mill, feed mill,
seed cleaning plant, malt house, distillery, grain oil extrac
tion plant or other grain processing plant, and into which
grain may be received, at which grain may be weighed,
elevated and stored and out of which grain may be dis
charged for processing or otherwise,
and the definition of "process elevator" as con
tained in section 2(38) of the Canada Grain Act
and reading as follows:
2....
(38) "process elevator" means an elevator the principal use
of which is the receiving and storing of grain for direct
manufacture or processing into other products;
The Board then submits that the vegetable oil
plants owned and operated by the applicant at
Saskatoon, Nipawin and Altona are "elevators" as
defined in section 2(10)(a)(ii) and (iii) of the
Canada Grain Act or "process elevators" as
defined in section 2(38) of that Act and as eleva
tors they have been declared pursuant to section
43(1) of that Act "a work or works for the general
advantage of Canada". Accordingly, in the sub
mission of the Board, when the functions of the
Winnipeg office are analyzed, it is apparent that
there is the necessary integral and intimate rela
tionship between that office and the elevators in
question so as to constitute the functioning of the
Winnipeg office a "work ... for the general advan
tage of Canada" so as to clothe the Board with
jurisdiction.
In my opinion, it is unnecessary to decide wheth
er the three oil processing plants of the applicant
are "elevators" or "process elevators" as defined in
the Canada Grain Act in order to determine the
jurisdictional question under review. A perusal of
the declaratory section in the Canadian Wheat
Board Act (section 45 thereof and quoted supra),
discloses that it extends the declaration as con
tained in the Canada Grain Act so that "all flour
mills, feed mills, feed warehouses and seed clean
ing mills ..." [underlining is mine] are declared to
be "works or a work for the general advantage of
Canada ...".
In my view, the record in this case clearly
discloses that, inter alia, this applicant was in the
business of producing and selling animal feeds. For
example—on page 48 of the Case, it is said that
"CSP also provides a complete range of meal and
mill-feed by-products in bagged, pelleted and bulk
forms." On the same page, the following statement
appears: "Most oilseed products go to further
processors; ...; animal feed manufacturers; ...".
And again at page 57 "... The main quality
control laboratory at Saskatoon also supervises
quality control programs and does analysis on a
commercial basis for a number of Canadian and
American food processors and feed manufacturers
...". [Underlining is mine.] And again, on pages
58, 59 and 60, when describing the production
facilities at Altona, Nipawin and Winnipeg, refer
ences are made to the products of those mills as
including: "bagged or bulk meal;" and "bulk or
pelleted meal;". These references to the "feed
mill" component of the applicant's operations sug
gest that it is a rather substantial portion of the
entire operation since reference is made to the
provision of a "complete range" of meal and mill-
feed by-products. While the record does not quan
tify in any way, the feed-mill proportion of the
total operation, nor would this be necessary, in my
view, I am satisfied, nevertheless, from the record,
that the feed-mill component is certainly more
than an insignificant or incidental part of appli
cant's manufacturing operation.
Accordingly, even if the federal power does not
attach to the three plants of the applicant by virtue
of the declaratory section and the definition sec
tions of the Canada Grain Act, it seems clear to
me that it does attach by virtue of the provisions of
the Canadian Wheat Board Act referred to supra.
While neither of the Acts in question contains a
definition of "feed mill", giving to that phrase its
plain, ordinary and well-accepted meaning, the
operations of the applicant described supra were,
in my view, those of a "feed mill", whatever else
they may have been.
However, this conclusion does not, per se, deter
mine the jurisdictional issue because the applicant
submits that the operations carried on in the Win-
nipeg office are that of a service function and are
not a function which is intimately connected with,
or an integral part of applicant's operations and as
such, are clearly severable from its other
operations'.
With respect, I cannot accept this submission
since, in my view, it is not established by the
evidence. In the brochure describing applicant's
operations (Case, p. 51), it is stated: "The delicate
balance between a fair producer price and a com
petitive consumer price is maintained with the use
of sophisticated hedging principles". And then, in
paragraphs 14 and 15 of the Wayman affidavit:
The jurisprudence seems to clearly establish the test to be
applied—i.e., Is the operation in question "an integral part or
necessarily incidental" to the effective operation of the federal
work?
See: Reference re Industrial Relations [1955] S.C.R. 529 at
567-568 per Estey J.
The Letter Carriers' Union of Canada v. M & B Enter
prises Ltd. [1975] 1 S.C.R. 178 at 187-188 also establishes
that it is not essential for the employees in question to be
exclusively employed upon or in connection with a federal
work.
14. THAT the purchase of vegetable oil seed is carried out by
the individual vegetable oil plants situate in Saskatoon, Nipa-
win and Altona, on a cash basis.
15. THAT as against such cash purchases of seed and subse
quent sales of products the Winnipeg office, in its hedging
operation, is engaged, through brokers, in trading in soybean
and soybean oil and meal futures on the Chicago Board of
Trade and rapeseed futures in the Winnipeg Commodity
Exchange.
The applicant is the processing and marketing
arm of the Manitoba and Saskatchewan Wheat
Pools which organizations have some 100,000
farmer members. The stated raison d'être of the
applicant is to provide these farmer members with
a ready market and a fair price for their field
crops. It is clear from the evidence quoted supra,
that the Winnipeg office plays a vitally important
part in the price payable to the farmer member for
his product and in determining and deciding what
that price will finally be by virtue of its marketing
function as well as its "hedging and commodity
trading" function. To hold that a branch of a
company which operates the marketing and pric
ing function in that company is not an "integral"
part of the effective operation of a work which
commences at the feed mill or oil processing plant
and terminates as a feed product or a vegetable oil
product for sale both domestically and offshore
would, in my view, be wrong. The fixing of the
price at which the raw product is purchased, and
the manufactured product is sold and the market
ing of the manufactured product are just as essen
tial components of the entire operation as the work
of the mill employee who weighs the farmer's
rapeseed or who operates the crushing mill. The
Living Webster Dictionary defines "integral", inter
alia, as: "belonging to or forming a necessary part
of a whole". In my view, the work performed by
applicant's Winnipeg office was a necessary part
of the whole, the whole being the operation of,
inter alia, feed mills which have been declared to
be federal works.
Accordingly, and for the foregoing reasons, I
have concluded that the respondent Board had
jurisdiction in this case.
The only other ground of attack advanced by
applicant's counsel at the hearing before us was
that the respondent Board had failed to observe
the principles of natural justice in issuing the said
order, without having held a hearing and giving
the applicant the opportunity to present evidence
and make argument as had been requested by the
applicant. At the conclusion of his submissions on
this issue, counsel for the applicant was advised by
the Court that he had not convinced us that there
was any substance in this ground of attack.
Accordingly, respondents' counsel were not called
on to deal with this issue. It was the Court's
opinion that, applying the principles set out in
Durham Transport Inc. v. International Brother
hood of Teamsters (1978) 21 N.R. 20 and Re
Greyhound Lines of Canada Ltd. and Office and
Professional Employees International Union,
Local 458 (1979) 24 N.R. 382 to the facts of the
present case, the applicant has failed to establish
that the Board did not conduct itself in accordance
with the principles of natural justice and the audi
alteram partem rule.
For all of the reasons set out herein, I would
dismiss the section 28 application.
* * *
The following are the reasons for judgment
rendered in English by
LE DAIN J.: I agree that the section 28 applica
tion must be dismissed. If the works for the gener
al advantage of Canada in this case be process
elevators operated in connection with the vegetable
oil plants then I would seriously doubt that the
commodity trading and marketing activity of the
applicant's Winnipeg office is sufficiently closely
related to the operation of the elevators to be an
integral part of them or necessarily incidental
thereto. But if the works be the plants themselves
in their character as feed mills, then there can in
my opinion be no doubt, for the reasons given by
my brother Heald, that the functions performed by
the Winnipeg office are at least necessarily inci
dental to the operation of the mills. There is, as my
brother Heald has demonstrated, evidence from
which one may conclude that the vegetable oil
plants operated at Altona, Nipawin and Saskatoon
are also feed mills within the meaning of section
45 of the Canadian Wheat Board Act. I hesitate,
however, to make this finding in the absence of
further evidence showing the relative importance
of the feed producing operations of these plants. It
is sufficient for purposes of the present case, I
think, that on a record which raises the distinct
possibility that the vegetable oil plants are also
feed mills, the applicant, who had the burden of
proving the alleged absence of jurisdiction, has
failed to establish that they are not feed mills.
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.