Reasons for decision
La Coopérative de transport maritime et aérien,
applicant,
and
United Steelworkers, Local 9538,
bargaining agent,
and
Seafarers’ International Union of Canada;
Attorney General for Quebec,
intervenors.
Board Files: 30445-C and 30450-C
Neutral Citation: 2014 CIRB 731
June 27, 2014
The Canada Industrial Relations Board (the Board) was composed of Ms. Louise Fecteau, Vice-Chairperson, and Messrs. Richard Brabander and Gaétan Ménard, Members. A hearing was held in Québec, Quebec, on June 5, 2014.
Appearances
Mr. Guy Dussault, for La Coopérative de transport maritime et aérien;
Mr. Thierry Saliba, for the United Steelworkers, Local 9538;
Mr. Gary H. Waxman, for the Seafarers’ International Union of Canada;
Ms. Véronique Massé, for the Attorney General for Quebec.
These reasons for decision were written by Ms. Louise Fecteau, Vice-Chairperson.
[1] The Board held two case management conferences, on May 16 and 23, 2014. A hearing on the merits was held in Québec, Quebec, on June 5, 2014. The employer called two witnesses, Mr. François Grégoire and Mr. Emmanuel Aucoin. The union called one witness, Mr. Bruno Gagnon.
I. Nature of the Application
[2] On May 8, 2014, La Coopérative de transport maritime et aérien (CTMA or the employer) filed an application with the Board pursuant to section 44(3) of the Canada Labour Code (Part I–Industrial Relations) (the Code) (file no. 30450-C). The employer also filed an application for an interim order pursuant to section 19.1 of the Code (file no. 30445-C). The Board did not rule on the application for an interim order, choosing instead to promptly proceed on the merits of the case given that the employer’s application raised an issue of constitutional jurisdiction that could not be determined on an interim basis.
[3] CTMA, a marine shipping and transportation business, is asking, among other things, that the Board recognize that a change of activity occurred effective February 1, 2009, that caused the parties to fall under the jurisdiction of the Code. It is asking the Board to recognize that the bargaining certificate held by the United Steelworkers, Local 9538, under the Quebec Labour Code along with the collective agreement between the parties now fall under the Code and that any proceeding initiated under Part I of the Code must be continued.
[4] The union for its part alleges that the employer has not demonstrated a change of activity that warrants the application of section 44(3) of the Code, since it always operated an extra-provincial shipping and transportation route, that is, the route between Souris, Prince Edward Island, and Cap‑aux-Meules, Îles-de-la-Madeleine, in the past for at least 10 months of the year. The union submits that the employer unilaterally terminated the conciliation process initiated under Quebec law, suddenly claiming that it came under federal jurisdiction after 33 years of provincially regulated industrial relations.
[5] On May 16, 2014, the Board held a teleconference with the parties, in which Mr. Guy Dussault, counsel for the employer, and Mr. Thierry Saliba, counsel for the United Steelworkers, Local 9538 (United Steelworkers), participated. During that teleconference, the Board advised the parties that it could not hear their arguments on the application for an interim order filed pursuant to section 19.1 of the Code because it first had to determine whether the employer’s activities came under its jurisdiction. However, the Board suggested that it hear the parties’ arguments on the merits of the case without delay and summoned the parties to a hearing on May 27, 2014.
[6] On May 22, 2014, Ms. Véronique Massé, counsel with the legal branch of the Quebec Department of Justice (acting on behalf of the Attorney General for Quebec), sent the Board a letter to ask it to postpone the hearing scheduled for May 27, 2014. According to Ms. Massé, a notice of constitutional question pursuant to section 57 of the Federal Courts Act was required since the employer’s application to the Board dealt with the applicability of an act of the provincial legislature, that is, the Quebec Labour Code. The Board held a second conference call to deal with the matter on May 23, 2014, and postponed the hearing on the merits of the case until June 5, 2014.
[7] On May 26, 2014, the employer served a notice of constitutional question pursuant to section 57(1) of the Federal Courts Act, R.S.C. 1985, c F-7, on the attorney general of each province and on the Attorney General of Canada. The notice stated the following:
The Employer intends to challenge the constitutional applicability of the Quebec Labour Code, CQLR c C-27.
The question will be argued on June 5, 2014, at 9 a.m., in the city of Québec, at a location that remains to be determined.
The following are the material facts giving rise to the constitutional question:
1. CTMA operates, among other things, a marine shipping and passenger transportation business the primary purpose of which is to ensure the transportation of people and goods for the population of the Îles-de-la-Madeleine, Quebec;
2. CTMA mainly operates three (3) vessels;
3. In particular, CTMA provides a link between Cap-aux-Meules, Îles-de-la-Madeleine, and Souris, Prince Edward Island, twelve (12) months a year;
4. This ferry service is vital and essential for the population of the Îles-de-la-Madeleine. It is the main transportation—particularly passenger transportation—link;
5. Among other things, CTMA operates a warehouse in Moncton, New Brunswick, and a garage and terminal in Souris, Prince Edward Island;
6. The seafarers employed by CTMA for the three vessels in question are represented by the Seafarers’ International Union of Canada, which has been duly certified by the Canada Labour Relations Board;
7. However, the officers employed by CTMA aboard the three (3) vessels have since 2011 been represented by the United Steelworkers, Local 9538, certified by Quebec’s Commission des relations du travail;
8. CTMA commenced collective bargaining with the United Steelworkers, Local 9538, to renew the collective agreement for the officers employed aboard the three (3) vessels it operates;
9. It is imperative that the parties comply with the provisions of Part I of the Canada Labour Code, RSC 1985, c L‑2, and that those provisions serve as the framework for the current bargaining.
Copies of the application filed by the employer pursuant to section 44(3) of the Canada Labour Code and the application for an interim order filed pursuant to section 19.1 of the Code are appended to this notice.
The following is the legal basis for the constitutional question:
1. CTMA clearly operates an extra-provincial marine shipping and passenger transportation business that falls under exclusive federal jurisdiction in the area of labour relations;
2. The Quebec Labour Code obviously is constitutionally inapplicable to the business operated by CTMA given that the three (3) vessels are clearly required for the operation of the ferry service between the province of Prince Edward Island and the province of Quebec (Îles-de-la-Madeleine).
(translation)
[8] Only the Attorney General for Quebec indicated its intention to intervene in the matter; it was moreover represented at the hearing of June 5, 2014, by Ms. Véronique Massé.
[9] On May 26, 2014, the Board also sent a letter to the Seafarers’ International Union of Canada (SIUC) to give it the opportunity to file a request to intervene given that the matter at issue might be of interest to that trade union. On May 30, 2014, Mr. Gary H. Waxman appeared on behalf of the SIUC in connection with the constitutional jurisdiction issue. Of note is that the SIUC has long held federal certification (2141-U) that covers unlicensed seafarers employed by the employer on its vessels.
II. Request for an Interim Decision
[10] On June 20, 2014, counsel for the employer sent a letter to the Board asking it to issue an interim decision on the constitutional jurisdiction issue applicable to the CTMA’s labour relations given that Quebec’s Commission des relations du travail had summoned the parties to public hearings on the issue of essential services, which were to be held in the Îles-de-la-Madeleine on June 26 and 27, 2014. He indicated that the request was being made to save the parties a costly process. Counsel for the union had no objection to the request provided that the Board issued the instant decision prior to July 2, 2014.
[11] On June 20, 2014, in a brief decision (La Coopérative de transport maritime et aérien, 2014 CIRB LD 3238), the Board indicated the following:
In light of the evidence filed on June 5, 2014, and the submissions made by the parties, the Board finds that the employer’s activity falls under federal jurisdiction. The Board will deliver its reasons for decision on this matter and on the issues raised by the application under section 44(3) of the Code before July 2, 2014.
III. Background and Facts
[12] CTMA operates a marine shipping and passenger transportation business, the primary purpose of which is to ensure the transportation of people and goods for the population of the Îles-de-la-Madeleine, Quebec. CTMA mainly operates three vessels, the MV Madeleine, the MS CTMA Vacancier and the MV CTMA Voyageur. CTMA also provides a link between Cap-aux-Meules, Îles-de-la-Madeleine, and Souris, Prince Edward Island. Since February 1, 2009, the MS CTMA Vacancier has been chartered for extra-provincial service between Souris, Prince Edward Island, and Cap-aux-Meules, Îles-de-la-Madeleine, during the months of February and March. Since June 2002, the MV CTMA Voyageur has been chartered for extra-provincial service between the two towns during the summer months.
[13] CTMA is bound by an agreement with Her Majesty the Queen in Right of Canada that was renegotiated and renewed on April 1, 2011, and extended for an additional two years, to March 31, 2016. The employer’s three vessels are used to provide ferry service between Cap-aux-Meules and Souris, as set out in clause 6.1(e) of the amendment-renewal agreement, which reads as follows:
6.1 (e) The recipient shall use the vessel MV Madeleine for the period from April 1 to January 31, and the charter vessel MS CTMA Vacancier for the period from February 1 to March 31, to provide ferry service in accordance with Schedule I, or for any other period that may be agreed to by the parties hereto when the ferry service is being operated, if weather and ice conditions allow. The vessel CTMA Voyageur shall be used for a total of 15 trips during the peak season (June 15 to September 15) to handle the increase in traffic in Souris. Subject to the written consent of Canada, which shall not be unreasonably withheld, the recipient may add or replace the vessel, provided the conditions set out herein are met in full.
(translation)
[14] The seafarers employed by CTMA for the three vessels referred to above are represented by the SIUC, which was certified by the former Board (Canada Labour Relations Board) (2141-U).
[15] The officers employed by CTMA aboard the three vessels, who are the employees concerned in this matter, have been represented by the United Steelworkers since 2011. Prior to that, they were represented by the Marine Officers’ Union. On August 24, 1981, the Marine Officers’ Union was certified by the Bureau du commissaire général du travail pursuant to the Quebec Labour Code (certification no. AQ‑1003-4179). The officers have therefore been covered by a provincial bargaining certificate for 33 years.
[16] Curiously, the Board had previously issued a bargaining certificate, on November 24, 1964, to District 50, United Mine Workers of America, Local 15405 (District 50), also for a unit comprising the officers of CTMA. In a letter dated June 25, 2014, the United Steelworkers (successor to District 50) informed the Board that it considered that the bargaining certificate in question had been dropped.
[17] Quebec’s Commission des relations du travail has since December 2, 2013, required that the parties maintain essential services in the event of a strike, pursuant to the provisions of the Quebec Labour Code. Maintaining essential services is intended to prevent a strike from endangering the health or safety of the public.
[18] CTMA commenced bargaining with the union to renew the collective agreement, which expired on January 31, 2014. A letter sent to the employer by the union on December 10, 2013, states the following:
Dear Sir:
Please be advised that the collective agreement between CTMA and Local 9538 of the United Steelworkers will expire this coming January 31.
This is accordingly to inform you that we wish to enter into negotiations with you for a new collective agreement. We will enter into contact with you early in the new year to advise you of available times for a meeting.
…
(translation)
[19] On February 18, 2014, the parties took part in a bargaining session by conference call. One of the main issues on the table was the employer’s intention to eliminate the defined benefit pension fund.
[20] On February 24, 2014, Mr. Louis-Philippe Audet, representative of the employer, asked the Quebec Department of Labour to appoint a conciliation officer pursuant to section 54 of the Quebec Labour Code. Conciliation sessions were held on March 28 and April 15, 2014. Other sessions were scheduled for the month of May.
[21] On May 6, 2014, CTMA informed the union that the provincial conciliation officer lacked jurisdiction to continue the conciliation process as it considered that the employer’s activities were federally regulated. CTMA asked the union to rectify the situation and give new notice to bargain in compliance with section 49 of Code.
[22] On May 14, 2014, the union gave the employer a first strike notice announcing possible strike action starting June 2.
[23] On June 4, 2014, the union gave the employer a second strike notice announcing possible strike action starting July 2, 2014. On the date of the hearing into this matter, Quebec’s Commission des relations du travail was seized with the issue of the maintenance of essential services. On June 20, 2014, the Commission summoned the parties to a hearing on the matter, to be held on June 26. However, after receiving the Board’s interim decision on the issue of constitutional jurisdiction, the Commission cancelled the hearing and closed the case before it.
[24] CTMA submits that the conciliation process initiated in Quebec cannot be recognized by the Board under section 44(3)(c) and, consequently, the parties are required to give new notice of dispute. CTMA also submits that the union is required to give new notice to bargain.
IV. Evidence
[25] Although the Attorney General for Quebec and the SIUC requested intervenor status, their counsel indicated at the hearing that they had no evidence to present.
A. The Employer
[26] The employer called Mr. François Grégoire as its first witness. Mr. Grégoire has represented CTMA in labour relations matters, including collective bargaining, since 1976. In fact, he has been the employer’s spokesperson at the bargaining table since 1976. Mr. Grégoire indicated that labour relations have been good since 1981, except for in 1993, when management and labour were in the early stages of a labour dispute and the employer considered the possibility of challenging the Commission’s jurisdiction. However, the matter was resolved without any determination as to whether or not the employer was federally regulated.
[27] He explained that the parties had started the bargaining process in early 2014 and that the employer had had four items on the table: the pension plan, insurance and pension contributions, work scheduling, and vacation during the peak season.
[28] Mr. Grégoire explained that the first discussions with the union had been brief and that the employer had quickly resorted to the conciliation process given the union’s strike threats at that early stage. In fact, the employer had sent the Quebec Department of Labour a request for conciliation on February 18, 2014. On March 3, 2014, a conciliation officer, Mr. Jean Poirier, had been appointed. Mr. Grégoire stated that the union had subsequently given strike notice, on May 14, 2014, announcing possible strike action on June 2, 2014.
[29] On cross-examination, Mr. Grégoire admitted that he had never raised the constitutional or jurisdictional issue in respect of the undertaking prior to consulting with Mr. Dussault. It had been during that consultation that Mr. Dussault had raised the constitutional aspect of the case, that is, that CTMA’s activities actually fell under federal jurisdiction. Mr. Grégoire stated that the decision to file an application with the Board pursuant to section 44(3) had been made in mid-April 2014, before the union had given its first strike notice. Mr. Grégoire stated that he had used the legal means at his disposal.
[30] The second witness was Mr. Emmanuel Aucoin, CEO of CTMA and formerly director of marine operations for the employer. He described the undertaking’s ferry service between Cap-aux-Meules, Îles-de-la-Madeleine, and Souris, Prince Edward Island. According to Mr. Aucoin, the ferry service is central to Prince Edward Island’s economic activity. He estimates that 100,000 people use the ferry services each year, including 70,000 during the period between June 15 and September 15. The ferry service is also used for freight trucking year-round. He estimates that 3,500 trucks use the service. The trucks carry perishable goods and sea products such as live lobster, as well as hazardous materials. Schedules and periods of use of the three vessels vary over the course of the year.
[31] The three vessels have been in use since 2009 following a pilot project agreed to with the Government of Canada. The pilot project led to a permanent arrangement in 2011 in accordance with the above-mentioned agreement. Prior to 2009, there had been a ferry service between Cap‑aux-Meules and Souris since 1971, but it had run on a less frequent and more irregular basis, and had not involved the three vessels. The MV CTMA Voyageur was put into service in 2002, while the MV Madeleine started operating in 1997. Whereas CTMA provided the ferry service on its own prior to 1971, the service was taken over by the state in 1971.
[32] On cross-examination, the witness described the other services provided by the employer, including road freight transport services in the Maritimes and the United States. He also described the operations of each of the vessels and spoke about the times of year when services are provided between the Îles-de-la-Madeleine and Prince Edward Island.
B. The Union
[33] The union called Mr. Bruno Gagnon to testify. Mr. Gagnon is the president of Local 9538. A shop steward and union representative from 2005 to 2010, he became president in 2010. Local 9538 represents 600 members, including 300 officers, in the employ of five different employers.
[34] Mr. Gagnon explained how the first discussions with the employer proceeded after the union had sent the notice to commence bargaining on December 10, 2013. Mr. Gagnon indicated that the employer had wanted to start by discussing concerns it had orally, without making any offers in writing. It had informed the union of the topics it wished to discuss first in the upcoming bargaining during a conference call meeting. The union for its part had wanted to start by dealing with the non-monetary issues, but the employer had refused. The conference call had ended rather abruptly, according to the witness, and no other meeting had been held after that.
[35] Mr. Gagnon explained that once the conciliation officer had been appointed, at the employer’s request, a first meeting had been held on March 28, 2014. At that meeting, the union had wanted to start by dealing with the non-monetary issues before laying out its monetary proposals. A second meeting was held on April 15, 2014, at which the union presented its monetary proposals. A meeting scheduled for April 16 was cancelled, as were meetings scheduled for May 13, 14 and 15, 2014. Mr. Gagnon indicated that at no time during the meetings had the employer advised him of the constitutional jurisdiction issue and that it was not until May 6, 2014, that he had received a letter from counsel for the employer that stated the following:
Our client is not governed by that Code. CTMA in fact operates a business that falls under exclusive federal jurisdiction in the area of labour relations. Indeed, the collective bargaining that CTMA recently successfully concluded with the Seafarers’ International Union of Canada was, quite properly, conducted pursuant to the relevant federal legislation.
Since the provincial conciliation officer involved in the matter, Mr. Jean Poirier, has no legal jurisdiction and since our client is committed to pursuing successful collective bargaining with your union, it is imperative that you rectify the situation.
United Steelworkers, Local 9538, has the status of bargaining agent pursuant to Part I of the Canada Labour Code, but we note that, under the circumstances, you have failed to give the necessary notice to commence bargaining pursuant to section 49 of the Code.
(translation)
[36] Mr. Gagnon indicated that the parties are subject to the procedure relating to essential services set out in the Quebec Labour Code. He added that he had sent a second strike notice on June 4, 2014, announcing possible strike action starting on July 2, 2014. The unit concerned by the instant matter comprises 20 members.
[37] During cross-examination, counsel for the employer attempted to get the witness to admit that the notice to bargain sent on December 10, 2013, did not comply with the provisions of the Labour Code; the witness responded that the employer had never advised him that the said notice was not compliant prior to May 6, 2014. As regards the issue of essential services, Mr. Gagnon admitted that a decision had not yet been made.
V. Arguments
A. The Employer
[38] Counsel for the employer indicates that clear evidence was adduced to show that the undertaking has regularly and continuously been carrying out extra-provincial shipping and transportation operations. He further submits that the undertaking’s operations are indivisible. He argues that the employer’s three vessels have been providing ferry service between the Îles-de-la-Madeleine, Quebec, and Souris, Prince Edward Island, since 2009, following a pilot project that led to a permanent arrangement in 2011. He adds that he has also adduced evidence that the undertaking had been providing ferry service between the two provinces since 1971 and even earlier.
[39] With respect to the application of section 44(3)(c) of the Canada Labour Code, counsel for the employer points out some possible ambiguity between the English and French versions of section 44(3)(c). Relying on the English version, he states that the (French) wording “procédures engagées dans le cadre des lois d’une province” (any proceeding ... under the laws of the province) is a reference to action before the courts and submits that a notice to bargain such as that given by the union on December 10, 2013, is not an action before the courts, any more than a conciliation notice is. He parenthetically indicates that the conciliation procedure initiated in Quebec in connection with this matter was never completed as it was interrupted by the filing of the application now before the Board, and states that conciliation is not an action before the courts given that a conciliation officer does not in principle make any decision but rather facilitates a settlement by the parties.
[40] Counsel for the employer also stresses that the rules governing the right to strike in Quebec are very different from those under the Canada Labour Code. Counsel filed a table showing the differences.
[41] Counsel adds that the union adopted an aggressive attitude in the bargaining process, including using the threat of a strike in the middle of the summer, during the peak tourist season. He submits that, in the face of the union’s unyielding stance, his clients had had no choice but to file the application now before the Board. He adds that the employer demonstrated that a change of activity had occurred in 2009 and had led to a permanent arrangement through an agreement with Her Majesty the Queen in Right of Canada in 2011. He accordingly asks the Board to allow the application and order the parties to henceforth comply with the provisions of the Canada Labour Code governing the right to strike, including the obligation for the union to give new notice to bargain under the Code since, in his view, the notice to bargain that the union gave on December 10, 2013, is not compliant with the procedure set out in the Quebec Labour Code.
B. The Union
[42] Counsel for the union begins by drawing the Board’s attention to the fact that the officers have been covered by a bargaining certificate issued by Quebec for 33 years now without the employer ever claiming that it falls under federal jurisdiction. He adds that the intent of section 44(3) of the Code on a change of activity is certainly not that of the employer in this case, which is merely to disrupt the balance of power between the parties. He stresses that this is the only reason the employer filed the application. He adds that the employer is misusing this proceeding while recognizing that there is no acquisitive prescription in constitutional matters.
[43] Counsel submits that the notice to bargain given by the union on December 10, 2013, is valid and follows the rules under the Quebec Labour Code, adding that strike notice was also given. Additionally, he argues that it was at the employer’s behest that the conciliation process was initiated before the conciliation officer appointed by the Quebec Department of Labour, and that the employer’s sole intent in filing the application before the Board was to stall the exercise of the right to strike, to disrupt the balance of power. He also points out to the Board that the employer was the one responsible for the failure of the conciliation process.
[44] With regard to the application of section 44(3)(c), respecting the wording “procédures engagées,” counsel submits that the words include proceedings specific to the field of labour relations since what is involved here is labour relations and not proceedings before a federal court or superior court. Thus, he argues, all proceedings already initiated by the parties in Quebec should be recognized, including the notice to bargain given by the union, the request for conciliation and the second strike notice given on June 4, 2014. According to counsel, if the Board were to allow the employer’s application, the only proceeding to be completed or the only issue to be determined would be that of essential services, which had not yet been addressed as of June 5, 2014. In support of his arguments, counsel filed a book of authorities dealing in particular with the division of powers under the Constitution.
C. The SIUC
[45] Counsel for the SIUC intervened to state that the undertaking in question in this matter has been carrying out federal operations since 1971 and that there is no evidence to the contrary, regardless of whether or not any change of activity occurred in 2009 that led to a permanent arrangement in 2011. Counsel submits that the change of activity entered into evidence by the employer merely lends support to a jurisdictional situation that has existed for over 30 years. He accordingly asks the Board to recognize that CTMA carries out activities that fall under federal jurisdiction.
VI. Analysis and Decision
A. The Board’s Jurisdiction
[46] Sections 91 and 92 of The Constitution Act, 1867 (the Constitution), set out the powers of the federal and the provincial governments. Under section 92(10), provincial legislatures may make laws in relation to local works and undertakings, including those listed in sections 92(10)(a), (b), and (c), relating in particular to lines of ships extending beyond the limits of a province. Under section 92(10), transportation undertakings situated within a single province fall under provincial jurisdiction, while undertakings extending beyond the limits of a province or connecting provinces with other provinces or other countries fall under federal jurisdiction.
[47] Section 2 of the Code defines “federal work, undertaking or business” as follows:
2. “federal work, undertaking or business” means any work, undertaking or business that is within the legislative authority of Parliament, including, without restricting the generality of the foregoing,
…
(c) a line of ships connecting a province with any other province, or extending beyond the limits of a province...
[48] In Autocar Royal (9011-4216 Québec Inc.), 1999 CIRB 42, the Board found that the employer’s interurban transportation operations were federally regulated since its extra-provincial operations met the test for regularity and continuity. The Board stated the following in this regard:
[52] With respect to the issue of jurisdiction, the Board in numerous cases has developed a test to determine whether a transportation operation connects provinces or extends beyond provincial boundaries, within the meaning of section 92(10)(a) of the Constitution Act, 1867, and section 2(b) of the Code, which defines a “federal work, undertaking or business.” The test requires a determination that the extra-provincial aspect of the business is regular and continuous as opposed to situations where such activities are carried out on a casual or exceptional basis.
[53] It should be noted, however, that the concept of “regularity and continuity” does not mean that the extra-provincial transportation is subject to or must be carried out in accordance with a predetermined schedule. It is sufficient to find that the business operator is ready and willing to provide extra-provincial transport, if and when customers request such service. It should also be noted that the test does not involve a quantitative approach; therefore, even when the extra-provincial aspect of a business is only a small percentage of the overall operations, the operations may nevertheless come within federal jurisdiction if this small percentage meets the “regular and continuous” test (see Re Ottawa-Carleton Regional Transit Commission and Amalgamated Transit Union, Local 279 et al. (1983), 44 O.R. (2d) 560 (C.A.); Burns Foods (Transport) Ltd. (1990), 81 di 114 (CLRB no. 809); and The Gray Line of Victoria Ltd. (1989), 77 di 169; and 5 CLRBR (2d) 226 (CLRB no. 741)).
[49] In the instant matter, the evidence shows that CTMA has been regularly and continuously carrying out marine shipping and passenger transportation operations, providing a link between Cap-aux-Meules and Souris since at least 2009. This is not disputed by the union, as the union recognizes that the employer always operated the Cap-aux-Meules to Souris route in the past for at least 10 months a year.
[50] The employer operates three vessels to provide a link between Cap-aux-Meules and Souris, towns located in two different provinces (Quebec and Prince Edward Island). The three vessels are used to operate a ferry service between the two provinces, though their use varies depending on the time of the year. In fact, the MV Madeleine is chartered from April 1 to January 31; the MS CTMA Vacancier is chartered for the period from February 1 to March 31; and the MV CTMA Voyageur is chartered for the summer season, from June 15 to September 15. The vessels make regular trips during their respective operating periods. For example, the MS CTMA Vacancier is used in addition to the MV Madeleine during the summer season, making a total of 15 trips to handle the increase in traffic during the peak season.
[51] Consequently, the employer regularly and continuously operates an extra-provincial shipping and transportation undertaking using the three main vessels that it charters for the ferry service between Cap-aux-Meules in the Îles-de-la-Madeleine, Quebec, and Souris, Prince Edward Island.
[52] Moreover, the agreement that was renegotiated and renewed on April 1, 2011, and extended for an additional two years, to March 31, 2016, with Her Majesty the Queen in Right of Canada, confirms that CTMA regularly and continuously provides an extra-provincial ferry service pursuant to section 2(c) of the Code.
[53] In light of the evidence, the Board considers that the activities of CTMA fall under federal jurisdiction for labour relations purposes.
B. Change of Activity
[54] Section 44(3) of the Code reads as follows:
44.(3) Where, as a result of a change of activity, a provincial business becomes subject to this Part, or such a business is sold to an employer who is subject to this Part,
(a) the trade union that, pursuant to the laws of the province, is the bargaining agent for the employees employed in the provincial business continues to be their bargaining agent for the purposes of this Part;
(b) a collective agreement that applied to employees employed in the provincial business at the time of the change or sale continues to apply to them and is binding on the employer or on the person to whom the business is sold;
(c) any proceeding that at the time of the change or sale was before the labour relations board or other person or authority that, under the laws of the province, is competent to decide the matter, continues as a proceeding under this Part, with such modifications as the circumstances require and, where applicable, with the person to whom the provincial business is sold as a party; and;
(d) any grievance that at the time of the change or sale was before an arbitrator or arbitration board continues to be processed under this Part, with such modifications as the circumstances require and, where applicable, with the person to whom the provincial business is sold as a party.
[55] In the instant matter, the union has pointed out that, for 33 years, the employer never raised the matter of it being subject to federal jurisdiction and has accused the employer with misusing the proceedings for the sole purpose of disrupting the balance of power between the parties. It has also submitted that the employer did not demonstrate a change of activity warranting the application of section 44(3) of the Code, since it always operated the Cap-aux-Meules to Souris route in the past for at least 10 months of the year.
[56] In General Electric Canada, carrying on business as GE Nuclear Products, 2008 CIRB 401, the Board found that GE Nuclear’s operations in Toronto, Peterborough and Arnprior all fell under federal jurisdiction even though the parties had for more than 50 years operated on the basis that GE Nuclear was provincially regulated. The question of whether GE Nuclear’s operations fell under federal jurisdiction had never been raised. The Board stated the following:
[83] There is no time bar imposed in section 44(3) for the Board to make a finding in regard to a change of activity or a sale of a provincial business. As in the present matter, the issue of jurisdiction had not previously been questioned in Ontario Hydro v. Ontario (Labour Relations Board), supra, and Ontario Hydro had operated under provincial jurisdiction for years. The SCC found that just because labour relations had been successfully regulated under provincial law up until the challenge did not mean that the authority to regulate should be left with the provincial jurisdiction and that failure to previously intervene did not prevent proper exercise of jurisdiction:
There is no doctrine of laches in constitutional division of powers doctrine; one level of government’s failure to exercise jurisdiction, or failure to intervene when another level of government exercises that jurisdiction, cannot be determinative of the constitutional analysis. In this respect, I would adopt the statement of Reed J. in Alberta Government Telephones v. Canadian Radio-television and Telecommunications Commission, [1985] 2 F.C. 472 (T.D.), at p. 488:
“The fact that constitutional jurisdiction remains unexercised for long periods of time or is improperly exercised for a long period of time, however, does not mean that there is thereby created some sort of constitutional squatters rights. Refer: Attorney General of Manitoba v. Forest, [1979] 2 S.C.R. 1032 for a case in which unconstitutional action had remained unchallenged for ninety years.)”
(page 357)
[57] The evidence in this matter shows that CTMA has been carrying out extra-provincial operations for more than 30 years. This no doubt explains the bargaining certificate dating back to 1964 that was issued by the former Board. Also of note is that unlicensed personnel employed by CTMA aboard the three vessels in question here are also covered by a federal bargaining certificate held by the SIUC since October 1972 (order no. 2141‑U).
[58] That said, the employer is asking the Board to recognize that a change of activity occurred effective February 1, 2009, and led to a permanent arrangement in 2011, as a result of an agreement with Her Majesty the Queen in Right of Canada that was renegotiated and renewed to March 31, 2016, for the use of the employer’s three vessels to provide ferry service between Cap-aux-Meules and Souris.
[59] In fact, according to the evidence, it was only in 2009 that CTMA started using its three vessels to provide a regularly scheduled link between Cap-aux-Meules, Îles-de-la-Madeleine, and Souris, Prince Edward Island, 12 months a year. While the employer also carried out extra-provincial operations between Cap-aux-Meules and Souris prior to 2009, its extra-provincial operations have been more frequent and continuous since the pilot project agreed to with the federal government in February 2009 and confirmed in the agreement entered into with Her Majesty the Queen in Right of Canada in 2011. Based on that agreement, the Board recognizes the business’s change of activity within the meaning of section 44(3) of the Code.
[60] The union insists that the employer filed an application under section 44(3) of the Code for an improper purpose, that is, to disrupt the balance of power between the parties. Certainly the purpose of section 44(3) of the Code is not to defeat a right to an imminent strike. But the union recognizes that there is no acquisitive prescription in constitutional matters, and it has not disputed the validity of the 2011 agreement between the employer and Her Majesty the Queen in Right of Canada, which leaves no doubt that the employer regularly and continuously carries out extra-provincial activity between the two provinces 12 months a year.
[61] While the union may criticize the employer for not approaching the Board sooner because labour relations were good and collective agreements were easily renewed, the same criticism can be applied to the union, which also could have filed an application with the Board for a move from one jurisdiction to the other at any time, especially since it knew that the unlicensed personnel on the undertaking’s three vessels were covered by a federal bargaining certificate.
[62] In light of the foregoing, the Board allows the employer’s application and recognizes that a change of activity occurred in 2009 as a result of the pilot project agreed to with the federal government and confirmed in the agreement with Her Majesty the Queen in Right of Canada that on April 1, 2011, was renegotiated and renewed to March 31, 2016.
C. Effects of Section 44(3)(c) of the Code
[63] The employer has raised the issue of possible ambiguity between the English and French versions of section 44(3)(c) to submit that the conciliation process initiated by the parties in Quebec cannot be recognized by the Board and that, consequently, the parties must give new notice of dispute pursuant to the Code. CTMA has also submitted that the union must give new notice to bargain.
[64] The two official versions of section 44(3)(c) of the Code read as follows:
|
44.(3) Where, as a result of a change of activity, a provincial business becomes subject to this Part, or such a business is sold to an employer who is subject to this Part, ... (c) any proceeding that at the time of the change or sale was before the labour relations board or other person or authority that, under the laws of the province, is competent to decide the matter, continues as a proceeding under this Part, with such modifications as the circumstances require and, where applicable, with the person to whom the provincial business is sold as a party; and ... |
44.(3) Si, en raison de changements opérationnels, une entreprise provinciale devient régie par la présente partie ou si elle est vendue à un employeur qui est régi par la présente partie : ... c) les procédures engagées dans le cadre des lois de la province en cause et qui, à la date des changements opérationnels ou de la vente, étaient en instance devant une commission provinciale des relations de travail ou tout autre organisme ou personne compétents deviennent des procédures engagées sous le régime de la présente partie, avec les adaptations nécessaires, l’acquéreur devenant partie aux procédures s’il y a lieu; ... |
(emphasis added)
[65] To our knowledge, the Board has never ruled on the interpretation of section 44(3)(c) of the Code.
[66] In Canada (Information Commissioner) v. Canada (Minister of National Defence), 2011 SCC 25, the Supreme Court of Canada recently reiterated the general approach to be used for determining the intended scope of a provision of a statute:
[27] The proper approach to statutory interpretation has been articulated repeatedly and is now well entrenched. The goal is to determine the intention of Parliament by reading the words of the provision, in context and in their grammatical and ordinary sense, harmoniously with the scheme of the Act and the object of the statute. ...
(emphasis added)
[67] Thus, to determine the intended scope of a provision of a statute, it is necessary to take into account not only the words used in context and in their grammatical and ordinary sense, but also the scheme of the Act and the object of the statute.
[68] On the face of it, the French version of section 44(3)(c) seems to have a broader scope than the English version. Indeed, the English version contains the words “to decide the matter,” which are not explicitly used in the French version. Thus, according to the English version, it would seem that only proceedings before an authority that, under the laws of the province, is competent to decide the matter are recognized under the Code.
[69] Professor Pierre-André Côté proposed the following approach for resolving differences between the two official versions of the same statutory provision:
... Unless otherwise provided, differences between two official versions of the same enactment are reconciled by educing the meaning common to both. Should this prove to be impossible, or if the common meaning seems incompatible with the intention of the legislature as indicated by the ordinary rules of interpretation, the meaning arrived at by the ordinary rules should be retained.
(page 324)
(Pierre-André Côté, The Interpretation of Legislation in Canada, 3rd ed. (Scarborough: Carswell, 2000))
[70] In the matter before it, the Board considers that there is not necessarily any contradiction between the two versions of the Code. There may indeed be some ambiguity in the French version, but based on the foregoing principles of interpretation, the Board is of the opinion that it is possible to educe a meaning common to both versions of section 44(3)(c) of the Code. To that end, it is important to consider the actual purpose of section 44(3) of the Code.
[71] Section 44(3) was added to the Code in 1999 as a result of the recommendations of the Sims Report (Seeking a Balance: Canada Labour Code, Part I, Review (Ottawa: Human Resources Development Canada, 1995)). The Sims Report explains the objectives of the addition of this provision to the Code in 1999 as follows:
The Requirement for Two Federal Employers
The current wording of the Code limits the application of sections 44 to 46 to cases where the vendor and the purchaser (or whatever the relationship) are federal undertakings. We see the need for the purchaser to be a federal undertaking because this is what, following the transaction, makes the Code apply. We are not convinced the vendor undertaking needs to be federal. It is not uncommon for a federally regulated business to buy up or take over a provincially regulated business that is subject to certification or that has a collective agreement or both.
Except for the definition in section 44, the Board could treat the former “provincial” collective agreement as if it had arisen through voluntary recognition. Provided the Board has full ability to make any necessary amendments, we also see no barrier to allowing a provincial certification to carry over (in modified form), to the federal jurisdiction. There are a number of situations where, as a result of sales or changes in operating style, bargaining relationships move from provincial to federal jurisdiction, particularly in interprovincial transportation industries. We have heard a number of accounts of unnecessary labour relations disruption in this process, and, in some cases, the use of deliberate steps to change jurisdictions to avoid bargaining obligations.
RECOMMENDATIONS:
Section 44 should be amended to remove the requirement that the undertaking from which a business was acquired be a federal undertaking.
Section 44 should be amended to allow the carryover, with any necessary modifications, of provincially regulated bargaining rights and collective agreements when an enterprise moves from provincial to federal jurisdiction, whether or not this is as a result of a sale or transfer.
(emphasis added)
[72] The primary objective of section 44(3) is to protect collective bargaining where an undertaking moves from provincial to federal jurisdiction and ensure the continuity of certification and of the collective agreement. Sections 44(3)(a) and 44(3)(b) follow through on the recommendations of the Sims Report.
[73] Two other provisions were also added to the legislation, with respect to the continuity of any proceeding that was before an authority that, under the laws of the province, was competent to decide the matter (section 44(3)(c)) and the continuity of any grievance that was before an arbitrator or arbitration board (section 44(3)(d)).
[74] In regard to section 44(3)(c), it is clear that a proceeding such as that before Quebec’s Commission des relations du travail for the purpose of deciding the issue of essential services under Quebec law is a proceeding that falls within the scope of section 44(3)(c) of the Code. It is a proceeding before a provincial labour relations board at the time of the instant decision.
[75] Consequently, it is within the Board’s authority to entertain the issue of essential services (maintenance of activities) as though the proceeding had been initiated under section 87.4(4) of the Code, on application made by either party. In fact, under section 87.4(4) of the Code, the Board may determine any issue related to the maintenance of activities “to prevent an immediate and serious danger to the safety or health of the public,” in accordance with section 87.4(1) of the Code.
[76] However, the scope of section 44(3)(c) of the Code is not as clear in regard to the continuity of formalities relating to the negotiation of a collective agreement, such as sending a notice to bargain or a notice of dispute. Such formalities are part of the collective bargaining process and their purpose is to enter into a collective agreement rather than have a competent authority arrive at a decision. The Board notes that the legislation does not expressly provide for the continuity of formalities related to the collective bargaining process, such as giving notice to bargain or notice of dispute.
[77] Regardless of the scope of section 44(3)(c), the Board considers that section 46 of the Code is broad enough to allow it to entertain any question raised in regard to the application of section 44 thereof, including the question of whether or not it can recognize steps taken by the parties to enter into a new collective agreement.
[78] Section 46 of the Code was amended and broadened in 1999 to give the Board the authority to determine any question that arises “under section 44” of the Code:
46. The Board shall determine any question that arises under section 44, including a question as to whether or not a business has been sold or there has been a change of activity of a business, or as to the identity of the purchaser of a business.
[79] Additionally, under section 16(p), the Board may decide any question that may arise “in relation to any proceeding before it”:
16. The Board has, in relation to any proceeding before it, power
(p) to decide for all purposes of this Part any question that may arise in the proceeding, including, without restricting the generality of the foregoing, any question as to whether
(i) a person is an employer or an employee,
(ii) a person performs management functions or is employed in a confidential capacity in matters relating to industrial relations,
(iii) a person is a member of a trade union,
(iv) an organization or association is an employers' organization, a trade union or a council of trade unions,
(v) a group of employees is a unit appropriate for collective bargaining,
(vi) a collective agreement has been entered into,
(vii) any person or organization is a party to or bound by a collective agreement, and,
(viii) a collective agreement is in operation.
i. Notice to bargain
[80] The Board considers that the question of the validity of the notice to bargain is directly related to the consequences of the change of activity pursuant to section 44(3). What’s more, the employer itself raised the question of the validity of the notice to bargain in this matter.
[81] Parties may give notice to bargain under the Code only in accordance with sections 18.1(4)(f), 48 and 49 of the Code (see Communications, Energy & Paperworkers’ Union of Canada v. Global Television, 2010 FC 988).
[82] In this matter, the situation involved the renewal of a collective agreement, not a first collective agreement. Additionally, the parties are not in the process of restructuring bargaining units. The notice to bargain must therefore comply with section 49, which sets out the criteria for giving notice to bargain in the context of the renewal of a collective agreement. Section 49 of the Code reads as follows:
49.(1) Either party to a collective agreement may, within the period of four months immediately preceding the date of expiration of the term of the collective agreement, or within the longer period that may be provided for in the collective agreement, by notice, require the other party to the collective agreement to commence collective bargaining for the purpose of renewing or revising the collective agreement or entering into a new collective agreement.
(2) Where a collective agreement provides that any provision of the collective agreement may be revised during the term of the collective agreement, a party entitled to do so by the collective agreement may, by notice, require the other party to commence collective bargaining for the purpose of revising the provision.
[83] In VIA Rail Canada Inc., 2011 CIRB 569 (VIA Rail), the Board considered the issue of the validity of a notice to bargain pursuant to section 49 of the Code. To that end, it looked at section 5 of the Canada Industrial Relations Regulations (the CIRR), which sets out the requirements respecting the form of the notice to bargain.
[84] Section 5 of the CIRR reads as follows:
5.(1) A notice to commence collective bargaining given under the Act shall be given in writing and be dated and signed by or on behalf of the party giving the notice.
(2) The notice referred to in subsection (1) may specify the section of the Act under which the notice is being given and designate a convenient time and place for the collective bargaining to commence.
[85] In VIA Rail, the Board determined that the only requirements to ensure the validity of a notice to bargain are that the notice be given in writing, that it be dated and that it be signed by or on behalf of the party giving the notice. There is no requirement that the notice designate a time and place for collective bargaining:
[52] As set out earlier, the sole mandatory requirements for a valid notice to bargain under section 49(1) are governed by section 5(1) of the CIRR.
[53] Those requirements for a valid notice under section 49(1) are that it be in writing, dated and signed by or on behalf of the party giving the notice.
[54] Section 5(2) of the CIRR indicates that a party may provide other information, such as suggesting a time and a place for collective bargaining, but that information is not obligatory.
[86] Also in VIA Rail, the Board interpreted the requirements under section 49 as follows:
[36] In the Board’s view, the common meaning for section 49(1) specifies when a notice may be given in order to impose the obligation to bargain collectively. The Board notes that the heading immediately preceding sections 48-50 of the Code is “Obligation to Bargain Collectively”.
[37] Section 49(1) establishes formally how to bring this obligation into existence. Section 50 of the Code then imposes certain obligations on the parties, once the section 49(1) notice has been provided.
[38] Section 49(1) is the notice mechanism to ensure the other party knows the obligation to commence collective bargaining has started. Section 50 then imposes both subjective and objective obligations on the parties.
[87] Under section 49 of the Code, the notice must be given in the period of four months preceding the date of expiration of the term of the collective agreement, and it must be given to the other party for the purpose of renewing the collective agreement or entering into a new collective agreement. The notice to bargain ensures that the other party to the collective agreement knows that it has an obligation to bargain collectively.
[88] The notice to bargain dated December 10, 2013, was sent within the time frame provided for under section 49 of the Code, that is, in the period of four months preceding the date of expiration of the term of the collective agreement. It was sent to the CEO of CTMA and clearly indicates the union’s intent to negotiate a new collective agreement. In addition, the notice also meets the basic requirements set out in section 5 of the CIRR as it is in writing, dated and signed by the president of the union local.
[89] In summary, the Board finds that the notice to bargain given by the union on December 10, 2013, meets the requirements of section 49 of the Code. Consequently, the union will not be required to give new notice to bargain in this matter.
ii. Conciliation procedure and validity of notice of dispute
[90] While the Board has broad powers under the Code, including those under section 16(p) and section 46 thereof, those powers do not extend to the conciliation process. The Board considers that recognition of the conciliation process initiated in Quebec falls to the Minister of Labour rather than to it. The Board examined the limitations of its powers with respect to the conciliation process provided for under sections 71 et seq. of the Code in two key decisions.
[91] In Société Radio-Canada, 2001 CIRB 150, the employer was seeking among other things a finding by the Board that the notice of dispute given by the union was premature. The Board had before it an application for an interim order for the union to stay the request for conciliation.
[92] The Board dismissed the application for an interim order, indicating that it was not within its jurisdiction to order the union to stay its request for conciliation. It stated the following in this regard:
[20] In this matter, the Board is not convinced of the existence of irreparable harm that cannot be remedied at the time of a hearing into the merits of a case, nor that it has the jurisdiction to intervene in order to prevent one party from requesting conciliation, given that is the preventive measure set out in the Code to encourage the settlement of collective bargaining. Section 71 prescribes two conditions for requesting that a conciliator be appointed: either collective bargaining has not commenced within the time fixed by the Code, which is not the case here, or “the parties have bargained collectively... but have been unable to reach agreement.”
[21] The issue of having been unable to reach agreement is a purely subjective one, peculiar to the party that perceives that bargaining has reached a deadlock. Inasmuch as the Board can be called on to assess the conduct of parties during their collective bargaining and to decide on the legitimacy of the issues that gave rise to the deadlock, the Board has no role to play in evaluating the facts of the party that feels oppressed and that decides to refer the dispute to the conciliation process established in the Code. The Board believes, therefore, that it is not within its jurisdiction to order the SCRC to stay the request for conciliation made to the Minister.
(emphasis added)
[93] That matter illustrates the Board’s reluctance to interfere in the conciliation process given that it is a process under the jurisdiction of the Minister of Labour rather than that of the Board.
[94] In Securiguard Services Limited, 2006 CIRB 359 (Securiguard), the employer filed an application under section 16(p) of the Code in which it asked the Board to set aside the appointment of a conciliation officer and declare the notice of dispute given by the union void on the basis that the requirements under section 71 had not been met.
[95] The Board determined that it lacked jurisdiction to hear the application for two reasons. First, section 16(p) does not in itself authorize the filing of an application. The purpose of that section is to allow the Board to resolve questions that arise during the course of a proceeding already before it. Second, the Board has no jurisdiction to set aside the appointment of a conciliation officer and declare a notice of dispute void.
[96] In regard to the second issue, in Securiguard, the Board described the different functions of the Minister of Labour and the limitations of the Board’s power in relation to the appointment of a conciliation officer and the validity of a notice of dispute:
[39] A review of Part I of the Code indicates that the Minister is authorized to perform a variety of functions, which include appointing mediators, appointing conciliation officers or commissioners, establishing conciliation boards and referring questions to the Board or to the parties to a dispute. There is no provision in Part I of the Code that authorizes the Board to review the exercise of any of these ministerial functions.
[40] Furthermore, had Parliament intended to confer jurisdiction on the Board in this regard, it is not unreasonable to expect that some direction would have been provided to the Board regarding, for example, what types of ministerial actions, appointments, referrals or decisions might be reviewed, what grounds of review would apply to the challenge, and what time limits would apply to the filing of the review application. The Code provides no direction in regards to such issues.
[41] Similarly, while Part I of the Code authorizes employers, unions and employees to file a variety of notices with the Minister of Labour, nowhere does it confer on the Board jurisdiction to declare these notices void.
[42] For these reasons, the Board is of the view that it has no jurisdiction to set aside the Minister of Labour’s appointment of the conciliation officer or to declare the notice of dispute void.
[97] In light of the foregoing, while the Board has the authority to declare that the notice to bargain meets the requirements of section 49 of the Code, it does not have the authority to declare that the notice of dispute meets the requirements of section 71 of the Code and the CIRR. The two types of notices serve different purposes: the first signals the commencement of the collective bargaining period, while the second enables the Minister of Labour to perform her functions under sections 71 et seq.
[98] The Board considers that it is therefore the responsibility of the Minister of Labour to determine whether she recognizes the request for conciliation and the conciliation procedure initiated by the parties under Quebec law. It is useful to note that the Minister of Labour may take a number of measures under section 72 of the Code. For instance, she can notify the parties of her intention not to appoint a conciliation officer, based on the particular circumstances of each matter.
VII. Conclusion
[99] In light of the foregoing, the Board declares the following:
- the activities carried out by CTMA fall under federal jurisdiction;
- a change of activity within the meaning of section 44(3) of the Code occurred effective February 1, 2009;
- the union remains the bargaining agent for the bargaining unit in question in this matter, in accordance with section 44(3)(a) of the Code;
- the parties remain bound by the collective agreement applicable to the employees in the bargaining unit, pursuant to section 44(3)(b) of the Code;
- all grievances pending and all proceedings initiated under the laws of the province of Quebec shall continue as proceedings under Part I of the Code, with such modifications as the circumstances require, in accordance with sections 44(3)(c) and 44(3)(d) of the Code;
- the notice to bargain given by the union to the employer on December 10, 2013, is in conformity with section 49 of the Code;
- responsibility lies with the Minister of Labour to determine whether or not the parties will be required to comply with the requirements set out in sections 71 et seq. of the Code relative to the conciliation procedure, based on the particular circumstances of this matter;
- on application made by either party, the Board is prepared to hear the parties within the shortest possible time frame on the issue of the maintenance of activities pursuant to section 87.4(4) of the Code.
[100] This is a unanimous decision of the Board.