BUS 483 - Lecture 1: Sources of Employment Law

Nova Scotia (Attorney General) v. Canada (Attorney General) [1951] Supreme Court Reports 31

*ASK DANIELLE*

*ASK DANIELLE*

*BC (Provincial)* Labour Code - union context Employment Code - non- union context *Federal* One code that splits into two sections - one governs union and one governs non-union

What codes/acts set out the *minimum standards* governing employment in *union contexts in BC*?

- *B.C. Labour Relations Code* that governs unionized employment.

What codes/acts set out the *minimum standards* governing employment in *non-union contexts in BC*?

- *Employment Standards Act* that sets out minimum standards governing employment in non-union context

Intra Vires and Ultra Vires

- *Intra Vires*: within jurisdiction (authority) - *Ultra Vires*: outside jurisdiction (authority)

Section 91 and Section 92

- *S. 91* of the BNA Act lists the powers the *Federal Parliament* can exercise - *S. 92* lists the powers of the *Provincial Legislatures* - Unless the parties agree otherwise, the federal government must not make laws dealing with matters of provincial jurisdiction, and vice versa.

4. *UTU v. Central Western Railway Corp*

- A railway company which transported grain from nine elevators along a 105-mile track wholly within Alberta to C.N.R.'s interprovincial line was held not to be integral to a federal undertaking - The Ct. determined that C.N.R. (federal business) was not in any way dependent on the services of the intra-provincial railway

How does jurisdiction breakdown for employment law?

- About *90% of Canada's employees are covered by provincial employment or labour law* while the remaining *10% percent fall under federal labour law* - For the purposes of labour and employment laws, *businesses either fall under federal or provincial legislation* - In some cases, both may apply to different parts of a single business. - The *employment relationship is governed by the laws of the jurisdiction in which the services are rendered* Ex. Starbucks - not federal, however, if we talk about the coffee beans being transported across the country then it is federal Ex. Moving company - goes across provinces - federal in nature

What is an exception to the general principle that labour relations and employment standards are areas of exclusive provincial competence? (???)

- As an exception to the general principle that labour relations and employment standards are areas of exclusive provincial competence, Parliament may assert exclusive jurisdiction over employers over which it would not otherwise have jurisdiction, if it is shown that such jurisdiction is an integral part of its primary competence over some federal subject - *Two separate enterprises may be found to be included within one single and indivisible undertaking* - Dependence of a core federal work or undertaking upon a group of workers tends to support federal jurisdiction over those workers - Federal applies to one division while provincial applies to another division (in the same business)

What are some examples of employers governed by federal employment or labour laws?

- Banks - Marine shipping - Ferry and port services - Air transportation (airports, aerodromes and airlines) - Railway and road transportation that involves crossing provincial or international borders - Canals, pipelines, tunnels and bridges (crossing provincial borders) - Telephone, telegraph and cable systems - Radio and television broadcasting -Grain elevators, feed and seed mills - Uranium mining and processing - Businesses dealing with the protection of fisheries as a natural resource - Many First Nation activities - Most federal Crown corporations - Private businesses necessary to the operation of a federal act

Employment Law

- Body of law which regulates the rights, restrictions or obligations of *non-unionized workers and their employers*

What did the Counsel for the appellants argue in the Actton case? (5 points)

- Counsel for the appellants made the following points in support of the argument that the reviewing judge erred in deciding on provincial jurisdiction (should be federal): 1. He failed to determine whether Actton was a single federal work or undertaking, and proceeded on the assumption it had two separate businesses 2. By making this assumption, he failed to analyze the evidence pertaining to Actton's business on the question of a single federal undertaking 3. This ruling ignores the unique constitutional nature of truck and transportation operations 4. Dividing jurisdiction of Actton's employees creates confusion,uncertainty and interferes with Actton's choice of business model. 5. The finding of no functional integration was wrong

(5) *Bachmeir Diamond and Percussion Drilling Co. v. Beaverlodge District of Mine, Miller and Smelter Worker's Local Union No. 913*

- Ct. held an employer who contracted to do drilling work for a Crown corporation, incorporated for the purpose of producing, refining and treating uranium ore under the Atomic Energy Control Act and declared to be for the general advantage of Canada, was not necessarily an integral part of a federal undertaking

What is the most important first step in any employment dispute?

- Determine if the employment relationship falls under *federal or provincial jurisdiction* - This question determines what laws apply-federal or provincial- and may provide a party with a technical jurisdictional defence or argument

What are the key areas of *provincial responsibility* outlined in Section 92?

Some key areas of provincial responsibility delineated in S. 92 of the BNA Act, 1867 include: a) Direct Taxation within the Province in order to the raising of a Revenue for Provincial Purposes; b) the Management and Sale of the Public Lands belonging to the Province and of the Timber and Wood thereon; c) the Establishment, Maintenance, and Management of Hospitals, Asylums, Charities; d) Shop, Saloon, Tavern, Auctioneer, and other Licences in order to the raising of a Revenue for Provincial, Local, or Municipal Purposes; e) Local Works and Undertakings; f) Solemnization of Marriage in the Province; g) Property and Civil Rights within the Province; h) Administration of Justice in the Province; i) Generally all Matters of a merely local or private Nature in the Province.

*ASK DANIELLE*

While majority of the workers in Canada are governed by provincial employment standards, the Constitution Act, 1867 does not expressly delineate any guiding principle concerning provincial or federal jurisdiction in employment area. Some leading constitutional decisions dealing with employment law indicate that employment standards generally is within provincial jurisdiction as it concerns "civil rights" which is under provincial legislative jurisdiction under S. 92(13)— "Property and Civil Rights in the Province"

What are the key areas of *federal responsibility* outlined in Section 91?

a) the Public Debt and Property b) the Regulation of Trade and Commerce c) the Raising of Money by any mode or system of taxation d) Postal Service e) Militia, Military and Naval Service, and Defence f) Navigation and Shipping g) Currency and Coinage h) Banking, Incorporation of Banks, and the Issue of Paper Money i) Indians, and Lands reserved for the Indians j) Naturalization and Aliens k) Marriage and Divorce l) Criminal Law

REVIEW ACTTON CASE WITH DANIELLE

- Subsidiary must be vital to federal undertaking - SuperSave Industries is the subsidiary and Actton is the federal undertaking?

(6) *Actton Transport Ltd. v. Director of Employment Standards*

- Four garbage truck drivers filed complaints with the Employment Standards Branch against Actton Transport Ltd. and Super Save Disposal Inc. alleging they were not paid overtime in accordance with the Employment Standards Act - Actton and Super Save opposed the claims on the basis that the drivers were employed by the appellant, Actton, a federally regulated enterprise, the Act did not apply to them, and hence the Director of Employment Standards had no jurisdiction. - The Director's delegate decided that the matter was provincial, not federal. This was affirmed on appeal to the Employment Standards Tribunal and was not disturbed on reconsideration. - The appellants petitioned for judicial review. The Supreme Court decided that the Tribunal did not err in finding that the drivers' employment fell under provincial jurisdiction. - Actton and Super Save appealed the BC Supreme Court decision arguing, among other things, that the judge erred in determining the Director had jurisdiction under the ESA with respect of the employment of any employees of Actton Transport

Employment Standards Act

- Governs *provincial non-union context*

How is jurisdiction split for labour law and employment law in Canada?

- In Canada, the jurisdiction for labour and employment law is split between the *federal parliament and the provinces* through the BNA Act (Constitution Act 1867) - A federation usually consists of at least two main levels of government - local provinces and a federal government - In Canada we have the Federal and Provincial/territorial governments - The two levels of government can't share the same powers, as that would lead to direct competition and chaos.

(2) *Northern Telecom Ltd. V. Communications Workers of Canada (1978)* (???)

- Issue arose of whether installers employed by a subsidiary of a core federal business, Bell Canada, were integral to that undertaking. (1) Parliament has no authority over labour relations as such nor over the terms of a contract of employment; exclusive provincial competence is the rule (2) By way of exception, however, Parliament may assert exclusive jurisdiction over these matters if it is shown that such jurisdiction is an integral part of its primary competence over some other single federal subject [e.g. Banking, Telecommunications, etc.] - Rule is provincial law governs employment - it is the exception that federal law will apply when the work the employees are doing is *so integral to the federal business that they are part of that federal business* - Bell: telecommunications (governed by Federal Government) - Thus, the regulation of wages to be paid by an undertaking, service or business, and the regulation of its labour relations, being related to an integral part of the operation of the undertaking, service or business, are removed from provincial jurisdiction and immune from the effect of provincial law if the undertaking, service or business is a federal one (???) - In order to determine the nature of the operation, one must look at the normal or habitual activities of the business as these of "a going concern", without regard for exceptional or casual factors; otherwise, the Constitution could not be applied with any degree of continuity and regularity - When analyzing if federal or provincial: look at the *operation* - look beyond their title, look beyond what the business does - look at their specific duties and responsibilities

Actton Continued...

- It is the Constitution which determines jurisdiction, not the style of the business organization or its convenience. *If Actton chooses to operate in both jurisdictions [federal and provincial], it will have to accommodate both labour and employment scheme* - Whether an aspect of a business should be considered part of a single federal undertaking (the appellants' position in this case) or as an operation functionally integral to a federal undertaking, it all comes down to functional integration - In other words, common ownership must be coupled with functional integration and common management. A physical connection must be coupled with an operational connection. A close commercial relationship is insufficient. - Functional integration requires that prima facie the provincial undertaking be *vital or essential*, not just integral, to the federally regulated undertaking. - To be "vital or essential" the provincial undertaking must be shown to be "absolutely indispensable or necessary" to the federal undertaking. The test is strict in order to respect the constitutional boundaries of ss. 91 and 92 of the Constitution Act, 1867 - *Federal jurisdiction over employment and labour matters is the exception and provincial jurisdiction is the general rule*

Summary of determining federal jurisdiction...

- Once it is settled that a core federal undertaking is involved, a particular subsidiary's habitual and normal activities and their practical and functional relationship to the core federal undertaking must be examined - The court must be satisfied that the *subsidiary's operation* can be characterized as *"vital", "essential" or integral"* to a federal undertaking

Can governments delegate powers outside of their jurisdiction?

- Parliament of Canada and Provinces are sovereign bodies within their own legislative sphere: exclusive jurisdiction to legislate with regard to the subject matters assigned to them under S. 91 or S. 92.

(3) *Re Arrow Transfer Co. Ltd.,1 Can* (???)

- Provides a useful statement of the method adopted by the courts in determining constitutional jurisdiction in labour matters. - First, one must begin with the operation which is at the core of the federal undertaking. Then the courts look at the particular subsidiary operation engaged in by the employees in question. The court must then arrive at a judgment as to the relationship of that operation to the core federal undertaking, the necessary relationship being variously characterized as "vital", "essential" or "integral" - In each case the judgment is a functional, practical one about the factual character of the ongoing undertaking and does not turn on technical, legal niceties of the corporate structure or the employment relationship. - Example: Security or janitorial service performed by an agency for a Bank within British Columbia. The Bank is clearly a federal undertaking. Query if the service-security or janitorial-is vital or integral to the core federal undertaking? Very likely not.

Which government has more decision-making power in employment law?

- Provincial government has *default power* to make decisions in employment law - 90% of employment is governed by provincial legislation - 10% governed federally

Labour Law

- Regulates rights, restrictions, or obligations of *trade unions, unionized workers and their employers*

What sections of the BNA Act divide powers between provincial and federal governments?

- Section 91 and Section 92 of the BNA Act set out framework for government of Canada and divide powers between the provincial and federal governments (discusses power of judges) - Provincial government only appoints provincial judges (lowest level of court)

(1) *Toronto Electric Commissioners v. Snider [1925]*

- The Privy Council (PC) considered in Snider a federal legislation called Industrial Disputes Investigation Act, 1907. - Under this Act, the Fed. gov't tried to create industrial peace-prevent strikes and lock-outs- through boards of conciliation - The Act was held by PC to be ultra vires of Parliament. - PC held that imposing labour standards laws were within provincial jurisdiction since "it [was] obvious that these provisions dealt with civil rights. - After Snider, a series of PC and SCC decisions further limited Parliament's jurisdiction in employment matters.

What happens when one level of government passes a law that intrudes on the jurisdiction of the other government?

- The courts will strike it down as ultra vires (beyond one's legal power or authority)

What happens if an employer is not in a business/industry described above?

- The employment standards that regulate conditions of work in the employer's business are likely those enacted by the *local provincial or territorial government where the employer conducts business and where its employees provide service*

What did the BC Court of Appeal decide in the Actton case?

- The facts are compelling that Super Save's operations are *disconnected from any interprovincial activity conducted by Actton* - It follows that *when Actton supplies labour and services to Super Save, it is not engaging in interprovincial trucking* - *Nothing about the deployment of labour and services to Super Save that connects it with Actton's interprovincial activity so as to make it part of a single undertaking* - The Attorney General responds that there is no evidence that the garbage hauling undertaking is "absolutely indispensable or necessary" to the international/interprovincial trucking undertaking. Both are stand-alone businesses. ATL's trucking undertaking is an operation to provide trucking services, some interprovincial and some intraprovincial. - Only the interprovincial aspect of ATL's undertaking can be characterized as "connecting" and "extending". The provision of drivers to SSDI is not essential to achieving that connecting or extending purpose. - Nothing in the record establishes that supplying labour and services to the local garbage business is vital to the interprovincial trucking business

How do the levels of court run for employment law?

1) Employment Standards Branch 2) Employment Standards Tribunal 3) BC Provincial Court 4) BC Supreme Court 5) BC Court of Appeal