Ontario Labour Relations Board

[1980] OLRB Rep. April 466

1805-79-R London and District Service Workers' Union, Local 220Applicant, v. Maclean‑Hunter Communications Division of Maclean-Hunter Cable TV Limited Respondent, v. Group of Employees Objectors.

BEFORE: P. Picher, Vice-Chairman, and Board Members D. B. Archer and E. J. Brady.

APPEARANCES: Ted Wohl and Al Campbell for the applicant; Donald J. McKillop, Q.C., Douglas Richardson, and Dorothy Turner for the Respondent; Phyllis Longthorne for the Objectors.

DECISION OF THE BOARD; April 30, 1980

2. This is an application for certification.

3. The respondent disputes the Board's jurisdiction to entertain this application. This, therefore, is a preliminary decision directed solely to a determination of the jurisdictional question.

4. The employees encompassed by the union's application for certification are involved in three aspects of the respondent's business: the radio paging service, the mobile communication service and the telephone answering service. The respondent contends that the Board lacks jurisdiction to entertain the application for certification on the grounds that the radio paging and mobile communication services are properly classified as "radio communication" within the meaning of the Radio Act, R.S.C. 1970, c. R-1, a subject which the respondent argues falls within the exclusive jurisdiction of the Parliament of Canada. Whether or not the telephone answering service of the respondent's business, standing by itself, would fall to federal jurisdiction, counsel contends that this aspect of the respondent's service cannot be severed from the paging and mobile communication portion of the respondent's business and, therefore, would also come under federal jurisdiction.

5. Mr. Douglas Richardson, General Manager of MacLean Hunter Communications explained that as regards the paging and mobile communication services the respondent may be described as being in the business of selling airtime and communication. For the mobile communication service they sell airtime to others who use it to facilitate their own businesses; with respect to the paging service they use airtime to sell communication. To carry on these two portions of their business the respondent is required to be licensed under the Radio Act, a federal statute. The service category of the licence is "Restricted Public Commercial" which Richardson testified indicates that their use of radio communication is the very source of their revenue. Their situation might be contrasted with a local taxi cab company using radio communication in their dispatch service merely to assist them in carrying on their business of transporting the public via taxis.

6. The paging and mobile communication aspect of the respondent's business is carried out solely within the Province of Ontario. Richardson testified that their licence as it relates to paging, for example, covers a range of approximately 15 miles, a radius falling completely within Ontario. We note, though, that the restriction inscribed on the licence, "Where the herein licenced station is authorized to provide a radio paging service such service shall not be provided to persons residing outside Canada unless authorized by the Minister", does not prohibit service to another province.

7. The employees subject to this application work in an office in London, Ontario. To carry on the paging service the operators receive a message over the telephone in the London office and then send it over wires in the appropriate form to a transmitter four miles outside the city. On receipt by the transmitter, Hertzian waves are emitted to carry the message to the appropriate source. Hertzian waves are also the means by which the mobile communication service is provided.

8. Counsel for the respondent does not contend that the holding of a federal licence, by itself, brings the respondent under federal jurisdiction. He does not argue that a taxi company or ambulance service which might use radio communication to assist them in their work would come under federal jurisdiction simply because they require a licence issued pursuant to the Radio Act to operate their dispatch services. Counsel contends, however, that the respondent is subject to federal jurisdiction because radio communication is the essence of the paging and mobile communication aspect of the respondent's business and that the Radio Act and Regulations thereto fundamentally control the respondent in the performance of this significant portion of their business.

9. The union argues, on the other hand, that the respondent is subject to provincial not federal jurisdiction because none of the respondent's business extends beyond the provincial boundaries.

10. If the respondent either received Hertzian waves from outside the province or intentionally transmitted them to points beyond Ontario, the union concedes that federal jurisdiction would inevitably attach. This is the first case of which this Board is aware, however, where the radio communication has been confined within the province for both its point of origin and point of intended delivery. Focusing on this distinction, the question to be determined by this Board may be phrased as follows: whether radio communication by Hertzian waves which has consistently been held to come within the jurisdiction of the federal government falls, instead, to the jurisdiction of the province when the origination of the radio waves and the point of the delivery of the message takes place entirely within the Province of Ontario.

11. The British North America Act, 1867, 30 & 31 Victoria, c. 31 (U.K.), as amended, allocates jurisdiction between the federal government and the provinces in sections 91 and 92 which read as follows:

"POWERS OF PARLIAMENT

91. It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces; and for greater Certainty, but not so as to restrict the Generality of the foregoing Terms of this Section, it is hereby declared that (notwithstanding anything in this Act) the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next herein after enumerated; that is to say,-

92. Such Classes of Subjects as are expressly excepted in the Enumeration of the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces.

And any Matter coming within any of the Classes of Subjects enumerated in this Section shall not be deemed to come within the Class of Matters of a local or private Nature comprised in the Enumeration of the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces.

EXCLUSIVE POWERS OF PROVINCIAL LEGISLATURES

92. In each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subject next herein-after enumerated; that is to say, -

93. Local Works and Undertakings other than such as are of the following Classes: —

(a) Lines of Steam or other Ships, Railways, Canals, Telegraphs, and other Works and Undertakings connecting the Province with any other or others of the Provinces, or extending beyond the Limits of the Province;

(b) Lines of Steam Ships between the Province and any British or For­eign Country;

(c) Such Works as, although wholly situate within the Province, are before or after their 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.

13. Property and Civil Rights in the Province.

14. Generally all Matters of a merely local or private Nature in the Prov­ince." [emphasis added]

In Re Fisheries Act, 1914, A-G Can. v. A-G B.C., 1929 CanLII 439 (UK JCPC), [1930] 1 D.L.R. 194 (P.C.) the Judicial Committee of the Privy Council laid down four principles relating to the relative legislative competence of the federal government and the provinces:

"1. The legislation of the Parliament of the Dominion, so long as it strictly relates to subjects of legislation expressly enumerated in s. 91, is of para­mount authority, even though it trenches upon matters assigned to the pro­vincial legislature by s. 92....

2. The general power of legislation conferred upon the Parliament of the Dominion by s. 91 of the Act in supplement of the power to legislate upon the subjects expressly enumerated must be strictly confined to such matters as are unquestionably of national interest and importance, and must not trench on any of the subjects enumerated in s. 92, as within the scope of pro­vincial legislation, unless these matters have attained such dimensions as to affect the body politic of the Dominion...

3. It is within the competence of the Dominion Parliament to provide for matters which though otherwise within the legislative competence of the provincial legislature, are necessarily incidental to effective legislation by the Parliament of the Dominion upon a subject of legislation expressly enumerated in s. 91....

4. There can be a domain in which Provincial and Dominion legislation may overlap, in which case, neither legislation will be ultra vires if the field is clear, but, if the field is not clear and the two legislations meet, the Dominion legislation must prevail.

5. The legislative jurisdiction over radio communication was first determined in Canada when the following question was referred to the Supreme Court of Canada in 1931 by the Governor-General in Council: "Has the Parliament of Canada jurisdiction to regulate and control radio communication, including the transmission and reception of signs, signals, pictures and sounds of all kinds by means of Hertzian waves, and including the right to determine ':he character, use and location of apparatus employed?" The question arose for consideration because Canada had signed treaties regulating radio communication and was faced with a question as to which legislature, the federal, provincial or both, had jurisdiction to pass; the radio communication legislation required to insure compliance with Canada's obligations under the treaties. The majority of the Court, upheld on appeal to the Privy Council, answered the question referred to it in the affirmative.

6. The two heads of power contained in section 92 of The British North America Act under which the provinces claimed at least partial jurisdiction were section 92(13) —property and civil rights — and section 92(16) — things of a purely local and private nature. In their decision, Re Regulation and Control of Radio Communication, 1931 CanLII 83 (SCC), [1931] 4 D.L.R. 865, the majority of the Supreme Court of Canada, however, concluded on the basis of the scientific knowledge relating to Hertzian waves available at the time that radio communication was not either a matter of a merely local or private nature within the province or a subject related to property and civil rights. The Court reached this conclusion on the understanding that it was not possible to confine the effects of Hertzian waves within the limits of a province. At pp. 889-891 Smith, J. explained the extended effect of transmitted radio waves in the following way:

" The electro-magnetic waves sent out from a transmitting station ordinarily travel through space in all directions, and the distances at which they can be picked up by a receiver, and at which they may cause interference with other transmitting stations, vary with the electric power and the frequency used.

In Morecroft's Elements of Radio Communication, p. 98, there is a table showing the variation according to power. It is there stated that a 50-watt station will give good service at 10 miles, poor service at 100 miles, and interference at (00 miles; a 500-watt station will give good service at 30 miles, poor service at 300 miles, and interference at 1,800 miles; and a 5,000-watt station will give good service at 100 miles, poor service at 1,000 miles and interference at 6,000 miles....

From what has been said above, and what further appears in the case, it is evident that all these services by radio communication would be rendered of little practical use to anybody if there were not regulation somewhere by which transmitting stations would be prevented from interfering with each other....

When a transmitter sends out into space these electro-magnetic waves, they are projected in all directions for the great distances referred to, and it is not possible for the transmitter to confine them within the bounds of a Province. As already pointed out, a transmitter of only 50-watt power — the power of an ordinary house lamp — will radiate these waves in all directions around it for a distance of 600 miles with sufficient energy at that distance to disturb and interfere with any radio communication passing through that field on the same or nearly the same channel or frequency." [emphasis added]

Lamont, J., who dissented in part agreed with the majority that the transmission of electro­magnetic waves could not be confined within provincial boundaries and should therefore be subject to the jurisdiction of the federal government. He said at pp. 884-885:

"When we consider the nature of radio communication and the fact that once the electro-magnetic waves are discharged from the transmitting stations they cannot be confined within the boundaries of a Province, or even the limits of a country, it is evident that a Provincial Legislature, whose jurisdiction is only Province-wide is not in a position to control the transmission of these waves, yet, without some control, radio communication would be impossible. So far, therefore, as the transmission of the waves is concerned a very wide jurisdiction must, in the present state of the art, be conceded to the Dominion Parliament. It belongs to Parliament because the more important matters which must be regulated and controlled lie in the international field where control can only be assured by treaty, convention or agreement between nations." [emphasis added]

Lamont, J. disagreed with the bottom line of the majority decision, however, because of his view that the receiving of radio waves could be separated from the transmission of radio waves and his conclusion that receiving was of a merely local and private nature which in his opinion, therefore, was properly subject to provincial jurisdiction. As evident in the above quotation, however, he agreed with the majority's conclusion that the transmission of electro-magnetic waves must fall to the jurisdiction of the federal government because, once discharged, they could not be confined within provincial boundaries.

14. Having concluded on the basis of the far reaching effects of transmitted radio waves that radio communication did not come within any of the enumerated heads of provincial power under section 92 of The British North America Act, the majority of the Court held that the federal government had complete jurisdiction over radio communication. The majority grounded its finding of federal jurisdiction in the initial words of section 91 giving the federal government power ..... to make Laws for the Peace, Order, and good Govern­ment of Canada, in relation to all Matters not coming within the Classes of Subjects of this Act assigned exclusively to the Legislatures of the Provinces". As stated by Newcombe, J. at p. 874,

“…radio communication is a much more expansive matter and cannot, upon present information, be constructed in a manner to qualify as relating to mat­ters of a local or private nature in the Province.

The subject is one which, undoubtedly, relates to the peace, order and good Government of Canada; and I am not satisfied, for any of the reasons which have been submitted, or which I have been able to discover, that it falls within any of the classes of subject assigned exclusively to the Legislatures of the Provinces."

15. The question was then appealed to the Judicial Committee of the Privy Council which upheld the decision of the Supreme Court of Canada. In their decision, Re Regulation & Control of Radio Communication, A-G Que. v. A-G Can. et al 1932 CanLII 354 (UK JCPC), [1932] 2 D.L.R. 81, (also referred to as the Radio Reference case) the Privy Council focused on two grounds of federal jurisdiction over radio communication which had only been touched on by the Supreme Court of Canada. Referring to the federal government's authority to pass legislation to implement its treaties the Privy Council stated that because the radio communication treaties in question had been signed by Canada as a Dominion on her own behalf rather than by Britain on behalf of Canada, the federal government's treaty implementation powers found under section 132 of The British North America Act were not strictly applicable as a basis of federal jurisdiction. Their Lordships further explained that because the possibility of Canada binding herself to a treaty with foreign powers on her own behalf as a Dominion rather than merely becoming bound through Great Britain was not anticipated at the time of the drafting of The British North America Act, the jurisdiction to pass legislation implementing such a treaty was not explicitly mentioned in either section 91 or section 92. Notwithstanding the absence of an explicit reference in The British North America Act to a federal government power to pass legislation to implement treaties entered into on Canada's own behalf, the Privy Council concluded that the power for the federal government to pass legislation to implement the radio communication treaties could be found in the general words of section 91 giving the federal government the power to make laws "for the Peace, Order and good Government of Canada..."

16. The Privy Council further concluded that the subject matter of radio communication fell to federal jurisdiction through section 92(10)(a) of The British North America Act providing that the federal government has jurisdiction over Telegraphs, and other Works and Undertakings connecting the Province with any other or others of the Provinces or extending beyond the Limits of the Province..." Because the Supreme Court of Canada had grounded the federal government's jurisdiction in the opening words of section 91 relating to its power to make laws for the peace, order and good government of Canada, it was unnecessary for the majority of that Court to address the further possibility of also finding federal jurisdiction under section 92(10)(a). As did the Supreme Court, the Privy Council rejected the argument of the provinces that radio communication could be divided into a transmission segment and receiving segment. Their Lordships concluded that because the transmitting instruments clearly had to be under the control of the Dominion (an apparent adoption of the reasoning of the Supreme Court of Canada that the transmission of radio waves could not be confined within provincial boundaries) so too did the receiving instruments. Lord Viscount Dunedin said at page 86,

"Once it is conceded, as it must be, keeping in view the duties under the Convention, that the transmitting instrument must be so to speak under the control of the Dominion, it follows in their Lordships' opinion that the re­ceiving instrument must share its fate. Broadcasting as a system cannot exist without both a transmitter and a receiver. The receiver is indeed useless without a transmitter and can be reduced to a nonentity if the transmitter closes. The system cannot be divided into two parts, each independent of the other....

Their Lordships have therefore no doubt that the undertaking of broadcast­ing is an undertaking "connecting the Province with other Provinces and ex­tending beyond the limits of the Province".

17. The Lordships of the Privy Council concluded that broadcasting fell within both the words "telegraphs" in section 92(10)(a) and "undertakings connecting the Province with any other or others of the Provinces or extending beyond the limits of the Province". The Privy Council further explained the effect of a subject falling within the ambit of one of the excepted matters in section 92(10): through section 91(29) the subject assumes a preferential place in section 91 along with the other subjects specifically enumerated therein.

18. The decision of the Privy Council in the Radio Reference case, therefore, establishes exclusive federal jurisdiction over radio communication. For jurisdiction to pass legislation necessary to implement the radio communication treaties and conventions, its finding of federal jurisdiction is grounded in the federal government's power in section 91 of The British North America Act to pass laws for the peace, order and good government of Canada. For general jurisdiction over the subject matter apart from the implementation of the Convention, it fixed federal power in section 92(10)(a) of The British North America Act which excludes from provincial jurisdiction undertakings which connect provinces or extend beyond the limits of the province.

19. The Privy Council does not in its judgment enter the detailed analysis of the scientific attributes of Hertzian waves that was, of necessity, extensively engaged in by the Supreme Court of Canada. However, a reading of the judgment of the Privy Council in its entirety indicates that the Privy Council fully endorsed the Supreme Court's conclusions that radio communication could not fall to provincial jurisdiction under either section 92(13) - property and civil rights or section 92(10) - matters of merely local or private nature - for the reason that Hertzian waves could not be contained within provincial boundaries. In support of our interpretation of the Privy Council's decision, we note particularly such statements in the decision as “…upon the whole matter therefore their Lordships have no hesitation in holding that the judgment of the majority of the Supreme Court was right...", and "once it is conceded, as it must be, that the transmitting instrument must be... under the control of the Dominion..." as well as the statement in their analogy to aeronautics, "it is quite possible to fly without going outside the Province" [emphasis added]. In the Board's assessment the Privy Council's finding of federal jurisdiction over radio communication was not limited to a factual situation where the point of emission of the radio wave was in one province and the point of the intended reception of that wave was in another. Rather, the Board concludes that the Privy Council determined that radio communication by Hertzian waves, whatever the points of emission and delivery, was a matter coming within the exclusive jurisdiction of the Parliament of Canada.

20. Both the Board's interpretation of the Radio Reference case and the Radio Reference decision itself are explicitly supported by two Supreme Court of Canada decisions: Capital Cities Communications Inc. v. Canadian Radio-Television Commission (1977), 1977 CanLII 12 (SCC), 81 D.L.R. (3d) 609 and Re Public Service Board, Dionne and Attorney General of Canada (1977), 1977 CanLII 207 (SCC), 83 D.L.R. (3d) 178.

21. In Capital Cities Communications Inc. v. Canadian Radio-Television Commission (1977), 1977 CanLII 12 (SCC), 81 D.L.R. (3d) 609, the Supreme Court of Canada held that the Parliament of Canada had exclusive legislative authority over the regulation of cable television stations and their programming at least where the interception of television signals and their transmission to cablevision subscribers was involved in the programming. Once again the Court refused to sever the reception of signals and their re-transmission. Accordingly, the Court held that the undertaking in question which consisted of the reception of television signals from outside the province and their re-transmission in Quebec through coaxial cables to subscribers, also in Quebec, was a single undertaking which fell to federal jurisdiction under section 92(10)(a) as an undertaking which extends beyond the province. The Court rejected the argument made by the appellant, Capital Cities, that the cable re-transmission aspect of the scheme was; a separate and local undertaking by virtue of the fact that both the point of re-transmission of the signal over coaxial cables and the reception of the signal by subscribers all took place within the Province of Quebec and was accomplished through the use of self-contained coaxial cables rather than Hertzian waves.

22. While the facts of the case at hand, where the point of the origin of the Hertzian wave and the point of intended reception is within the same province, differ from the Capital Cities case, where the original transmission of the Hertzian wave to the point of re-transmission crossed a provincial boundary, the decision of the Supreme Court of Canada strongly suggests that this factual distinction does not affect the constitutional jurisdiction. Laskin, C.J.C. at pp. 621-622 said:

"Such signals may, of course, come by Hertzian waves from within a particular Province as well as from without it. The contention appears to be that since there is a local character to the cable distribution system in its physical aspect, and it may be receiving signals intraprovincially, it does not fall under total federal legislative authority. I understood, however, that it was conceded that federal jurisdiction was exclusive in respect of the receipt of signals at the antenna of the cable distribution system, wherever be their point of emanation. If that be the case, I do not see how legislative competence ceases in respect of these signals merely because the undertaking which receives them and sends them on to its local subscribers does so through a different technology." [emphasis added]

At p. 617 Laskin, C.J.C. further said,

"In dealing with the constitutional authority of Parliament to regulate cable distribution systems which receive and distribute television signals, I leave to one side, so far as the present case is concerned, the determination of regulatory authority over programmes carried by such systems which are of their own origination and which are transmitted to their subscribers in the Province of such origination, and hence not received by other owners of television sets in the Province."

Consistent with the Board's interpretation of the Radio Reference case, these passages, in our view, express the position of the Supreme Court of Canada that any transmission through Hertzian waves whether emanating from within the province in which they are received or out5ide that province falls to the jurisdiction of the Parliament of Canada for the reasons developed in the Radio Reference case. Given the different technology involved in the transmission of a signal by electrical impulses over coaxial cables, however, the Court has left to one side the determination of the constitutional jurisdiction of a cable television distribution enterprise receiving and transmitting entirely through coaxial cables rather than Hertzian waves programs developed by it in the province for subscribers who are also in the same province. Because the cablevision stations and their programming at issue in Capital Cities involved the interception of television signals the Court did not need to address that matter and readily held that the enterprise fell entirely within the jurisdiction of the Parliament of Canada even though the cable distribution aspect of the enterprise was located entirely within Quebec.

23. The Supreme Court of Canada reached the same conclusion in Re Public Service Board, Dionne and Attorney General of Canada, supra, a decision released by the Court concurrently with Capital Cities.

24. The Union in this case argued that the decisions in the Capital Cities and Dionne cases should be confined to the fact situations existing therein where the points of emission of the Hertzian waves and their intended reception at the antenna clearly crossed provincial lines. The union relied heavily on the dissent of Mr. Justice Pigeon in the Dionne case to argue that because the radio transmission carried on by MacLean Hunter is both emitted and received in Ontario it would properly be classified as a local undertaking subject to provincial jurisdiction. In reviewing Pigeon's J.S dissent, however, this Board finds support for the position of the company rather than that of the union. Pigeon. J. dissented from the majority on the basis of his opinion that because of the different, and presumably more containable, technology involved in cabletelevision, a distinction should be made between the radio communication aspect of its undertaking and the cable distribution portion. At p. 183 he framed the issue as follows:

"In my view, the question in this case is whether the unchallengeable federal jurisdiction over the radiocommunication involves exclusive legislative authority over all cable distribution systems making use of signals received by radio communication or whether such exclusive authority extends only to what I will call the radio communication aspect." [emphasis added]

At pp. 185-188 he expressed the basis of his opinion that the undertaking could be divided:

"In support of federal jurisdiction over coaxial cable networks it is contended that the change of technology in transmission should make no difference. The fallacy of this argument is that it is inconsistent with the very basis of federal jurisdiction which is the use of hertzian waves....

In Re Regulation and Control of Radio Communication; A. -G. Que. v. A.­

G. Can., 1931 CanLII 83 (SCC), [1931] 4 D.L.R. 865, [19311 S.C.R. 541, 39 C.R.C. 50; affirmed 1932 CanLII 354 (UK JCPC), [1932] 2 D.L.R. 81, [1932] A.C. 304, [1932] 1 W.W.R. 563, C.R.C. Inc. cit., the judgments of the majority in this Court which were affirmed by the Privy Council, make it abundantly clear that the very basis of federal jurisdiction was that hertzian waves, by their very nature, could not be confined with a Province....

With respect to what was said by the Privy Council, it is important to bear in mind that the case was a reference dealing solely with 'radio communications', that is transmissions by means of hertzian waves. The language used should be construed in the light of the question which was under consideration and should not be treated as applicable to any entirely different question....

…it must be considered that a cable-distribution network has to be carried either in underground conduits, as is done only in some densely built urban areas, or, as in this case, carried over utility poles. Those utilities are, as a rule, under provincial jurisdiction as in these cases. In fact the cable net­works are, in the main, the property of a provincial telephone company and the cable operators are only lessees.

It will thus be seen that from a physical point of view, with respect to the material set-up which is the essential feature of a cable system, the provincial aspect is by far predominant. The distinctive feature of a cable system, as opposed to radio broadcasting is that its signals of communication are carried over metal cables strung on poles throughout the area served instead of being carried over what is commonly called 'airwaves'." [emphasis added]

Two views are put forward in the judgment of Mr. Justice Pigeon: firstly, that because cable-television enterprises transmit their signals through physically tangible cables located entirely within the province rather than airwaves, it should be classified for constitutional purposes as a local undertaking and, secondly, that the cabletelevision station's admitted use of radio waves to capture the signal it then transmits over its cables should not, itself, render it "federal". For emphasis, Pigeon, J. points to what he calls the absurdity of classifying a local taxi company as "federal" just because it has a dispatch service which uses radiocommunication. At p. 188, however, he acknowledges that the taxi company's use of radio communication "is accessory to [its] principle business". The Board finds nothing in his judgment which would support the contention that a company which is principally engaged in radio communication would fall to provincial jurisdiction even where the points of emission and intended reception of the Hertzian waves are within one province. To the contrary, his dissent, in the Board's view, supports the company's position.

25. The British Columbia Labour Relations Board addressed the question of the constitutional jurisdiction of a company similar to the respondent in this case in Tasco Telephone Answering Exchange Ltd., [1977] 1 Can LRBR 273. Tasco's business included both radio paging within a 50 mile radius of Greater Vancouver and telephone answering services. Unlike the instant case, however, it was established in Tasco that the telephone answering service constituted the greatest bulk of Tasco's service to the public. In determining the constitutional jurisdiction of the paging aspect of Tasco's business the Board focused on the root principles developed in the Radio Reference case and did not mention the fact that a 50 mile radius of Greater Vancouver, might extend beyond the province. At pp. 275-276 the Board said,

“… the field of radio communication - a subject matter which was neither existing nor contemplated when ss. 91 and 92 of the B.N.A. Act were drafted in 1867 - has been held by the courts to fall within the federal legislative jurisdiction. The key decision in that regard was the Radio Reference case (in Re Regulation and control of Radio Communication in Canada, 1932 CanLII 354 (UK JCPC), [1932] A.C. 304). There the Privy Council held that radio communications was a matter of national interest and importance and therefore was and is a class of subject which affects the body politic of Canada. It was felt to be important enough a matter to warrant a single legislative authority throughout Canada; because of the importance of the subject matter to Canada, there should be no disturbance of one authority conflicting with another. The matters of international treaties and conventions were canvassed, and the argument that the province was making, that there be a distinction between transmitting and receiving, was overruled."

The Board in Tasco concluded that the essence of the radio paging service was communication through radio waves and that characteristic established the true nature of its business for the purpose of constitutional jurisdiction.

26. In answering the union's hypothetical question concerning the constitutional jurisdiction of a taxi company or police force, the Board in Tasco distinguished the two situations emphasizing, as did Pigeon, J. in Dionne, that taxi companies are not in the business of radio communication.

27. The Board further refused to sever the telephone answering services aspect of Tasco's business for constitutional purposes. Relying on Re Tank Truck Transport Ltd. (1960), 1960 CanLII 120 (ON HCJ), 25 D.L.R. (2d) 161 (Ont. H.C.), the Board concluded at p. 278 that the "telephone answering service of the employer [could not] be considered distinct and apart from the other services, although it still constitutes a major portion of the services provided for customers". The Board then found that Tasco's operation as a whole fell to federal jurisdiction.

28. The facts of this case are distinguishable from those confronting the Privy Council, the Supreme Court of Canada and The British Columbia Labour Relations Board in the cases discussed above because in this case both the points of the emission and intended reception of the radio waves are at all times within the province of Ontario. The legal principles developed in the Radio Reference case and fully endorsed in two concurrent decisions rendered by the Supreme Court of Canada forty-five years later in Capital Cities and Dionne, however, inevitably point to the conclusion that when an undertaking, in whole or in part, is fundamentally engaged in the business of radio communication by means of Hertzian waves, that undertaking falls to federal jurisdiction whether or not the waves are both emitted and received in one province.

29. It was not argued before this Board that the technology of radio communication by Hertzian waves has progressed in such a way as to dislodge the assumption upon which the Radio Reference case was decided, that assumption being that Hertzian waves, once emitted, cannot be confined within provincial boundaries. In fact it is implicit in the Supreme Court's decisions in Capital Cities and Dionne that that assumption still operates for radio waves even though different considerations might apply to the transmission of signals through electric impulses over coaxial cables.

30. Accordingly, on the basis of the well established judicial authority relating to radio communication, the Board finds that it lacks jurisdiction to entertain the application in question. The essence of MacLean Hunter's paging and mobile communication services is radio communication by Hertzian waves and thus is appropriately classified as such for the purpose of determining constitutional jurisdiction. Notwithstanding the fact that the radio waves are both emitted and received in Ontario, the Board concludes that the enterprise falls to federal jurisdiction pursuant to either the combined operation of section 91(29) and 92(10)(a) of The British North America Act as constituting an undertaking which extends beyond the province or pursuant to the federal government's powers to make laws for the peace, order a rid good government of Canada, or both.

31. On the basis of the evidence before it, the Board, following the reasoning in Tasco, further concludes that the telephone answering service portion of the business is not severable from its paging and mobile communication services and for constitutional purposes, therefore, follows the disposition of the paging and mobile communication services.

32. For the reasons given above, therefore, the Board dismisses the application for certification for lack of jurisdiction.