Ontario Taxi Association 1688 C.L.C. v. Windsor Airline Limousine Services Limited, 1980 CanLII 900

Ontario Labour Relations Board

[1980] OLRB Rep. February 272

1171-79-R Ontario Taxi Association 1688 C.L.C., Applicant, v. Windsor Airline Limousine Services Limited carrying on business as Veteran Cab Company, Respondent, v. Group of Employees, Objectors.

BEFORE: M. Cr. Picher, Vice-Chairman, and Board Members W. G. Donnelly and W. F. Rutherford.

APPEARANCES: Michael Mitchell for the applicant; C. F. Clark, G. Skillings, Earl Fraser and Jack McDougall for the respondent; Robert Mark Sumner, Ronald James Lariviere, Stuart J. Caverhill, Louis Scarbeau, Doreen Patrick and Stanley F. Heeney for the objectors.

DECISION OF M. G. PICHER, VICE-CHAIRMAN, AND BOARD MEMBER W. F. RUTHERFORD; February 4, 1980

1. The name: "Windsor Airline Limousine Service Ltd. Veteran Taxi Co. (Subsidi­ary)" appearing in the style of cause of this application as the name of the respondent is amended to read: "Windsor Airline Limousine Services Limited carrying on business as Veteran Cab Company".

2. This is an application for certification relating to dispatchers employed by a taxi company. Collective bargaining is a new development in the taxi industry and this case raises, apparently for the first time, the issue of the extent of the Board's constitutional jurisdiction in this area of commercial activity.

3. The respondent (hereinafter referred to as Veteran Taxi) operates a local taxi service in the City of Windsor. The applicant union seeks bargaining rights for a bargaining unit of dispatchers and telephone operators employed by the respondent. Two other applications for the certification of units of drivers have also been filed by the union as well as a number of unfair labour practice complaints. At the initial hearing counsel for Veteran Taxi objected to the jurisdiction of the Board to hear this application on the grounds that Veteran Taxi is a federal undertaking within the meaning of section 92(10)(a) of the British North America Act (hereinafter referred to as the "B.N.A. Act"). He submitted that the labour relations of Veteran Taxi therefore fall under the provisions of the Canada Labour Code. On that basis he moved that the application be dismissed.

4. The Board heard extensive evidence respecting the nature of the respondent's business. Essentially it is a taxi company servicing the City of Windsor and the immediate surrounding area with radio dispatched cars. Some 132 taxis operate in Windsor under the respondent. Some are owned by Veteran Taxi and some are driver owned. While there was some variation in testimony, the evidence establishes that on average Veteran Taxi handles a daily flow of between 3000 and 3500 passenger trips. The great bulk of these trips are through the normal channel of telephone requests from customers followed by the radio dispatching of a car to their service. And the vast majority of all fares, ninety-eight percent of Veteran Taxi's business, are carried entirely within the City of Windsor and the immediate surrounding area of Ontario. It is not challenged that the respondent's business is primarily subject to provincial regulation. The respondent's cars hold public vehicle licences issued by the Ontario Ministry of Transportation and Communications. The fares which it charges for transportation in the City of Windsor and the five kilometers surrounding are regulated pro­vincially by local by-laws of the Board of Police Commissioners for the City of Windsor made under The Municipal Act of the Province of Ontario, R.S.O. 1970, c. 284, s. 377, ¶1 (as amended by S.O. 1978, c. 87,s. 40(10)).

5. Part of the respondent's business involves servicing the Airport and the CN Railway Station in Windsor as well as transferring mail for CN. It also provides a light package pick-up service from industries and shippers in Detroit to customers in the Windsor area. As part of its airport and railway station service, and in the course of its general service to the locality, Veteran Taxi occasionally carries passengers and mail across the adjacent border to nearby points in the United States. The employer did not adduce in evidence any business records to clearly establish what percentage of its business involves crossing the Windsor-Detroit border, but its counsel did not dispute the proposition that all trips involving a border crossing would amount to no more than one or two percent of its business.

6. Two issues arise. The first issue is whether by virtue of its association with airline, railway and postal service the employees of Veteran Taxi are employed "in connection with the operation of any federal work, undertaking or business" within the meaning of section 108 of the Canada Labour Code, R.S.C. 1970, c. L-1 (as amended). If they are this Board is without jurisdiction to entertain this application. (Eastern Canada Stevedoring Limited 1955 CanLII 1 (SCC), [1955] S.C.R. 529; [1955] 3 D.L.R. 721). If it be found that the respondent's relationships with federal undertakings do not bring it within federal jurisdiction, the second issue is whether its own extra-provincial traffic makes Veteran Taxi a federal work or undertaking in its own right as an undertaking extending beyond the limits of the province within the meaning of section 92(10)(a) of the B.N.A. Act. If it does this Board is likewise without jurisdiction. (A.G. Ontario v. Winner, 1954 CanLII 289 (UK JCPC), [1954] A.C. 541; [1954] 4 D.L.R. 657 (J.C.P.C:); Re Tank Truck Transport Ltd. 1963 CanLII 46 (SCC), [1963] 1 O.R. 272; 36 D.L.R. (2d) 636 (H.Ct.)). A related issue is whether any extra-provincial components of the respondent's activities are severable from the local and provincial aspects of its business. If so the union submits that this Board has jurisdiction in respect of the ninety-eight percent of Veteran Taxi's business that is purely local and provincial in nature.

7. When faced with a challenge to its constitutional jurisdiction the Board has a clear duty to consider and rule upon the challenge, and in so doing to recite and analyze the facts as thoroughly as possible. Clear findings of fact, with some comment on the ramifications of the facts for industrial relations policy, will assist the courts in the event of a judicial review of the Board's determination. As the Board put in in Dry Bulk Forwarders Ltd. [1974] OLRB Rep. Sc pt. 629 at 632:

"The Courts are the great equalizers in the application of constitutional law principles, but neither they nor the parties should be denied the viewpoints of the inferior tribunals - viewpoints based upon the viva voce evidence that comes before them. Only in this way can the courts meaningfully assess the facts upon which the constitutional law principles must be applied."

It is with those principles in mind that the Board turns to consider the facts and the law applicable in the case before it.

8. We deal firstly with the respondent's connection with the Windsor Airport. The exhibits filed by the respondent establish that it has provided taxi service from the Windsor Airport at least since July of 1957. At that time, operating under the name, "Veteran Cab Company of Windsor Limited," it entered into a lease with the Department of Transport of the Government of Canada by which it was granted the use of part of the airport property for the purposes of a taxi stand. Originally it operated from its airport taxi stand under a Public Commercial Vehicle Operating License issued by the Motor Vehicles Branch of the Department of Transport of the Province of Ontario. That license, apparently issued pur­suant to an order of the Ontario Highway Transport Board dated March 26, 1957, allowed the respondent to operate its vehicles:

"For the carriage of luggage and personal effects of passengers of Trans-Canada Airlines to and from the Department of Transport (Canada) Air Terminal at Windsor."

9. By Supplementary Letters Patent dated June 20, 1958 the respondent changed its name to "Windsor Airline Limousine Services Limited". On January 30, 1959 it was granted an Extra-Provincial Operating Licence by the Motor Vehicles Branch of the Ontario Department of Highways. In fact that license was issued under the authority of the Motor Vehicle Fransport Act, S.C. 1954. That federal statute authorized the Minister of Highways of the Province of Ontario, by delegation, to license inter-provincial and international undertakings for the transport of passengers and goods by motor vehicle in the same way it could if the extra-provincial undertaking were a local undertaking. In other words, Veteran Taxi became federally licensed as an international carrier. Its license, by its terms, is granted:

"For the carriage of passengers, air-freight in bond and passengers' luggage, from the Department of Transport (Canada) Air Terminal at Windsor, to the international boundary at the Detroit River, for furtherance to points in the State of Michigan, as authorized; and by shipment therefrom, from the said international boundary to the said air terminal, for and on behalf of Trans-Canada Airlines."

The above license is still held by Veteran Taxi.

10. On August 31, 1965 the respondent's lease of premises at the Windsor Airport was terminated and replaced by a license issued under the Government Airport Concession Operations Regulations made by Order in Council P.C. 1960-1755 on December 22, 1960. That is the license under which the respondent presently operates. It gives Veteran Taxi permission, granted by the Department of Transport of Canada, to maintain and operate a taxi and limousine stand at the Windsor Airport. The license operates from September 1, 1965 on a year-to-year basis during pleasure. By its terms the respondent is obligated to pay the airport authorities five percent of the gross revenue from the limousine service to and from the airport and five percent of the gross revenue for taxi-cab service from the air terminal building. The license further provides that the respondent may deduct from its payments to the airport authorities any tolls which it is required to pay in order to carry passengers through the Detroit-Windsor tunnel.

11. Veteran Taxi has a number of other obligations under its license with the Department of Transport. Its chief obligations, however, and those most material to this application, are found in articles 12, 13 and 14 of the license, which provide as follows:

"12. That the Licensee shall maintain at the said Airport, sufficient number of motor vehicles to accommodate normal anticipated passenger traffic at the said airport.

13. That the motor vehicles used by the Licensee in the exercise of the permission hereby granted shall be of a recent manufacture, roomy and neat in appearance, and shall at all times be maintained in good running condition.

14. That the Licensee shall file with the Minister the tariff to be charged by the Licensee in respect of its operations under this License as approved by and/or filed with the appropriate Municipal, Provincial or other Public Authority having jurisdiction, and that in the absence of such controlling authority the tariff must be approved by the Minister."

15. The evidence of Mr. John McDougall, Veteran Taxi's Office Manager, establishes that the respondent services the airport with both limousines and taxi-cabs. The limousines consist of three vans or mini-buses which meet incoming passengers arriving on the eight or so flights arriving daily at the Windsor Airport. Passengers using the limousine service pay a flat rate, approved by the Department of Transport, for transportation to a number of Windsor hotels as well as to hotels in Detroit. The limousine service to the hotels in both Windsor and Detroit is on a demand basis, meaning that the limousine will go only to the hotels requested y the passengers. It will therefore go to a Detroit destination only if the service is requested by a passenger. In addition to taking passengers to downtown Detroit hotels, the limousine service will carry them to some 14 other destinations in the area of Michigan surrounding Detroit and to Toledo, Ohio. Those trips, when requested, are also at flat rates fixed by agreement with the Department of Transport. Each of the three vans can carry up to ten or twelve passengers and the evidence establishes that something less than five percent of limousine customers request service into the U.S. The limousine service also makes the rounds of the downtown Windsor hotels to collect passengers for transport to the airport, also for a flat rate fee as agreed with the Department of Transport.

16. Veteran Taxi does not, however, collect passengers from any point in the U.S. for transportation to the Windsor Airport. In fact no part of the respondent's operations does this. The respondent is not licensed by any U.S. authority to pick up passengers in the United States and it does not do so in any aspect of its operations. Veteran Taxi's evidence is that it holds no U.S. licenses of any kind, whether for the pick up, delivery or carriage of either passengers or freight.

17. The limousine service carries the bulk of passenger traffic from the Windsor Air­port. However Veteran Taxi's cabs also take passengers from the airport, as they are entitled to do under the license with the Department of Transport. The cabs do not charge a flat rate limousine fee. Their passengers are charged on the general meter rate established by the municipal authorities, and that is so even if they are carried into Detroit.

18. In summary, therefore, the airport service provided by Veteran Taxi is essentially a limousine and taxi service to and from locations in Windsor and surrounding localities in Ontario. That is ninety-five percent of what it does. Accepting the evidence most generous to the respondent's position, five percent of its airport business consists of taking passengers, on request and not according to any established schedule, to destinations in adjacent localities in the United States.

19. Veteran Taxi's service at the Windsor railway station, though not identical is similar to its service from the airport. By agreement with the Canadian National Railway Company, Veteran Taxi has been granted, for an annual fee, the exclusive right to operate a taxi stand at the railway's Windsor station. The most pertinent portions of the agreement in force at the time of this application, dated November 18, 1978 are as follows:

"THE RAILWAY AGREES:

5. To grant, insofar as it may lawfully do so, to the Applicant, its servants and agents, the exclusive rights, during the continuance of this Agreement, to solicit taxi cab patronage at the Railway's said Station from passengers and customers of the Railway.

6. The Railway shall provide certain parking spaces at the said Station of the Railway for the use of the Applicant's vehicles, and the Applicant shall ensure that its vehicles, when parked or stopped at the said Station, will occupy only such designated spaces.

7. Nothing herein contained is intended by the parties hereto to constitute the Applicant, its servant or agents, or any of them, as servants or agents or the Railway with respect to the service to be provided pursuant hereto."

8. The evidence establishes that the bulk of cab service from the railway station involves the transportation of passengers from the station to destinations in the City of Windsor. Passengers using the respondent's cabs from the railway station to destinations in Windsor are charged according to the general taxi meter rate established municipally. While the respondent did not file any license by which it is authorized to carry passengers extra-provincially or internationally from the railway station, the evidence establishes that it does. Depending on schedules, some four to six trains arrive in Windsor daily. By agreement with Canadian National Railways, Veteran Taxi provides two limousines which are available to carry passengers on demand from the Windsor railway station to the Amtrack station in Detroit. Two owner-driver limousines have been designated exclusively for that purpose by the respondent. Passengers using this service are charged a flat rate of $6.00 pursuant to an agreement between the respondent and CN. Persons emerging from the railway station at Windsor may also, of course, make use of the respondent's other cabs at that location for transportation into Detroit. When they do they are charged according to the municipal meter rate. Again the respondent adduced no evidence of precise figures, but there is nothing in the evidence to suggest that the percentage of Detroit traffic from the railway station is any greater than from the airport.

9. A second aspect of the respondent's relationship with the Canadian National Railway is the transportation of mail. By an agreement between Veteran Taxi and CN made in 1968 the respondent contracted to carry mail between various Windsor railway offices and also between the Windsor railway offices and Detroit. Effective May 31, 1973 the railway took over the handling of its own mail between its Windsor offices. However it continued, as it still does, to use the services of Veteran Taxi on a five day per week basis to do a pick up of mail from the baggage room at the CN station, Windsor-Walkerville, and deliver it to the C.T.W. building on Lafayette Boulevard in Detroit.

10. Another aspect of the respondent's business which causes it to make occasional trips across the border is what it calls its Chrysler Accounts. This service in fact has nothing specifically to do with the automobile manufacturer of that name. It is, in effect, a light freight emergency courier service. Occassionally industries and business in Windsor and the surrounding region of Southern Ontario may have an urgent need for a piece of machinery, or an industrial or automotive part. Detroit is often the nearest source of such parts and Canadian businesses, especially when they have a pressing need, will obtain their needs through Detroit suppliers. This they can do by way of Veteran Taxi's Chrysler Account Service. Veteran Taxi receives a call, either from the Canadian purchaser or the Detroit supplier or shipper, requesting it to pick up a package from Detroit and to deliver it to the Canadian customer. For example, there was evidence adduced of the respondent collecting a package from an air freight shipper at the Detroit Metropolitan Airport and delivering it to a location of International Harvester Ltd. in Chatham.

11. Part of this service includes clearing the package through customs. Not all drivers are either able or willing to do this work and as a result some fifty or sixty drivers are designated as available to service the Chrysler Account calls. The company did not adduce any evidence to establish how many Chrysler Account trips it makes in an average day. It did not, however, dispute the testimony of union witness Allan Pilecki, a dispatcher with Veteran Taxi who testified that the company makes two or three Chrysler trips a day, nor the alternative estimate of dispatcher John Garry who testified that there might be one or two Chrysler calls a day. It is clear that with a daily output of over 3000 trips, the Chrysler Account is an extremely small percentage of Veteran Taxi's business.

12. There are two other border town activities of the respondent which it raised in support of its constitutional argument. Firstly, by an understanding with the Greyhound Bus Line, when a passenger on a Greyhound bus entering Canada is refused entry at Canadian Customs the bus line will call Veteran Taxi to collect the passenger at the Canadian Customs Office and return him to the Greyhound bus terminal in Detroit. Secondly, while the respondent does not, as we have noted, collect passengers in the U.S. there is one exception. The respondent's taxis returning from Detroit do, on an occasional basis and apparently without any objection from the American authorities, pick up passengers at a waiting room depot located at the U.S. end of the Detroit-Windsor tunnel.

13. All of the foregoing are activities which constitute the one to two percent of Veteran taxi's business which extends beyond the province. It is not disputed that the great bulk of Veteran Taxi's business is confined to Ontario.

14. We turn now to consider the principles of constitutional law that must be applied to the foregoing facts. Prima facie the regulation of contracts of employment, hours of work, minimum wages and other aspects of employment law, including labour relations, is a matter of property and civil rights within the jurisdiction of the province (Toronto Electric Commission v. Snider 1925 CanLII 331 (UK JCPC), [1925] 2 D.L.R. 5 (J.C.P.C.)). There are, however, areas of activity in which the regulation of industrial relations is reserved exclusively to the Government of Canada. Certain areas are reserved to federal authority by the terms of section 92(10)(a) of the B.N.A. Act which provide, in part, as follows:

"In each Province the Legislature may exclusively make laws in relation to …

(10) Local works and undertakings other than such as are of the following ciasses:­

(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."

24. Pursuant to that section Parliament has enacted legislation governing collective bargaining in federal areas of activity. Section 108 of the Canada Labour Code provides:

“This Part applies in respect of employees who are employed upon or in connection with the operation of any federal work, undertaking or business and in respect of the employers of all such employees in their relations with such employees and in respect of trade unions and employer's organizations composed of such employees or employers.”

25. Regulatory control of labour relations on a federal level can be exerted only in re­spect of activities which fall within federal authority by specific reference, (see Eastern Canada Stevedoring Limited 1955 CanLII 1 (SCC), [1955] S.C.R. 529; [1955] 3 D.L.R. 721)), by reference to the federal general or residuary power (See Pronto Uranium Mines Ltd. and Algoma Uranium Mines Limited v. Ontario Labour Relations Board, 1956 CanLII 153 (ON HCJ), [1956] O.R. 862; 5 D.L.R. (2d) 342;), by the exercise of federal authority by a declaration under section 92(10)(c) of the B.N.A. Act, or by direct relation to federal government operations and federal Crown enterprises, (see Reference Re Legislative Jurisdiction Over Hours of Labour, 1925 CanLII 77 (SCC), [1925] S.C.R. 505; [1925] 3 D.L.R. 1114).

26. It is common ground in this case that if Veteran Taxi falls under federal jurisdiction for the purposes of labour relations it must do so by virtue of the provisions of section 92(10)(a) of the B.N.A. Act. The Eastern Stevedoring case confirmed that it is within the exclusive competence of the Government of Canada to regulate the industrial relations of employees who are employed "in connection with any federal work, undertaking or business", as was originally provided by the Industrial Relations and Disputes Investigation Act, R.S.C. 1952, c. 152 and is now provided in section 108 of the Canada Labour Code, supra.

27. The first issue raised, therefore, by the respondent's argument is whether Veteran Taxi, because of its association with the Windsor Airport, the Windsor Railway Station and its involvement in the carriage of mail is engaged "in connection with" a federal work, business or undertaking within the meaning of section 108 of the Canada Labour Code. In this aspect of the case the Board does not concern itself with the cross-border trips made by Veteran Taxi; the question whether the two percent extra-provincial portion of the respondent's business, be it from the airport, the railway station, or from the homes and businesses of private customers in Windsor make Veteran Taxi a federal undertaking will be dealt with later. The Board must first consider how the principles of the Stevedoring case apply to those parts of the respondent's business that have some relationship with federal activities.

28. The Stevedoring case originated with this Board when, in 1954, the United Mines Workers of America applied for certification as the bargaining agent of the Eastern Stevedoring Company in the port of Toronto. Eastern Stevedoring was an independent company engaged in the loading of ships in Toronto harbour. All of its work was, therefore, in relation to ships and shipping companies which were federally regulated. The incumbent union representing the employees was the Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employees. It intervened and challenged the jurisdiction of this board to certify the employees of Eastern Stevedoring. When the Board decided that it had jurisdiction the Brotherhood applied to the Supreme Court of Ontario for an order quashing that decision and prohibiting the Board from taking further steps with regard to the certification. Because the application concerned the constitutional validity of the Industrial Relations and Disputes Investigation Act R.S.C. 1952, c. 152, the Attorney General of Canada, brought a reference to the Supreme Court of Canada to resolve the question of the jurisdictional validity of that statute.

29. The Supreme Court of Canada found that the federal statute was within the competence of Parliament. Having made that determination it was required to consider whether, because of their relationship to shipping, the company's employees worked "in connection with" navigation and shipping within the meaning of the federal labour legislation. The majority of the court responded in the affirmative, and in so doing estabished the principles to be applied to determine whether an employer, which is not itself a federal work or undertaking, works sufficiently in connection with a federal undertaking that the industrial relations of its employees fall to be federally regulated.

30. In tcday's marketplace there are few areas of industry and commerce in which pri­vate employers will not have some degree of contact with a federally regulated business or undertaking. The issue, therefore, is where to draw the line. At what point does a private employer become so associated with a federal activity that its industrial relations pass from provincial to federal regulation? On this in the Stevedoring case , Kerwin, C.J.C. had the following to say (at 1955 CanLII 1 (SCC), [1955] 3 D.L.R. 721):

"It is not to be presumed that Parliament intended to exceed its powers. Macleod v. A.G.N.S.W., [1891] A.C. 455 at 457; Re Reciprocal lns. Legislation, 1924 CanLII 460 (UK JCPC), [1924] 1 D.L.R. 789 at 801-2; [1924] A.C. 328 at 345-6; 41 C. C.C. 336 at 250-1, and, therefore, the Act before us should not be construed to apply to employees who are employed at remote stages, but only to those whose work is intimately connected with the work, undertaking or business."

31. In that case it was argued that the words "upon or in connection with" now embodied in section 108 of the Canada Labour Code, are so broad and pervasive that they would extend to any activity, however slim or remote its connection with a federal work, undertaking or business. In responding to that argument (at 1955 CanLII 1 (SCC), [1955] 3 D.L.R. 721 at 757) Estey, J. made the following statement, which has become the generally accepted test to determine whether an employer falls within those words:

"It may be conceded that in their widest import there is much in such a contention, but these words must be read and construed in association with the other language of the section and, indeed, with that of the Act as a whole. When so read I do not think they could be construed to include more than that which would form an integral part or be necessarily incidental to the work, undertaking or business that was within the legislative competence of Parliament."

The fact that an employer has a contract to provide services to a federal business or undertaking does not, of itself, necessarily bring that employer within the legislative competence of Parliament as regards its labour relations. The employer's business must be an integral part of the federal function in question.

32. As the Stevedoring case itself illustrates there is room for disagreement as to what is and is not a service that is an "integral part" of or "necessarily incidental" to a federal work or underrtaking. The majority of the court found that all of the employees came under the federal statute. Locke J., in a partial dissent, concluded that its office employees, not being involved with the ship, came under provincial jurisdiction. Rand, J. also dissented in part. While finding that the federal act was intra vires, he could not agree with the majority that any part of the stevedoring and terminal service fell under federal jurisdiction. It was his view that they provided a purely local and therefore provincially regulated service. While the majority did not carve out the office workers as Locke, J. suggested, Rand, J. nevertheless expressed particular concern over the possibility of fragmenting the employees of a business for industrial relations purposes. In a passage pertinent to the case before us, he said (at 1955 CanLII 1 (SCC), [1955] 3 D.L.R. 721 at 744):

"The legislative scope over Dominion undertakings extends clearly to all features of the ship. The requirements of structure and machinery are subject to special regulations. But the employees of the dock yard or of an engineering company employed generally in that work, because of being under an engagement to repair all ships of a Dominion line, would not thereby be brought under the Act. That local cost is one of the provincial conditions under which the vessel operates. Various needs of the undertakings call for services the furnishing of which has become specialized locally; and when unloading is performed by an independent organization, can a fractional portion of its employees be split off and annexed to Dominion labour control? A divided authority would become hopelessly confused as the employees were allocated to local or federal service. This is illustrated by analogous examples. Must be a general protective agency, because it serves banks, be treated in any degree in respect of labour relations as performing a service ancillary to banking. Would a general delivery service engaging with an express company to make local deliveries be drawn fractionally within the Dominion orbit? These considerations show that, from the standpoint of practicability, the entire organization must be taken to be under a single legislative control including such auxiliary staff such as office workers."

33. The authorities confirm that the mere fact that an employer has a contract with a federal Crown corporation does not place it on a higher plane of consideration that if its contract was with a private company working in the federal sphere. In Bachmeier, Diamond & Percussion Drilling Co. Ltd. v. Beaver Lodge District Of Mine, Mill and Smelter Workers, Local Union 913 (1962), 1962 CanLII 309 (SK CA), 35 D.L.R. (2d) 241 (Sask. C.A.) an employer disputed a certification order of the Saskatchewan Labour Relations Board in respect of its employees involved in drilling work for a crown corporation involved in the producing, refining and treating of uranium and incorporated for that purpose under the Atomic Energy Control Act, R.S.C. 1952, c. 11. Culliton, Acting C.J.S., applying the test from Eastern Stevedoring, concluded: "There is nothing in the material to show that Diamond and Percussion Drilling being done by the applicant company is either an integral part of, or necessarily incidental to the producing, refining or treatment of uranium ore.”

34. A more recent and most instructive decision of the Supreme Court of Canada on the constitutional status of the employment relations of federally connected employers is Montcalm Construction Inc. v. The Minimum Wage Commission, 79 CLLC ¶14, 190. In that case the Quebec Minimum Wage Commission sought to recover on behalf of the employees of Montcalm Construction deficiencies in wages and other monetary items to which they would have been entitled under Quebec legislation. The employer argued that because the construction work in question was performed under contracts with the federal government on federal lands, in the building of Mirabel Airport, the legislation of the Province of Quebec regulating employment relations could have no application.

35. The Court concluded that the provincial law must apply. Having followed the approach of the Court in the Eastern Stevedoring case, Beetz, J. wrote, for the majority:

"In submitting that it should have been treated as a federal undertaking for the purposes of its labour relations while it was doing construction world on the runways of Mirabel, Montcalm postulates that the decisive factor to be taken into consideration is the one work which it happened to be constructing at the relevant time rather than the nature of its business as a going concern. What is implied, in other words, is that the nature of a construction undertaking varies with the character of each construction project or construction site or that there are as many construction undertakings as there are construction projects or construction sites. The consequences of such a proposition are far reaching and, in my view untenable: constitutional authority over the labour relations of the whole construction industry would vary with the character of each construction project. This would produce great confusion. For instance, a worker whose job is to pour cement would from day to day be shifted from federal to provincial jurisdiction for the purposes of union membership, certification, collective agreement and wages, because he poured cement one day on a runway and the other on a provincial highway. I cannot be persuaded that the constitution was meant to apply in such a disintegrating fashion.

To accept Montcalm's submission would be to disregard the elements of continuity which are to be found in construction undertakings and to focus on casual or temporary factors, contrary to the Agence Maritime and Letter Carriers' decisions. Building contractors and their employees frequently work successfully and simultaneously on several projects which have little or nothing in common. They may be doing construction work on a runway, on a highway, on sidewalks, on a yard, for the pub tic sector, federal or provincial, or the private sector. One does not say of them that they are in the business of building runways because for a while they happen to be building a runway and that they enter into the business of building highways because they thereafter begin to do construction work on a section of a provincial turnpike. Their ordinary business is the business of building. What they build is accidental. And there is nothing specifically federal about their ordinary business.”

36. While we are, of course, not concerned in this case with a construction company, it appears to the Board that the foregoing passage is pertinent to the "federal connection" aspect of the respondent's argument. The respondent maintains that its contracts with the federal airport authorities and the railway bring it within federal jurisdiction. But surely to focus on those aspects of its business, leaving aside the separate question of its extraprovincial traffic, is to emphasize casual factors in a way that distorts the true picture of Veteran Taxi's business. In the Stevedoring case the employer devoted one hundred percent of its work to the service of a federal undertaking. In those circumstances the majority of the Court could clearly conclude that its activities were an integral part of and necessarily incidental to the business of the steamship lines that it serviced. In the instant case Veteran Taxi did not adduce evidence to establish what percentage of its business is derived from the airport and railway station. It is clear, however, that it is a very small percentage. Even if it is assumed, at the outside, that it could be as much as ten percent of Veteran Taxi's business, that would net change its essential character - which is the business of a local taxi company servicing the City of Windsor.

37. Does Veteran Taxi by its limousine service at the airport and the railway station and its agreement to transfer mail for CN perform work that is an integral part or necessarily incidental to the operation of aviation, railways and the national postal service? On the evidence before us we must find that the services of the taxi company at these locations are ancillary and incidental to the federal undertakings involved. The respondent does not provide a service that is necessary and integral to those federal undertakings.

38. Two court decisions in cases similar to the instant case support the Board's conclu­sion in this regard. In Murray Hill Limousine Service Ltd. v. Sinclair Batson, 66 CLLC ¶14,143 the Quebec Court of Queen's Bench held that the operations of baggage porters who serviced airline passengers up to the time their baggage was given to the airline prior to departure and immediately after the baggage was returned by the airline after landing, were not an integral part of airline transportation. The court concluded that the labour relations of those employees was within the constitutional competence of the province. More to the point, the Ontario High Court in Re Colonial Coach lines Ltd. and Ontario Highway Transport Board (1967), 1967 CanLII 178 (ON HCJ), 62 D.L.R. (2d) 270 found that ground transportation services provided to airline passengers to and from the Toronto Airport are provincially regulated. In concluding that the Limousine service was not an integral part of the function of aviation Donohue, J. described (at p. 276) the work performed by the company:

"Air Terminal Transport Ltd's Service is no doubt a convenience to the public in going to and from the airport but it is without doubt the case that the airport could continue to function without the service of Air Terminal Transport Ltd."

39. The distinction between the service being a "convenience” associated with the federal undertaking and a service being "an integral part of" a federal undertaking was followed and applied by this Board in its decision in North Shore Supply Co. Ltd., [1974] OLRB Rep. July 446. In that case the respondent, a subsidiary of Canada Steamship Lines Ltd., operated out of Thunder Bay as a ship chandler, providing ships with provisions such as food, hardware and equipment necessary for their day to day operations. Applying the test in the Eastern Stevedoring case as well as the Murray Hill Limousine and Colonial Coach Lines decisions, the Board concluded that the employer provided a service which was essentially a convenience to shipping operations. It did not thereby become an integral part of the activity of shipping itself.

40. Applying the foregoing authorities, the Board cannot conclude that Veteran Taxi is an integral part of aviation, railroading and the postal service. The fact is that it has made contracts with the Department of Transport and Canadian National Railways to make itself available for the convenience of their passengers, and nothing more. Like the operation of a newsstand, coffee shop or parking lot, the respondent's taxi stands at the airport and railway station are a convenience and not an integral part of air and rail transportation. (Toronto Auto Parks (Airport) Limited, [1978] OLRB Rep. July 682). It's agreement to do a daily mail transfer from Windsor-Walkerville is a commercial convenience in furtherance of CN's postal contracts. When the extent of Veteran Taxi's postal activity is compared with that of the employer in The Letter Carriers' Union of Canada v. Canadian Union of Postal Workers 1973 CanLII 183 (SCC), [1975] 1 S.C.R. 178, 73 CLLC ¶14,190, its involvement is marginal and far from being integral or necessarily incidental to the functioning of the Canadian postal service.

41. For the foregoing reasons the Board finds that Veteran Taxi does not operate "in connection with a federal work, business or undertaking" within the meaning of section 108 of the Canada Labour Code.

42. We turn to consider the second issue, namely whether Veteran Taxi is itself a work or undertaking extending beyond the limits of the province within the meaning of section 92(10)(a) of the B.N.A. Act, or, put differently, whether it is a federal work, undertaking or business within the meaning of section 108 of the Canada Labour Code. Does the respondent's business, taken as a whole, and having regard to the fact that it makes trips across the border into the United States, bring it within federal jurisdiction for the regulation of its labour relations?

43. Veteran Taxi submits that no matter how small its extra-provincial business may be as a percentage of its overall business it must be characterized as a federal undertaking because it crosses the border in the course of its business on a regular basis. Given the similarity of Veteran Taxi s service to that provided by cab companies in the cities and towns of Ontario along the Ottawa and St. Lawrence rivers as well as at and near the border points of the Great Lakes., the respondent's argument has far-reaching consequences for the constitutional regulation of labour relations in much of the taxi industry in this province. The union has voiced its concern that the constitutional jurisdiction over cab companies in the province in respect of employment, including minimum wages and the regulation of labour relations, should not be split between federal and provincial law, varying with a taxi companies' proximity to the borders of the province. It submits that taxi operations by their very nature are essentially local and provincial in nature. It maintains that a local taxi service should not be subject to federal regulation when a numerically insignificant proportion of its business is extra-provincial.

44. The facts bearing on this aspect of the application are not in substantial dispute, but they bear reviewing. Ninety-eight percent of Veteran Taxi's business is conducted entirely in Ontario, in and around the City of Windsor. Some two percent of its trips take it across the border. The respondent's drivers are not required to accept trips to Detroit, and the evidence establishes that approximately half of them do not.

45. Any service to Detroit provided by Veteran Taxi is on a demand basis. In other words, with the possible exception of the railway mail transfer, none of the respondent's trips to Detroit are on a regular basis analogous to a bus schedule. Veteran Taxi's Airline Limousine will not go to Detroit if no airport passenger presents himself and requests that service. There are no regularly scheduled limousine trips. Similarly the two limousines connecting to the Amtrack Station in Detroit will not go there unless a passenger disembarking from a train so requests. The evidence establishes that it is not uncommon for there to be no takers for either the airport or the railway limousine to Detroit. The respondent's limousine service is in reality not qualitatively different from its general dispatch service to the public: it is another means, though obviously more advantageous than the yellow pages, of being available.

46. The airport limousine service does not tour the downtown Detroit hotels to collect passengers for transportation to the Windsor Airport the way it does in Windsor. Similarly, on those occasions when a passenger does ask the railway station limousine to take him to a destination in Detroit, be it the Amtrack station, a hotel, or any other destination, it does not collect passengers for the return trip. On the whole, therefore, Veteran Taxi does not operate in any way analogous to a two-way international carrier. Its trips across the border are not on a timetable and it has no return passenger service, save the pick up of occasional passengers at the Detroit tunnel waiting room. And, while its Chrysler Account trips are generally performed for the same commercial clients, they too are on an ad hoc, demand basis.

47. It is convenient at this point to consider whether the provincial and extra-provincial components of Veteran's taxi's business are severable. When the extra-provincial portion of a employer's business is functionally separate from its intra-provincial activity the labour relations of the intra-provincial business may fall separately within provincial jurisdiction. (C.P.R. v. The Attorney General of British Columbia, 1949 CanLII 278 (UK JCPC), [1950] 1 D.L.R. 721 (J.C.P.C.). The respondent submits that the extra-provincial and intra-provincial activities of Veteran Taxi are integrated and that, realistically, there can be no severance of these two aspects of its business for industrial relations purposes.

48. The evidence pertinent to this issue establishes that a driver working for Veteran Taxi will make 140 to 150 trips in a normal week. One or two of those will involve a request for service to Detroit. A driver may collect a Detroit passenger at the airport, at the railway station, or at a home or business through the company's telephone dispatch service. He might also obtain a Detroit fare from a passenger off the street of he may be sent to Detroit on a Chrysler Account call. Apart, therefore, from the fact that some drivers refuse to go to Detroit at all, there is no ready line of demarcation between employees who work on extra-provincial runs and those who do not. While it is true that the same limousines service the airport and railway station on a regular basis, for practical purposes the drivers of those vehicles are in no different position than any other. If any of the respondent's drivers go to Detroit they do so on a irregular and casual basis depending entirely on customers' requests. Given that reality, for the reasons expressed by Rand J. in the Eastern Stevedoring case and reiterated by Beetz J. in the Montcalm Construction case, it would be impractical and highly undesirable to fragment the respondent's employees for the purposes of regulating their employment relations. The Board agrees with the respondent that the business of Veteran Taxi must, for labour relations purposes, be characterized as a single enterprise with fully integrated intra-provincial and extra-provincial services. Where the undertaking is integrated, as we find this one to be, there can be no justification for divided jurisdiction. The labour relations of the employees concerned must be regulated either by the province or by the federal government in their entirety (see A. G. Ontario v. Winner, supra, per Lord Porter, 1954 CanLII 289 (UK JCPC), [1954] 4 D.L.R. 657 at 679).

49. The constitutional jurisdiction of a provincial authority over an employer in­volved in inter-provincial or international carriage has been the subject of a number of court decisions: (A. G. Ontario v. Winner, supra; Re Tank Truck Transport Ltd., 1960 CanLII 120 (ON HCJ), [1960] O.R. 497; 25 D.L.R. (2d) 161 (H.Ct.); Sub nom. R .v. The Toronto Magistrates, Ex.p. Tank Truck Transport Ltd.; Affirmed on appeal, 1963 CanLII 46 (SCC), [1963] 1 O.R. 272; 36 D.L.R. (2d) 636, (C.A.); R.v. Cooksville Magistrates Court, Ex.p. Liquid Cargo Lines Ltd;.; 1964 CanLII 162 (ON HCJ), [1965] 1 O.R. 84; 46 D.L.R. (2d) 700, (H. Ct.); Regina v. Manitoba Labour Board ex parte Invictus Ltd., (1968), 1967 CanLII 606 (MB QB), 65 D.L.R. (2d) 517 (Q.B.) and Pacific Produce Delivery v. Labour Relations Board of B.C., 1974 CanLII 1106 (BC CA), [1974] 3 W.W.R. 389 (B.C. Court of Appeal)).

50. If Veteran Taxi is a federal work or undertaking within the meaning of section 92(10)(a) of the B.N.A. Act it must be so because its service extends beyond the limits of the province. The Winner case, supra, is the most authoritative statement of the courts on the principles to be applied in characterizing inter-connecting undertakings. In that case Winner's company ran a bus service between Massachusetts and Nova Scotia. His buses passed through New Brunswick, but the New Brunswick license by which he was regulated did not allow Winner to take on or deposit passengers within the province. Winner did, and an injunction was sought by a competitor to prevent Winner from violating his license. That raised the issue of whether the Province of New Brunswick had constitutional authority to issue a license covering Winner in that situation. The Judicial Committee of the Privy Council concluded that it did not. While that decision has been criticized as being unresponsive to the realities of Canadian transportation (see e.g. Whyte and Lederman, Canadian Constitutional Law (Toronto, 1975) at 492), it established the tests that have been applied by the courts in determining whether a transportation business is a connecting undertaking.

51. The Privy Council rejected the conclusion of the Supreme Court of Canada that Winner's business had an incidental intra-provincial component which could be lawfully regulated by the Province of New Brunswick. The Judicial Committee viewed Winner's business as a single, indivisible enterprise which must be seen as an inter-connecting activity in its entirety. In dealing with the problem of characterization, Lord Porter, for the Committee, addressed his mind to the possibility that a carrier might attempt, fraudulently, to put himself out of provincial jurisdiction by incorporating a short run over the border into his business as a subterfuge. There is no suggestion of any fraud in the case before this Board. Bearing in mind however that a judicial decision, and especially an observation made obiter, should not be read as narrowly as a statute, it is worth recalling the following passage of Lord Porter (1954 CanLII 289 (UK JCPC), [1954] 4 D.L.R. 657 at 680):

"Just as the question whether there is an inter-connecting undertaking is one depending on all the circumstances of the case, so the question whether it is a camouflaged local undertaking masquerading as an interconnecting one, must also depend on the facts of each case and on the determination of what is the pith and substance of an Act or Regulation.'"

The union submits that in this case Veteran Taxi is attempting to exaggerate a few threads of extra-provincial activity into an all encompassing federal cloak that hides and distorts its true identity as an essentially provincial activity.

52. In the trucking industry the courts have had occasion to consider what degree of extra-provincial activity will bring a carrier's business under federal jurisdiction. In Re Rank Truck Transport Ltd. 1963 CanLII 46 (SCC), [1963] 1 O.R. 272; 36 D.L.R. (2d) 636 (H. Ct.) a long distance trucking firm transported goods within Ontario, between Ontario and Quebec and into the United States. Approximately six percent of its total business consisted of the carriage of goods outside the province. The court found that the industrial relations of Tank Truck Transport Ltd. were outside the jurisdiction of the province by virtue of the inter-connecting nature of its business. In so concluding the court specifically rejected the argument that reference could be had to the relative percentages of intra-provincial and extra-provincial traffic to characterize the trucking business as provincial or federal for labour relations purposes. Following the approach taken in the Winner case , the court found that the employer's transportation activity was one and indivisible, and concluded that if any part of its business is extra-provincial the legislative jurisdiction of the province is ousted. In so concluding, however, MacLennan, J. made the following observation:

“... not every undertaking capable of connecting provinces or capable of extending beyond the limits of a province does so in fact. The words 'connecting' and 'extending' in section 92(10)(a) must be given some significance. For example, a trucking company taking goods or passengers occasionally and at irregular intervals from one province to another could hardly be said to be an undertaking falling within the exception in section 92(10)(a)."

Those remarks are obviously obiter. But while the court did not have before it the facts before us in this application, nor the benefit of the judgment of the Supreme Court of Canada in Montcalm Construction Ltd., supra, it clearly entertained the possibility that different considerations apply to a local taxicab company whose business provides services across a provincial boundary on a casual basis. Reading that part of MacLennan, J's decision, together with the decision of the Supreme Court of Canada in Montcalm the Board must ask itself, viewing the respondent's business as a whole, whether its extra-provincial trips are merely incidental and ancillary to its main enterprise as a municipal taxi company. In determining whether Veteran Taxi is a federal undertaking this board must have regard to the realities of the case, bearing in mind the test set out by the Supreme Court of Canada in the Montcalm Construction case and, in particular, the following passage from the judgment of Beetz, J:

"The question whether an undertaking, service or business is a federal one, depends on the nature of its operation; Pigeon, J. in Canada Labour Relations Board, Public Service Alliance of Canada v. City of Yellowknife, 1977 CanLII 230 (SCC), [1977] 2 S.C.R. 729; 77 CLLC ¶14,073, at S.C.R. 736. But, in order to determine the nature of the operation, one must look at the normal or habitual activities of the business as those of 'a going concern', (Martland, J. in the Bell Telephone Minimum Wage case at p. 772) without regard for exceptional or casual factors; otherwise, the constitution could not be applied with any degree of continuity and regularity; Agence Maritime Inc. v. Counseil Canadien des Relations Ouvrires, 1969 CanLII 109 (CSC), [1969] S.C.R. 851 (the Agence Maritime case); the Letter Carriers' case.

53. That is the approach which was taken by the Manitoba Court of Queen's Bench in Invictus Ltd. v. Manitoba Labour Board, (1967), 1967 CanLII 606 (MB QB), 62 W.W.R. 150, 65 D.L.R. (2d) 517. In that case a company was in the business of transporting general freight and horses within Manitoba. It also held a federal carrier's license and carried on extra-provincial business in response to requests, with profits from that aspect of its business amounting to some five-and-a-half percent of its gross profits. A union representing its employees was certified under the Manitoba Labour Relations Act. The employer moved on certiorari to quash the decision on the basis that the Board was without jurisdiction because the company fell within section 92(10)(a) of the B.N.A. Act. Matas, J. recognized that the Tank Truck case represented the first application on the principles expounded in the Winner case to matters of labour relations. He considered as well the decision of the Ontario High Court in Regina v. Cooksville Magistrates Court ex. parte Liquid Cargo Lines Ltd., (1964), 1964 CanLII 162 (ON HCJ), 46 D.L.R. (2d) 700. Both of those decisions found that a carrier's extra-provincial traffic must be "regular and continuous" for its labour relations to fall under federal jurisdiction.

54. The employer in Invictus held the same kind of extra-provincial transport license as Veteran Taxi does in this case. On that aspect of the evidence the Court made the following comment, with which we agree:

"In my opinion this license in itself would not constitute the applicant an irter-provincial carrier within the meaning of the relevant legislation. It is not what a company is authorized to do but what it actually does which will govern the determination of the jurisdiction under which it falls."

In Invictus the extra-provincial business was, in the words of the Court, "casual". Trips outside Manitoba were undertaken in response to requests and the company always held itself out to the public as being available for such trips. The Court then went on to consider whether these facts established an inter-connecting business on a "regular and continuous" basis within the meaning of the Tank Truck case:

"To consider the applicant's extra-provincial business as 'regular and continuous' would be stretching the meaning of those words unreasonably. In constitutional cases no less than in other cases coming before the courts, it is necessary that the realities of the situation be assessed. The operations of the applicant, when examined from a practical aspect, are in pith and substance provincial in character. The applicant's extra-provincial transport of horses is incidental to what is essentially and basically and intra-provincial business.

The Court concluded that the company's extra-provincial traffic did not constitute an extending or connecting link such as contemplated by section 92(10)(a) of the B.N.A. Act, and found that its business fell within the jurisdiction of provincial labour relations legislation.

55. The foregoing cases establish the principles that the Board must apply to the facts in this case. The respondent submits that the decisions of the Courts in Tank Truck and Invictus cannot be reconciled, and that the Board must narrowly apply the reasoning in Tank Truck. According to the respondent we are bound to conclude that, by virtue of the two percent of the respondent's extra-provincial taxi business, it must be characterized as an extending or connecting link within the meaning of section 92(10)(a) of the B.N.A. Act and be found to be outside the Board's jurisdiction.

56. We Co not agree that the Tank Truck and Invictus cases are necessarily in conflict as they apply to the case before us. The Court in Tank Truck made specific reference to taxicab companies. In an obiter comment it indicated that a "taxicab company taking goods or passengers occasionally and at irregular intervals from one province to another could hardly be said to be an undertaking falling within the exception in section 92(10)(a)". Given the irregular and occasional nature of the respondent's trips out of Ontario, the Board is persuaded that the Court may well have been contemplating just such a business as the respondent.

57. Certainly, applying the words of the Court, if Veteran Taxi is viewed from the standpoint of the average employee, extra-provincial trips are manifestly occasional and irregular. On the evidence before the Board a driver will carry some fifty passengers in a row locally in Windsor before he is asked to make a trip to Detroit. He may then have another fifty Windsor fares before a similar request is made. Or he may go through a hundred Windsor customers and then receive three requests for Detroit all in a row. Assuming he is among the fifty percent of the drivers who agree to drive to Detroit, over a two-week period he might have four requests for Detroit in one week and none at all in the next. But during the same two weeks he will have had some three hundred trips in the City of Windsor. Surely his extra-provincial work must be regarded as coming occasionally and at irregular intervals, within the meaning of the obiter passage in the Tank Truck case.

58. Counsel for Veteran Taxi submits that the Board should give considerable weight to the absolute number of border crossings made by its fleet of 132 cabs, rather than empha­size percentages. In our view it is not helpful to focus on the absolute number of border crossing that Veteran Taxi's fleet of cabs might make in a given day or week. That kind of analysis would lead to a distorted and uneven application of the constitutional law as between large companies such as the respondent's and small cab companies in the same locality. If the respondent crosses over to Detroit thirty times a day, is it to be federally regulated while a much smaller company, with two crossings a week — but having the same percentage of Detroit business — is to be provincially regulated? If that were so different minimum wages and labour codes would apply to large and small taxi companies. Surely a result as disintegrating as that could not have been contemplated or intended by the draftsmen of Confederation. In our view percentages can be the only consistent bench-mark in assessing the true nature of any business with a connecting link.

59. Moreover, we are satisfied that the Court in Tank Truck did not intend the words ''regular and continuous'' to be mechanically and rigidly interpreted without regard to the realities of each particular case. We are fortified in that view by the following example. Suppose a small, six-cab taxi company operating in the City of Ottawa. It makes two hundred passenger trips per day. All of its daily trips are on the Ontario side of the Ottawa River, save one. By a pre-arranged contact it makes one trip daily to the City of Hull to collect and transport a student to a school in the City of Ottawa. This it does on a "continuous" and "regular" basis. Is it to be supposed that this one daily trip must qualify that taxi business as a federal undertaking, whose industrial relations fall to be regulated along with those of railways and airlines? And if the Hull contract is cancelled, will the Ottawa cab company then revert to the provincial sphere and be governed by different minimum wage laws and a different Labour Relations Act? Whatever may be the law for the trucking industry or buses, we do not believe that this is what the Court would have contemplated by the choice of its words in its obiter passage on taxicabs in the Tank Truck case.

60. Even if we are wrong in this regard, and there is some irreconcilable conflict between the approach taken in Tank Truck and the approach taken in Invictus , we feel that we are bound, after the decision of the Supreme Court of Canada in Montcalm Construction Ltd. to follow the approach enunciated by Beetz, J. for the majority and clearly taken by the Court in Invictus. The Board must, to use the words of the Supreme Court of Canada, look to the nature of the respondent's operations. It must look at the normal, or habitual, activities of Veteran Taxi viewed as a "going concern" and avoid any distorted conclusion that would flow from giving undue weight and regard to the exceptional factor of the runs to Detroit that amount to two percent of its business, that is provincial in character.

61. In summary, by all of the above standards the business of Veteran Taxi is, in pith and substance, a local business. It is dedicated to the transportation of passengers in the City of Windsor and its vicinity. The fact that its employees may carry passengers of light freight across the adjacent border on an occasional and casual basis does not alter its basic character as a local taxi company. Its marginal involvement with extra-provincial traffic is purely incidental and ancillary to its main function as a municipal service. When the realities of the situation are assessed and the business of Veteran Taxi is examined in an unexaggerated and practical way, the whole of its operation is, in pith and substance, provincial in character. Any service it provides beyond the provincial boundary is incidental to that essential character. To conclude otherwise is to distort the reality.

62. For the foregoing reasons the Board finds that Veteran Taxi is not a federal undertaking within the meaning of section 92(10)(a) of the B.N.A. Act or section 108 of the Canada Labour Code. This Board therefore has jurisdiction to entertain this application.

63. The l3oard finds that the applicant is a trade union within the meaning of section 1(1)(n) of The Labour Relations Act.

64. The Board further finds that all dispatchers and telephone order takers of the respondent in Windsor, save and except supervisors, persons above the rank of supervisor and persons employed for not more than 24 hours per week, constitute a unit of employees of the respondent appropriate for collective bargaining.

65. The union submits that that by virtue of certain breaches of the Act which it alleges the respondent has committed it should be granted certification pursuant to section 7a of the Act. That section provides as follows:

"Where an employer or employers' organization contravenes this Act so that the true wishes of the employees of the employer or of a member of the employers' organization are not likely to be ascertained, and, in the opinion of the Board, a trade union has membership support adequate for the purposes of collective bargaining in a bargaining unit found by the Board pursuant to section 6 to be appropriate for collective bargaining, the Board may, on the application of the trade union, certify the trade union as the bargaining agent of the employees in the bargaining unit."

66. The list of allegations against the respondent employer is long. Some of the allegations relate to events which occurred after the terminal date of this application. The terminal date is the last lay on which the union may file evidence of its membership support for the purpose of this application. Events after the terminal date cannot, therefore, be looked to as acts of the employer that chilled the union's organizing campaign. They are, however, relevant to the Board's consideration of whether the employees have been deprived of the ability to express their wishes in a representation vote that might be conducted after any breaches of the Act occurred.

67. At the Board's second hearing, after it gave its ruling on the constitutional issue, and after the parties indicated that they did not object to the substitution of one member of the Board, the respondent indicated that it intended to challenge the Board's jurisdiction in the courts. On that basis it requested an adjournment of this application, as well as the two other applications for certification and the unfair labour practice complaints which the Board was hearing concurrently. The Board concluded that the possibility of an indefinite postponement of the employees' rights during the course of judicial review did not justify suspending the Board's proceedings. It therefore declined the request for an adjournment. (R v. O.L.R.B., ex parte Nick Masney Hotels Ltd., 1970 CanLII 478 (ON CA), [1970] 3 O.R. 461 (C.A.) per Laskin, J.A. at 465; Re Cedarvale Tree Services Ltd.,1971 CanLII 341 (ON CA), [1971] 3 O.R. 832 (C.A.) per Arnup, J.A. at 841.)

68. Following the Board's denial of the adjournment, counsel for the respondent objected to the Board's ruling and informed the Board that Veteran Taxi was then withdrawing from the proceedings.

69. The respondent having withdrawn, there was no reply to the section 79 allegations filed against it. The allegations in the section 79 complaints are the basis of the union's section 7a application. Without detailing the extensive particularity of the allegations, they maintain that the employer engaged in a course of conduct which, if proved, would be in breach of sections 56, 58 and 61 of The Labour Relations Act and which, in the Board's opinion, would be such that the true wishes of the employees would not likely be ascertained.

70. When a complaint is filed under section 79, subsection 79(4a) of that section applies. It provides:

"On an inquiry by the Board into a complaint under subsection 4 that a person has been refused employment, discharged, discriminated against, threatened, coerced, intimidated or otherwise dealt with contrary to this Act as to his employment, opportunity for employment or conditions of employment, the burden of proof that any employer or employers' organization did not act contrary to this Act lies upon the employer or employers' organization."

71. When an employer against whom an allegation is made under section 79 of the Act fails to adduce any evidence to rebut the charges against it, given that the burden of proof is upon the employer, those charges must be taken as proved. (I. C. B. Warehousing Division of Alan-Anson, [1976] OLRB Rep. Oct. 621). The complainant must, of course, adduce evidence respecting the nature and extent of damages suffered if the Board is to make any order as to remedy, particularly in relation to compensation. That was done in the section 79 complaints against the respondent.

72. The breaches of the Act by the respondent were therefore established for the purposes of this application. The Board is satisfied that in light of the respondent's conduct as alleged the true wishes of the employees are not likely to be ascertained. Given that the applicant union has membership support adequate for the purposes of collective bargaining, the Board stated at the hearing that it was granting interim certification to the applicant in respect of the bargaining unit pursuant to section 7a of the Act.

73. The Board's disposition of the section 7a application rendered academic any inquiry into the statement of objection filed by the group of employees represented by Mr. Heeney and Mr. Caverhill. The petition, even if it were proved to be voluntary, would not numerically reduce the union's membership strength by numbers that would alter the Board's view of the extent of support the applicant enjoys for the purposes of its certification under section 7a.

74. Mr. Heeney and Mr. Caverhill still have an interest in the proceedings. They and the union are disagreed as to their employment status as well as that of others who may or may not be included in the bargaining unit. The Board advised Mr. Heeney and Mr. Caverhill that they were entitled to retain counsel and to fully participate in the proceedings respecting the only issue outstanding — the final composition of the bargaining unit. The Registrar is therefore instructed to give them notice of all future proceedings of the Board in respect of this application.

75. Mr. N. Wilson and Mr. A. Vigar, Labour Relations Officers are hereby appointed to inquire and report back to the Board on the list and composition of the bargaining unit herein.

DECISION OF BOARD MEMBER W. G. DONNELLY:

1. While I would agree with the majority on the disposition of the section 7a application, I cannot agree with the decision of my colleagues on the Board's constitutional jurisdiction to entertain this application. I must dissent from the decision of the majority of the Board on the following grounds:

a) The number of taxis dispatched to Detroit was variously described as being from 1 to 2% of the daily trips booked through the dispatchers to up to a maximum of 5% by the witnesses called. The main witness for the applicant, Mr. A. D. Pilecki, testified that his estimate of 1 to 2% of such calls was based on the number of customers who identified trans‑border points as their destinations. Not all callers volunteered such information and, of course, cabs can be "flagged" on the streets and ordered to Detroit. His estimate therefore must be looked on as being conservative.

However, it is obvious that the trans-border taxi trips do not represent a large percentage of the total daily taxi runs but in absolute terms, applying 1 1/2% to the estimated 3,000 to 3,500 daily runs, the figure of 45 to 52 such runs per day, which had been so identified with the despatchers, is obtained.

b) Other Veteran Cab services, the nature of which are described in various paragraphs of the majority decision - I will not burden this text by repeating them here - are extensive obligations assumed by the cab company to provide trans-border service on a regular, daily basis.

2. In addition to making some 50 or more runs daily to Detroit via its “phone-in” service, Veteran Cab provides, by contract, broad passenger and mail services from the Airport and Railway Station to Detroit and when one adds to this the so-called "Chrysler Contract", which the witness, Mr. Pilecki, stated amounted to 2 to 3 trips per day, the breadth and depth of its total obligations to provide international service, on a daily basis, become apparent.

3. I have therefore concluded that the view of the majority of the Board that the Veteran Cab Company is a simple taxi company servicing the City of Windsor, which occasionally carries passengers and mail across the border, is not tenable in view of all the circumstances. In consequence, I submit that this case falls within the ambit of the Canada Labour Relations Board and that the Ontario Labour Relations Board lacks jurisdiction.

4. As the Board, by majority decision, assumed jurisdiction and the hearing on the Section 7a application was then concluded ex parte, I concurred in the Board's findings in this instance subject always to my dissent concerning the Board’s constitutional jurisdiction to entertain this complaint.