[1980] OLRB Rep. September 1322
0795-80-R Seafarers' International Union of Canada AFL-CIO-CLC, Applicant, v. Royal Hydrofoil Cruises (Canada) Limited, Respondent, v. Group of Employees, Objectors.
BEFORE: M. G. Mitchnick, Vice-Chairman, and Board Members J. A. Ronson and W. F. Rutherford.
APPEARANCES: Roger Desjardins and William Ross for the applicant; Moira M. Trask, A.F. Atherton and David Kent for the respondent; Cathie Ryle', John McKenzie, Ted Hanlan and Marion Seymour for the objectors.
DECISION OF THE BOARD; September...... 1980
This is an application for certification.
The respondent, Royal Hydrofoil Cruises (Canada) Limited is in the business of transporting passengers by hydrofoil between Toronto and Niagara-on-the-Lake. Both points are located in the province of Ontario. However, the course of the hydrofoil, for nautical reasons, runs for approximately half its length through waters of Lake Ontario actually falling within the territorial boundary of the United States of America. The Board accordingly was required to address itself to the question as to whether or not it had the jurisdiction to entertain the present application, even though the parties themselves were in agreement that the Board had jurisdiction.
By virtue of section 91(10) of The British North America Act, power over the area of "navigation and shipping" is allocated to the Federal government of Canada. This power must be read subject, however, to sections 92(l0)(a) and (b) of the Act, which excludes from provincial control:
"(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 Province, or extending beyond the limits of the Province.
(b) Lines of Steamships between the Province and any British or Foreign Country."
As the Supreme Court of Canada stated in Agence Maritime Inc. v. Canada Labour Relations Board(1969), 1969 CanLII 109 (CSC), 12 D.L.R. (3d) 722. at page 728:
..... regardless of how liberally the powers conferred upon Parliament by section 91(10) of the British North America Act must be construed, according to the judgment of the Privy Council in City of Montreal v. Montreal Harbour Commissioners, 1925 CanLII 325 (UK JCPC), [1926] 1 D.L.R. 840, [1926] 1 W.W.R. 398, [1926] A.C. 299,1 am of the opinion, that in a case of the type presently before us, and, except insofar as the shipping aspect of the matter is concerned, the provisions of section 91(29) and section 92(l0)(a) and (b) are collectively intended to exclude from the jurisdiction of Parliament maritime shipping undertakings whose operations are carried on entirely within the boundaries of a single province.
Reference in the decision was also made to what was then section 53 of the Industrial Relations and Disputes Investigation Act, R.S.C. 1952, c. 152, but the reasoning in the decision does not appear to be dependent upon such reference.
- Accordingly, the question before the Board is whether the respondent's operations can be said to be "carried on entirely within the boundaries of a single province". This is not dissimilar from the actual issue before the Courts in Agence Maritime. There the employer was in the business of transporting cargo by water between various points in the province of Quebec. One of the grounds argued in support of federal jurisdiction was that by travelling on the St. Lawrence river from the City of Quebec to the Town of Gaspe, the employer's ships necessarily crossed the boundaries of the "inland waters of Canada" as that expression is defined in, and for the purposes of the Canada Shipping Act, R.S.C. 1952, c. 29, section 2, subsection 41. It is not clear from either the decision or the statute how one is to describe the waters which lie outside the "inland waters of Canada", but in any event it appears clear that such waters fall outside the territorial limits of the province of Quebec. Notwithstanding this, the Supreme Court of Canada commented, albeit obiter, at p. 728:
... I cannot see how leaving the inland waters to travel from one point to another in the same province constitutes going beyond the boundaries of that province, within the meaning of section 92(10) of the British North America Act .....”
- Similarly, in the present case, the single item in the facts before the Board which raises the suggestion of federal jurisdiction is the happenstance of choosing a route which passes through, in open lake, a portion of the territorial waters of the United States of America. There is, so far as we know, no ordinary contact whatever with American authorities at any state of the trip as a result of this route. Passengers embark at one Ontario port and, after crossing the open water of the lake, disembark at another. The course taken is a matter of choice for the respondent, and it appears to the Board that the constitutional value of the respondent's undertaking, on these facts, must surely depend on more than the precise route the respondent happens to choose at a given point in time. The Board therefore finds nothing in the facts to oust the jurisdiction of the province with respect to the labour relations of the respondent's undertaking. These proceedings will accordingly continue.