Ontario Labour Relations Board

[1985] OLRB Rep. August 1228

1484-83-R International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Local 680, Applicant, v. Port Weller Dry Docks, A Division of ULS International Inc., Respondent, v. International Brotherhood of Electrical Workers, Local 303, Intervener #1, v. Hamilton Marine, a Division of ULS International Inc., Intervener #2

BEFORE: R. A. Furness, Vice-Chairman, and Board Members S. Cooke and F. W Murray.

APPEARANCES: B. Fishbein, D. Brown and M. Simons for the applicant; Harvey A. Beresford, Q. C. and R. K. Adamson for the respondent; B. Fishbein, Alex Glen and E. J. Swift for intervener #1; Earle Blackadder, Q. C. and Ian Fielding for intervener #2.

DECISION OF THE BOARD; August 6, 1985

1. The name of the respondent is amended to read: "Port Weller Dry Docks, A Division of ULS International Inc.".

2. The applicant has applied to the Board under section 63 of the Labour Relations Act with respect to its bargaining rights as a result of an alleged sale of a business on an unknown date by Port Weller Dry Docks, A Division of ULS International Inc. ("Port Weller") to Hamilton Marine, a Division of ULS International Inc. ("Hamilton Marine"). It is the position of the applicant that, in the alternative, Port Weller and Hamilton Marine should be treated as constituting one employer for the purposes of the Act in that, at all material times, they were carrying on associated or related activities or businesses under common control or direction within the meaning of section 1(4) of the Act. Intervener #1 intervened and requested relief under both section 63 and section 1(4).

3. Hamilton Marine intervened as intervener #2 and denied that it was engaged in a related or associated activity or business with the respondent and also denied that the respondent and Hamilton Marine are under common control or direction. Hamilton Marine denied that it and the respondent came within the scope and ambit of section 1(4) of the Act. At the hearing, Hamilton Marine denied that there had been a sale of a business from Port Weller to Hamilton Marine. In addition, Hamilton Marine adopted the position that the Board had no jurisdiction to deal with the application on the merits because its natural and usual business, unlike Port Weller, was substantially extra provincial and, as such, fell within the exemption created by section 92(10) of the British North America Act as amended. Hamilton Marine also relied upon section 91(10) and argued that its business or undertaking came under the heading of "Navigation and Shipping".

4. The respondent adopted the position that it had always been treated for labour relations purposes as a company that came within provincial jurisdiction. The respondent denied that there had been a sale of a business to Hamilton Marine and also denied that the respondent and Hamilton Marine were associated or related businesses carried on under common control or direction within the meaning of section 1(4) of the Act. At the hearing, the respondent supported the position of Hamilton Marine that the Board had no jurisdiction to deal with the application on the merits because the business of Hamilton Marine did not fall within the jurisdiction of the Province of Ontario. Initially, the Board heard evidence and argument on whether the Board had jurisdiction to entertain this application.

5. Port Weller has for many years been a party to a collective agreement with the applicant and intervener #1 (referred to in the collective agreement as the "union"). Article 2.1 of the collective agreement states:

2. 1 The company agrees to recognize the Union as the sole collective bargaining agency for all its Employees, save and except Foremen, those above the rank of Foreman, and Assistant Foreman, Clerical and Office Staff, Guards and Plant Protection Employees.

The most recent collective agreement became effective on May 29, 1983, and remains in effect until May 31, 1986. Port Weller has been bound by the collective agreement with respect to a dry dock operation just outside St. Catharines where it carries on the business of the construction and repair of ships. A subsequent operation has been commenced in Port Colborne under the name of Hamilton Marine. Port Weller is a division of ULS International Inc. of Toronto ("ULS"). Hamilton Marine is also a division of ULS and is engaged in running repairs to ships as opposed to shipbuilding. ULS also operates other divisions (not affected by this application) such as Canal Contractors which also operates out of St. Catharines, is engaged in construction work and is a party to collective agreements with various building trade unions, such as the International Brotherhood of Electrical Workers.

6. ULS is a federally-incorporated company and owns twenty-six ships. These ships sail in international waters on the Great Lakes as well as elsewhere. ULS realized that it was spending a considerable amount of money on running repairs, that is to say, repairs which would be performed by repairers who stay on board ship to do the repairs as the ship proceeds from port to port. In this way ships would not be tied up in port and ULS would not be spending between three and four million dollars each year on repairs done by outside companies. Towards the end of 1982, Ian Fielding was working for Port Weller as an assistant repair manager when the idea of starting a second repair company was being discussed. The main operation of Port Weller was to fabricate and build new ships and to repair old ships with some guaranty work. A large part of the industry is the repair service to ships on the Great Lakes. These ships must by government regulation go into dry dock every five years in order to check the sea valves and inspect the condition of the underwater body of the ship. Quite often there will be damage on the bottom of the ship which may or may not be known to the owners. The dry dock survey ascertains the work which is required. On other occasions the owner of a ship will be aware of damage to a ship below the waterline and will put the ship in dry dock to discover the extent of the damage. When a ship is sold before title changes hands, the potential purchaser will put the ship into dry dock in order to do a survey on it. Surveys are also required for safety and insurance purposes. At Port Weller in St. Catharines up to fifty employees or about ten per cent of the work force was engaged in repair work. The remainder of the employees were engaged in the construction and conversion of ships.

7. While repairs may be performed while a ship is in dry dock, it is also possible to carry out running repairs on board a ship while the ship is carrying out its normal business of conveying cargo from one port to another. The benefit of this to a ship owner is that if a ship is stopped for any reason, he is losing an average of $1,000 an hour, based on a 24-hour day. Where a ship is a full-sized, self-loader, the cost of putting a ship in dry dock may amount to as much as $40,000 a day. The need for repairs is particularly evident where a ship is carrying grain. At the point where it picks up the grain, an inspector from the federal government will go aboard and check the ship for cleanliness and any obvious dampness in the ship that will cause damage to the cargo. If an inspector sees any problem and the cargo is damaged in transit, he has the power to tie up the ship en route and he can refuse his certificate for the cargo. Moreover, a separate inspector who acts as the agent for the buyer at the port of destination may also refuse to accept the grain if its condition is not satisfactory. It was for this reason that ULS decided that it would get into the business of providing a service for itself and for any other shipping companies which used the St. Lawrence Seaway and Great Lakes system.

8. The prime aspect of the function of inspection is the concern for the safety of the crew. Certain problems of safety may be anticipated by the officers and crew of the ship and may be attended to as a running repair rather than have a more serious problem develop which would require a period in a dry dock. Port Weller had never engaged previously in running repairs and such work is now exclusively the work of Hamilton Marine. Hamilton Marine is one of twelve companies based in Canada which perform running repairs on the Great Lakes and St. Lawrence Seaway system. Of the eleven others, three are located in Port Colborne, three are located in Montreal, two are located in Sarnia, one is located in Toronto, one is located in Windsor, and one is located in St. Catharines. Before the creation of Hamilton Marine, ULS would utilize the services of one of these eleven running repair companies, depending upon the location of a particular ship within the Great Lakes and St. Lawrence Seaway system when a problem arose. ULS does not control any of the eleven other running repair companies previously referred to.

9. ULS has one of the largest shipping fleets in the Great Lakes and owns twenty-six ships of which eight are self-unloaders. Some of these ships are purely captive to the Great Lakes and have certificates which permit them to sail solely within the Great Lakes system. Some have Home Trade I certificates which allow them to trade anywhere along the eastern seaboard of Canada and the United States as far as Mexico. Eight ships fall into this category of which two are self-unloaders. The remaining fifteen ships can operate only within the boundaries of the Great Lakes and St. Lawrence Seaway system. A self-unloader ship is a ship which can come alongside a dock and completely discharge a cargo without any aid from a shore facility. All of the necessary equipment for self-unloading is contained on the ship. Hamilton Marine can and does repair self-unloading equipment.

10. In 1982, ULS owned one hundred and fifty-four acres in Port Colborne which was not being used. This property was ideally and strategically located for the purposes envisaged by Hamilton Marine and was available for its use. The factors which led to the formation of Hamilton Marine were the availability of this property, the prospect of preventing money from leaving the ULS group of divisions and companies, the creation of jobs in the area and a new job for Mr. Fielding. Hamilton Marine was placed under "probation" by ULS and was given six months to prove its feasibility in the competitive work of performing running repairs and operating a dry dock. In surveying the market, Hamilton Marine considered that its potential for obtaining work lay not only within the Great Lakes and St. Lawrence Seaway system, but also along the eastern seaboard of North America and the Gulf of Mexico. Hamilton Marine calculated that if it could expand into these areas, then, with an established and reputable name, it could expand into still other areas.

11. Hamilton Marine first commenced operations and hired employees in January of 1983 with Mr. Fielding as general manager. Its total sales from April 1, 1983, to March 31, 1984, amounted to 1.38 million dollars in its first fiscal year for running repairs and between $150,000 and $200,000 for winter work in Ontario. Subsequently, the fiscal year was changed from April to March, to January to December. About twenty-one per cent of its work is done along the eastern seaboard and in the Gulf of Mexico. Hamilton Marine presently employs eighteen employees and has employed as many as forty-eight. Each employee bears the title of repairman and has multi-faceted talents and trade skills which are necessary for the work of Hamilton Marine. The work includes plate expansions, welding, burning, shipwrighting, pipefitting, carpentry work, sheet metal work, and engine fitting work. Not everyone employed by Hamilton Marine has each skill referred to, but most of them have these skills and all of them have a very good blend of all of the skills. Each employee is required to have an aptitude for being able to supervise because Hamilton Marine does not have standard supervision on its jobs. An employee may be a foreman on one job and be one of the squad the next day. An employee has to order the material for the job and he may have to hire additional labour to do the job, for example, in Quebec City or New Orleans. He has to organize the required work around the normal operations of the ship so that there will be as little disruption as possible to the general working of the ship. In addition to Mr. Fielding, there is one superintendent and one person who is a working foreman. While the summer represents the time when the maximum work force is usually employed, the work of Hamilton Marine is very much a question of demand and supply.

12. Hamilton Marine has performed work on ships bound for Quebec City, Montreal, Thunder Bay, Indiana Harbour, New Orleans, Savannah, Philadelphia, St. John's, Long Harbour and St. George's in Newfoundland. The men are usually flown to a port, board the ship, and stay on board ship until they have completed their work. After disembarking, they either return to Port Colborne or proceed to the next job for Hamilton Marine. On occasions a job is extremely long and calls for extended work which involves the rotation of crews on the ship involved. One such job, for example, started in April and ran until October of the same year. The ship in question was trading between Tampa, Florida, and Long Harbour, Newfoundland, and various points along the way.

13. Hamilton Marine provides work on a 24-hour a day, 365 days a year basis wherever it is required. The nature of the work may require an employee to be away from home for an extended period of time. The need for flexibility, short notice and extended absences from home is explained to the employees before they commence their employment with Hamilton Marine. Hamilton Marine has hired all of its regular employees in Ontario. Its employees are dispatched from Port Colborne. Its offices, yard, work shop and warehouse facilities are all located at Port Colborne. Crews may consist of up to five employees. It is not possible to assign specific employees to do work solely within Ontario and to have other employees perform work outside Ontario.

14. The work of Hamilton Marine was originally carried out through the vehicle of Hamilton Marine and Electric Limited. Once the venture had established itself as viable and successful, the name was changed to Hamilton Marine, a Division of ULS International Inc. The earlier name was used because of existing invoices, ledgers, paperwork and bank accounts. Hamilton Marine purchased assets from Hamilton Marine Electric Limited and leased the property at Port Colborne from ULS. Mr. Fielding, with a technical background, had not previously run a company. A vice-president of ULS set up everything that could be set up by Port Weller, including a separate bank account and the transfer of money into these accounts and arranged for the sale to Hamilton Marine of the expertise of the people within Port Weller. Certain equipment, materials and accounting services were sold to Hamilton Marine by Port Weller. Hamilton Marine was subsequently invoiced for the various services it had obtained from ULS and Port Weller. Mr. Fielding hired an accountant and a lawyer for Hamilton Marine.

15. Out of the total sales figures from April 1, 1983, to March 31, 1984, of approximately 1.38 million dollars, approximately $265,000 was performed entirely outside the limits of the boundary of the Province of Ontario, together with amounts of approximately $50,000 and $26,000, on two specific Canadian ships which were also out of the Province of Ontario, for a total of approximately $341,000. Therefore, approximately a quarter of the work performed by Hamilton Marine in running repairs was performed entirely outside the boundaries of the Province of Ontario. Moreover, work done on sailings within the Great Lakes from ports in Ontario to ports in other Canadian provinces or the United States equalled approximately $350,000. Therefore, the total of the running repairs performed out of the Province of Ontario approaches fifty per cent of the total figure of 1.38 million dollars. Hamilton Marine also has work which originates and ends in Ontario but which crosses into American waters in the Great Lakes. The remaining fifty per cent of the work performed by Hamilton Marine is work performed within the boundaries of the Province of Ontario.

16. Hamilton Marine looks to future expansion along the eastern seaboard and in the Gulf of Mexico. It has also entered into a contract and has started work for a ship management company based in Hong Kong. Hamilton Marine holds itself out as willing to perform and does perform running repairs not only for ULS but for any owner at any place.

17. As part of its work force, Hamilton Marine has trained some of its employees as commercial divers. There are two reasons for this course of activity. Firstly, usually divers are not trained ship builders and when divers usually go under the ship and come up with information, it is difficult for the diver to express the technical information to the technical work force. When Hamilton Marine uses its own trained personnel, they are able to relate exactly what they have seen under the waterline. Secondly, it has been the experience of Hamilton Marine that it is awarded the subsequent work when its own divers are able to describe the nature of the work which is required. Hamilton Marine is also negotiating with a stone quarry in Nova Scotia to build and install a dockloading facility with a value of approximately one million dollars. In addition, representatives of Hamilton Marine attended a trade show in Chicago and became interested in a cargo handling system and has been promised it will be given the distribution rights in Canada. Such a loading system could be installed on ships throughout Canada.

18. The whole purpose of performing running repairs is to keep the ship working on its tasks and to keep it out of dry dock. However, running repairs may be made in dry dock. At some point repairs are so serious that a ship has to enter a dry dock. This is particularly true in matters of safety. Hamilton Marine performs repairs in its dry dock. Hamilton Marine has installed five docks outside the Province of Ontario. It has also installed a number of docks within Ontario. A very small proportion of the work of Hamilton Marine is installing furniture on ships and in providing provisions and materials for ships as they pass through the Great Lakes. Hamilton Marine has also fabricated and provided gangplanks for ships. On occasions diesel fuel may be supplied to a ship - or Hamilton Marine will provide miscellaneous services, such as transporting crews, providing fire extinguishers and any lawful activity which is profitable to the company. Out of the total of 1.38 million dollars spent during the fiscal year previously referred to, about $400,000 of that amount is not work which may be classified as running repairs. The winter work which is performed in Ontario by Hamilton Marine amounts to an additional $150,000 to $200,000 in the last fiscal year.

19. It was the position of the respondent and intervener #2 that the labour relations of the business operations of Hamilton Marine by virtue of the provisions of sections 9 1(10) and 92(10) of the Constitution Act, 1982, are governed by the Labour Code, Canada R.S.C. 1970 CL-i. Sections 91(10) and 92(10) provide as follows:

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 hereinafter enumerated; that is to say,

92. Navigation and Shipping.

93. In each Province the Legislator may exclusively make Laws in relation to Matters coming within the Classes of Subject next hereinafter enumerated; that is to say,

94. Local Works and Understandings 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.

Section 108(1) provides as follows:

108(1) This Division 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 employers' organizations composed of such employees or employers.

The applicant and intervener #1 have adopted the position that the business and undertaking of Hamilton Marine is neither in relation to navigation and shipping nor does it extend beyond the limits of Ontario.

20. The division of legislative powers between the Legislatures of the provinces and Parliament have recently been reviewed and analyzed in the Federal Court by Jackett, C .J. in Canadian Air Line Employees' Association v. Wardair Canada (1975) Ltd. 1979 CanLII 4076 (FCA), [1979] 2 F.C. 91. at page 95, Jackett, C.J. stated:

Generally speaking, labour laws, i.e., laws regulating the relations between an employer and his employees, fall within the legislative powers of the provincial legislatures. Where, however, legislative power in relation to a work, undertaking or business has been vested in Parliament, such power usually includes the authority to legislate with reference to the relations between the operator of the work, undertaking or business and the persons employed by him in the operation thereof.

Most of the decisions cited relate to cases where the question was whether or not the work, undertaking or business on which the employees in question were employed was a work, undertaking or business in relation to which Parliament could make a labour law. Here the problem is different.

Where there is a work, undertaking or business in relation to which Parliament has legislative authority in the field of labour relations, a problem arises as to where the line is to be drawn between areas in respect of which Parliament can so legislate and other areas in respect of which labour legislation falls in the provincial domain. Certain of the cases where this type of problem arises, may be classified as follows:

(a) where an essential component of operating a federal work, undertaking or business is carried on by a person other than the principal operator thereof under some business arrangement for co-ordinating their activities,

(b) where an essential component of operating a federal work or undertaking is carried on at a location physically remote from the work or undertaking,

(c) where fringe operations, reasonably incidental to a federal work, undertaking or business are carried on by the operator thereof as an integral part of the operation thereof, even though they are not essential to its operation,

(d) where a person other than the operator of a federal work, undertaking or business carries on activities that are not essential to the operation thereof but could be carried on by the operator thereof as reasonably incidental to the operation of that work, undertaking or business.

These different classes of problem call for further comment.

With reference to Class (a), when the essentials of operating a work, undertaking or business within the federal legislation field are carried on in part by one operator and in part by another, the employees of both fall within the federal legislation field. This can be deduced from the Stevedoring Reference to the Supreme Court of Canada.

The problem in Class (b) is like the problem in Class (a). Where part of the essentials of operating a federal work or undertaking are carried on at a place physically remote from the work or undertaking, the employees of such a remote place nevertheless fall within the federal field. This is involved in what was decided by this Court last December in the C. S. P. Foods case supra page 23.

A more difficult problem arises in connection with Classes (c) and (d). A particular activity may be reasonably incidental to the operation of a federal work, undertaking or business without being an essential component of such operation. For example, an interprovincial railway may have its own laundry facilities or its own arrangement for preparing food for passengers, or, alternatively, it may send its dirty linen to an outside laundry or buy prepared food. Generally speaking, where such an activity is carried on by the operator of the federal work, undertaking or business as an integral part thereof, it is indeed a part of the operation of the federal work, undertaking or business. Where, however, the operator of the federal work, undertaking or business carries on the operation thereof by paying ordinary local businessmen for performing such services or for supplying such commodities, the business of the person performing the service or preparing the commodities does not thereby automatically become transformed into a business subject to federal regulation. Compare the decision of the Supreme Court of Canada in the Construction Monrcalm case (1979) 1978 CanLII 18 (SCC), 25 N.R. 1, that was delivered last December.

To sum up the reference to Classes (c) and (d), as I understand the law, where something is done as an integral part of the operation of a federal work, undertaking or business and that something is reasonably incidental to such operation, it may be regulated by Parliament as part of the regulation of that work, undertaking or business even though it is not essential to the operation of such a work, undertaking or business; but where such a thing is made the subject of a separate local business or businesses, it cannot be regulated by Parliament merely because, if it were done as an integral part of operating a federal work, undertaking or business, it could, as such, be regulated by Parliament.

21. The positions of the parties that the business operations of Hamilton Marine do or do not fall within the provisions of section 9 1(10) relate to the heading of navigation and shipping. In the case of In the Matter of a Reference as to the validity of the Industrial Relations and Disputes Investigation Act, R. S. C. 1952, C. 125, and as to its Applicability in Respect of Certain Employees of The Eastern Canada Stevedoring Company Limited 1955 CanLII 1 (SCC), [1955] S.C.R. 529, [1955] 3 D.L.R. 721, (the "Eastern Canada Stevedoring" case), the Supreme Court of Canada decided that the Industrial Relations and Disputes Investigation Act, a statute of Parliament, applied in respect of the employees in Toronto of the Eastern Canada Stevedoring Co. Ltd., employed upon or in connection with stevedoring and terminal services consisting exclusively of services rendered in connection with the loading and unloading of ships, pursuant to the contracts with seven shipping companies to handle all loading and unloading of their ships arriving and departing during the season on regular schedules between ports in Canada and ports outside Canada. As Abbott, J. observed in Eastern Canada Stevedoring at page 591:

It seems clear that the loading and unloading of ships (often referred to as stevedoring when done by men who are not members of the ship's crew) is an essential part of the transportation of goods by water. As such, in my opinion, it comes within the exclusive legislative authority of Parliament under head 10 of s.91 of the British North American Act "Navigation and Shipping", which term, as Viscount Haldane said in the Montreal Harbour Commissioners Case 1925 CanLII 325 (UK JCPC), [1926] A. C. 299, at 312, is to be widely construed.

[emphasis added]

22. The review and analysis of Jackett, C.J. in Wardair is helpful in deciding the issue before the Board. The respondent and intervener #2 agree that the work of Hamilton Marine falls within class (a), that is to say, the work of Hamilton Marine is an essential component of operating a federal work or undertaking, shipping and navigation, and is carried on by a person other than the principal operator thereof under some business arrangement for co-ordinating its activities. The applicant and intervener #1 argue that the work of Hamilton Marine falls within class (d), that is to say, the work of Hamilton Marine as a person, other than the operator of a federal work, undertaking or business, consists of carrying on activities that are not essential to the operation thereof and could be carried on by the operator thereof as reasonably incidental to the operation of that work, undertaking or business.

23. The issue to be determined is whether the activities of Hamilton Marine are an essential component of operating a federal work or undertaking or whether its activities are not essential to the operation thereof. The applicant and intervener #1 relied on Tymac Launch Service Ltd. v. Canadian Brotherhood of Railway, Transport and General Workers, Local 400 (1980) 81 CLLC 16,072. In that case, an employer operated a launch service and, as part of expediting the processing of ships through the port of Vancouver, supplied transportation services to ships at anchor. The British Columbia Labour Relations Board held that the employer's business was subject to provincial labour relations legislation. The Board reasoned that although the transportation services to and from the shore were important to ships at anchor, the operations of the employer were at best incidental and not essential to the shipping industry. Shipping could go on at some inconvenience without the employer's operations, but it could go on. The work of Hamilton Marine consists of performing running repairs on ships during the course of their movement within the Great Lakes and St. Lawrence Seaway system, the eastern seaboard of North America and in the Gulf of Mexico. These repairs relate to mechanical, electrical and physical integrity of the ships and their cargoes, as well as to requirements of safety. In addition, Hamilton Marine from time to time operates a dry dock for inspections and major repairs. In the view of the Board, the running repair services provided by Hamilton Marine are more than incidental services and constitute more than a mere convenience. The running repairs provided by Hamilton Marine are essential to the safe and continued operations of the ships which receive these services.

24. The applicant and intervener #1 argued that a distinction could be made between the profitability of a work and undertaking and an activity which was essential to the operation of a work or undertaking. It was argued that Hamilton Marine's services affected the profitability and non-profitability of its customers and that such services were in no way essential to shipping and navigation. The ability of Hamilton Marine to perform running repairs with respect to mechanical, electrical and safety matters affects the profitability of a carrier, because an idle ship is losing its owner between $24,000 and $40,000 a day. However, a ship's ability to operate at all is affected by its physical integrity and the safety of its crew. In addition, the requirements of insurance, certification and the approval of clients' agents in accepting the condition of a ship or accepting the condition of cargo on arrival, such as grain, for example, is affected by the ability of a ship to travel according to its schedules. The function of the ships as a method of transportation is vitally and essentially affected by the activities of Hamilton Marine. Allowing for the wide interpretation usually given to shipping and navigation under head 10 of section 91, the Board finds that Hamilton Marine's operations are an essential component to operating a federal work or undertaking, navigation and shipping, and that the labour relations of its employees are governed not by the Labour Relations Act, but rather by the Labour Code, Canada.

25. The second argument relates to section 92(1 0)(a) and the issue is whether the work or undertaking of Hamilton Marine is a work or undertaking connecting Ontario with any other or others of the Provinces or extending beyond the limits of the Provinces. Approximately fifty per cent of the running repairs performed by Hamilton Marine consists of work which is (a) performed wholly outside Ontario in other provinces, American or international waters or (b) originating or finishing in Ontario but finishing or originating outside Ontario.

26. In the Eastern Canada Stevedoring case, Taschereau, J. expressed the opinion at page 543 that since the ships were operated on regular schedules between parts in Canada and parts outside Canada, the operations of the company was exclusively of federal concern under head 10 of section 92. Fauteaux, J. expressed a similar opinion at page 589. In Re Windsor Airline Limousine Services Ltd. and Ontario Taxi Association 1688 et al. (1980) 30 0. R. (2d) 732, the Divisional Court in the judgment of Reid, J. expressed the view at pages 736 and 737 that in interpreting section 92(l0)(a), the main, ordinary or predominant business of the undertaking is to be considered in determining constitutional jurisdiction. The ordinary or predominant business of Hamilton Marine is the work or undertaking of performing running repairs on ships while they regularly operate either in international waters or as they regularly travel across the boundaries of Ontario. This work or undertaking is carried on throughout the year while the drydock work is essentially confined to the months in winter. To use the language of other cases, for example, A. G. Ontario et al. v. Winner et al.; Winner et al. v. S. M. T. (Eastern) Ltd. et al. 1954 CanLII 289 (UK JCPC), [1954] A. C. 541, the pith and substance of Hamilton Marine's business is a work or undertaking which provides running repairs which connect Ontario with any other or other of the provinces or extending beyond the limits of Ontario. Therefore, by virtue also of the provisions of section 92(l0)(a), the activities of Hamilton Marine are such that the labour relations of its employees are governed not by the Labour Relations Act, but rather by the Labour Code, Canada.

27. For the foregoing reasons, the Board finds that it does not have jurisdiction to entertain this application. Accordingly, this proceeding is terminated.