Great Lakes Fishermen and Allied Workers' Union v. Omstead Foods Limited, 1986 CanLII 1522

[1986] OLRB Rep. December 1691

1267-86-R; 1269-86-R; 1271-86-R; 1272-86-R; 1274-86-R; 1276-86-R; 1278-86-R; 1279-86-R; 1280-86-R; 1281-86-R; 1282-86-R; 1283-86-R; 1284-86-R; 1286-86-R; 1287-86-R; 1288-86-R; 1290-86-R; 1291-86-R; 1292-86-R; 1293-86-R; 1843-86-R; 1845-86-R Great Lakes Fishermen and Allied Workers' Union, Applicant, v. Omstead Foods Limited, Respondent; Great Lakes Fishermen and Allied Workers' Union, Applicant, v. F. Causarano Fishery Limited, Respondent; Great Lakes Fishermen and Allied Workers' Union, Applicant, v. C.P. Fisheries Ltd., Respondent; Great Lakes Fishermen and Allied Workers' Union, Applicant, v. A. Figliomeni & Sons Limited, Respondent; Great Lakes Fishermen and Allied Workers' Union, Applicant, v. 649857 Ontario Ltd., c.o.b. Jerry Liddle Fishery and 649858 Ontario Inc., c.o.b. Jack Liddle Fishery, Respondents; Great Lakes Fishermen and Allied Workers' Union, Applicant, v. 504578 Ontario Limited, operating as Murray Collard Fisheries, Respondent; Great Lakes Fishermen and Allied Workers' Union, Applicant, v. Murray & Ken Loop Fishery Ltd., Respondent; Great Lakes Fishermen and Allied Workers' Union, Applicant, v. Batista Fisheries Ltd., Respondent; Great Lakes Fishermen and Allied Workers' Union, Applicant, v. Four Brothers Fishing Co. Limited, Respondent; Great Lakes Fishermen and Allied Workers' Union, Applicant, v. Franklin Fishery (Wheatley) Inc., Respondent; Great Lakes Fishermen and Allied Workers' Union, Applicant, v. Remeloso and Sons Fisheries Ltd., Respondent; Great Lakes Fishermen and Allied Workers' Union, Applicant, v. H. Tiessen Fisheries Ltd., Respondent; Great Lakes Fishermen and Allied Workers' Union, Applicant, v. Presteve Foods Limited, Respondent; Great Lakes Fishermen and Allied Workers' Union, Applicant, v. James Taylor Fishery Ltd., Respondent; Great Lakes Fishermen and Allied Workers' Union, Applicant, v. Simmons Fishery Ltd., Respondent; Great Lakes Fishermen and Allied Workers' Union, Applicant, v. 389565 Ontario Ltd. c.o.b. as Jose Cabral Fisheries, Respondent; Great Lakes Fishermen and Allied Workers' Union, Applicant, v. Harvey Getty and Sons Ltd., Respondent; Great Lakes Fishermen and Allied Workers' Union, Applicant, v. Favignana Fishing Co. Limited, Respondent; Great Lakes Fishermen and Allied Workers' Union, Applicant, v. 538391 Ontario Inc., Respondent; Great Lakes Fishermen and Allied Workers' Union, Applicant, v. Family Fishery Company, Respondent; Great Lakes Fishermen and Allied Workers' Union, Applicant, v. Philcox & Elsley Fishery Ltd., Respondent; Great Lakes Fishermen and Allied Workers' Union, Applicant, v. S. Catrini Fisheries Inc., Respondent

BEFORE: Patricia Hughes, Vice-Chairman, and Board Members W. 6. Donnelly and J. Sarra.

APPEARANCES: Laurence C. Arnold and Michael Darnell for the applicant; Rodney M. Godard for A. Figliomeni & Sons Limited (1272-86-R), Four Brothers Fishing Co. Limited (1280-86-R) Favignana Fishing Co. Limited (1291-86-R) and S. Catrini Fisheries Inc. (1845-86-R); Brian P. Nolan for 504578 Ontario Limited, operating as Murray Collard Fisheries (1276-86-R), H. Tiessen Fisheries Ltd. (1283-86-R) and Presteve Foods Limited (1284-86-R); D. S. Jovanovic and Pam Krause for F. Causarano Fishery Limited (1269-86-R), Murray & Ken Loop Fishery Ltd. (1278-86- R), Batista Fisheries Ltd. (1279-86-R), Franklin Fishery (Wheatley) Inc. (1281-86-R), James Taylor Fishery Ltd. (1286-86-R), Simmons Fishery Ltd. (1287-86-R), Harvey Getty & Sons Ltd. (1290- 86-R) and Philcox & Elsley Fishery Ltd. (1843-86-R); R. Gary McLister for C. P. Fisheries Ltd. (1271-86-R), 538391 Ontario Limited (1292-86-R) and Family Fishery Company (1293-86-R).

DECISION OF THE BOARD; December 9, 1986

1. In these certification applications (except File Nos. 1843-86-R and 1845-86-R), the applicant Great Lakes Fishermen and Allied Workers' Union ("the union") requested and the Board directed, by decisions dated September 4, 1986, that pre-hearing representation votes be held. Those votes were held on September 20, 1986 and the Board began hearings into the objections to the votes raised by the respondents herein ("the boat owners" or "the employers") and into matters arising out of the conduct of the votes on October 21, 1986. (The votes in File Nos. 1843-86-R and 1845-86-R were directed by decisions dated October 20, 1986 and October 24, 1986, respectively, and were held on November 5,1986; by the date of hearing of the matters dealt with by these decisions, matters arising out of the conduct of these votes had not, of course, been raised by the parties.) By decision dated November 4,1986, the Board confirmed oral decisions made on October 21, 1986, declining to order a stay of the proceedings before the Board until judicial proceedings by certain respondents with respect to the power of the Board to determine whether it has the constitutional jurisdiction to deal with these applications had been decided, as requested by the respondents herein, and declining to require notification of the Attorneys General of Ontario and Canada of these proceedings, as requested by the applicant.

2. The majority of respondents herein have challenged the Board's jurisdiction to hear these applications on the basis that labour relations in fisheries is a matter within the jurisdiction of Parliament. The respondents in File Nos. 1267-86-R, 1274-86-R, 1282-86-R, 1284-86-R and 1288-86-R, have not challenged the Board's jurisdiction. However, those respondents were advised by the Board that it would entertain any submissions they wished to make on the issue of constitutional jurisdiction. Counsel for the respondents in File Nos. 1267-86-R and 1288-86-R informed the Board that he would not be making submissions. The respondents in File Nos. 1274-86-R and 1282-86-R did not appear before the Board. Counsel for respondents in File Nos. 1269-86-R, 1271- 86-R, I 272-86-R,1 278-86-R, I 279-86-R, 1280-86-R, 1281 -86-R, 1 286-86-R,1 287-86-R, 1 290-86-R, 1291-86-R, 1292-86-R, 1293-86-R, 1843-86-R and 1845-86-R informed the Board that they adopted the position in this matter of counsel in File Nos. 1276-86-R and 1283-86-R, Mr. Brian Nolan; Mr. Nolan later informed the Board that he had been asked to act as agent for the respondent in 1284-86-R on the jurisdictional matter.

3. In addition to the constitutional challenge, the respondents in File Nos. 1272-86-R, 1280-86-R, 1291-86-R and 1845-86-R submitted that crews on fishing boats are excluded from the application of the Labour Relations Act ("the Act") by virtue of section 2(b) of the Act.

4. Argument with respect to the constitutional challenge and evidence and argument with respect to the jurisdictional challenge under section 2(b) of the Act were heard on November 6 and 7,1986. Our rulings on those objections and reasons therefore are set out in this decision.

I. "Fishing" and Section 2(b) of the Act

5. We deal first with the contention that section 2(b) of the Act applies to the employees who are the subject of these applications. Section 2(b) states as follows:

6. This Act does not apply,

(b) to a person employed in agriculture, hunting, or trapping.

Counsel for the respondents in File Nos. 1272-86-R, 1280-86-R, 1291-86-R and 1845-86-R, Mr. Rodney Godard, restricted his argument to the position that fishing crews are employed in hunting or trapping. He called as a witness Mr. Henry Tiessen who operates a commercial fishing business and who explained to the Board the methods used by him and other fisherpersons to catch fish, including the use of gill nets, trap nets and trawls. The union did not call evidence. In argument, Mr. Godard referred to the definitions of "fish" in various "fishery" statutes and the scope of those statutes. For example, the Ontario Fisheries Inspection Act defines "fish" to include mammals or any living thing in the water. He pointed out that the words used in section 2(b) are general in nature; there is no restriction on species or method (the section does not exclude "hunting of animals" or "trapping of fur-bearing animals", for example) and argued that the relevant question is whether the actual process used in fishing falls within the terms of section 2(b). He submitted that since the legislation regulating methods of fishing contemplates that fish may be hunted or trapped, an inference can be drawn that "fishing" can be read into section 2(b) of the Act. Union counsel urged the Board to apply the usual principle of statutory construction that the ordinary meaning of a word is the meaning to be accorded the language of section 2(b). He argued that although methods of fishing may include traps and other such implements, they do refer to means of fishing and not to the activities of trapping or hunting. We accept union counsel's argument that with respect to fishing, "traps" refer to methods of fishing and not to the activity of trapping or hunting. In our view, section 2(b) is clear on its face that it does not include fishing; we further apply the principle that an exception to the operation of legislation should be interpreted narrowly and therefore we find that persons employed in fishing are not excluded from the operation of the Act by section 2(b) of the Act.

II. The Constitutional Challenge

6. We now consider the constitutional challenge to the Board's jurisdiction. The validity of the Ontario Labour Relations Act is not disputed, but only its application to the employees who are the subject of these applications for certification. That challenge is raised under two heads of the Constitution Act, 1867 ("the Constitution Act"): section 91(10) Navigation and Shipping and section 91(12) Sea Coast and Inland Fisheries, with particular emphasis on the latter. Mr. Nolan contends that both those heads of exclusive federal jurisdiction encompass jurisdiction over labour relations between employers and employees in the fishing industry.

A. Provincial and federal jurisdiction over labour relations

7. It is no longer in question that labour relations is a matter coming within provincial jurisdiction under the provincial power over "property and civil rights" under section 92(13) of the Constitution Act: Toronto Electric Commissioners v. Snider, et al, [19251 A.C. 396 (P.C.). The general rule, therefore, is that employment relations are exclusively regulated by the province; however, there is an exception to that general rule, in which case Parliament will enjoy jurisdiction. The relationship between the exclusive power in the provinces to legislate with respect to labour relations and the exceptional power in Parliament to do so, has been expressed in general terms in several cases. For example, in the Reference re the Saskatchewan Minimum Wage Act, 1948 CanLII 36 (SCC), [1948] S.C.R. 248, Mr. Justice Taschereau stated at p. 257 that the question to be determined is the competence to legislate in matters "falling strictly within any of the classes specially enumerated in section 91 of the B.N.A. Act". Kellock, J. (as he then was) stated at p. 556 of the Reference re the Industrial Relations and Disputes Investigation Act, 1955 CanLII 1 (SCC), [1955] S.C.R. 529 (the Stevedoring case), in which section 91(10) of the B.N.A. Act was involved, that "legislative jurisdiction vested in Parliament to make laws in relation to works and undertakings of the character excepted by s. 92(10) [from the provinces] involves jurisdiction to legislate with respect to the persons engaged in the operation of such undertakings and the manner in which and the conditions under which such operations are carried out". In Northern Telecom Ltd. v. Communications Workers of Canada et al (1979), 98 D.L.R. (3d) I (S.C.C.), Mr. Justice Dickson (as he then was) at p.13 articulated the test for determining appropriate jurisdiction in this way: the federal government will have jurisdiction if such jurisdiction is an integral part of the federal primary competence over some single federal subject, but only if federal authority over these matters is an integral element of such federal competence. Thus the regulation of wages and labour relations, "being related to an integral part of the operation of the undertaking are removed from provincial jurisdiction ... if the business is a federal one". Mr. Justice Beetz characterized the test in the following manner in Four B Manufacturing Limited v. United Garment Workers of America and Ontario Labour Relations Board, 1979 CanLII 11 (SCC), [1980] 1 S.C.R. 1031, at p. 1045: the exception, in which Parliament has jurisdiction over labour relations, "comprises, in the main, labour relations in undertakings, services and businesses which, having regard to the functional test of the nature of their operations and their normal activities, can be characterized as federal undertakings, services or businesses". As will be considered below, more specifically phrased tests have been applied to particular fact situations and these, too, indicate the questions which we must ask ourselves in determining whether the Board has jurisdiction to hear these applications.

8. Exclusive federal jurisdiction is established by section 91 of the Constitution Act which states that the legislative authority of Parliament is

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

10. Navigation and Shipping.

11. Sea Coast and Inland Fisheries.

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

There is no contention that employment relations on the fishing boats are federal as coming within the "peace, order, and good government" power. Rather, Mr. Nolan contends that Parliament's exclusive jurisdiction over navigation and shipping and over fisheries includes jurisdiction over labour relations in industries coming within those heads. He argues that there is no restriction in the Constitution with respect to the jurisdiction of the federal government in any matter relating to those heads of power. Beginning with the premise that the fishing boats are a federal undertaking within those two heads of power, the question which the Board must address, counsel submits, is whether the employees involved are doing the work they do in connection with that undertaking. He says that in running the boats and in catching, loading and unloading the fish, the crew are doing work in connection with a federal undertaking; put simply, there would not be fishing without the work performed by the crews, and therefore the work is integral to the federal power over "Fisheries". Counsel for the union, on the other hand, argues that it is necessary to determine whether a fishing business is an integral part of the fisheries power or necessarily incidental to that power, which, he contends, is limited to the preservation and protection of the resource. He begins with the premise that employment relations fall under provincial jurisdiction and that any exception to that general principle must be justified. Mr. Nolan begins with the assertion of a federal head of power which he reads to include jurisdiction over labour relations.

9. Specific reference to the relevant provincial legislation, the Ontario Labour Relations Act, and the relevant federal legislation, the Canada Labour Code, is in order at this point. The Ontario Labour Relations Act is legislation of general application to employment relations in the province and it applies unless explicitly excluded from application (for example, it does not apply to domestics or firefighters as specified in section 2 of the Act). (In that regard, Mr. Godard argued that the omission of "fishing" in section 2(b) of the Ontario Act reflects the provincial legislature's understanding that persons employed in fishing fall within federal jurisdiction for the purpose of labour relations; he adduced no evidence to support that contention and we find it of no assistance with respect to the constitutional challenge.) The Canada Labour Code, on the other hand, because it reflects exceptions to the exclusive provincial jurisdiction over labour relations, specifically enumerates those undertakings, works or businesses to which it applies. The relevant portion of the federal statute is Part V. Section 108(1) states as follows:

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.

Section 2 of the Code defines a "federal work, undertaking or business" as

any work, undertaking or business that is within the legislative authority of the Parliament of Canada, including without restricting the generality of the foregoing:

(a) a work, undertaking or business operated or carried on for or in connection with navigation and shipping, whether inland or maritime, including the operation of ships and transportation by ship anywhere in Canada;

(i) a work, undertaking or business outside the exclusive authority of provincial legislatures;

The omitted portions refer to specified federal undertakings, such as banks, ships connecting a province with any other province or works declared to be for the general advantage of Canada. "Fisheries" is not specifically included by name in that list, but the list is not intended to be exhaustive. "Fisherman" is included in the definition of "dependent contractor" in section 107 of the Canada Code.

10. In our consideration of whether the Ontario Labour Relations Act applies to labour relations between these respondents and their employees, we are guided by the principle enunciated by Chief Justice Ritchie in R. v. Robertson (1882), 1882 CanLII 25 (SCC), 6 S.C.R. 52, in which the Supreme Court of Canada was required to consider the validity of licences granted by the federal government to Robertson to fish a certain portion of the Miramichi River in New Brunswick, when the province had already granted licences to do the same. His Lordship stated that there was no "hard and fast" principle of construction in determining whether legislation is intra vires, but that the closest appropriate one is that the power of the local legislatures in property and civil rights is subject to the power of the Dominion government, but that the Dominion rights

must be exercised so far as may be consistent with the rights of the local legislatures, and therefore the Dominion Parliament would only have the right to interfere with property and civil rights in so far as such interference may be necessary for the purpose of legislating generally and effectually in relation to matters confided to the Parliament of Canada. (p.11 1)

The Chief Justice then adopted the principle set out in The Citizen's lnsurance Co. v. Parsons (1881) 7 App. Cas. 96 that where there is an apparent conflict between the powers granted under different sections of the constitution, "'the language of the two sections must be read together, and that of one interpreted, and, where necessary, modified by that of the other ... [I]t may, in most cases, be found possible to arrive at a reasonable and practical construction of the language in the sections, so as to reconcile the respective powers they contain, and give effect to all of them'" (cited at p. 112). Thus it must be determined "'whether language of a general nature must not by necessary implication or reasonable intendment be modified and limited'" (cited at p. 113). Faced with the need in Robertson to reconcile the power granted the federal Parliament in fisheries and that granted the provincial legislatures under property and civil rights, the Chief Justice identified his task at p. 114 as follows:

Let us now refer to the sections of the British North America Act bearing on the present case, and guided by considerations such as these, I think the Act can be so read as to avoid all conflict and give to each legislative body the full legislative and proprietary rights intended to be conferred by the Imperial Parliament.

11. Keeping this general principle in mind, the task before the Board is to determine the scope of the federal power in navigation and shipping and in fisheries in order to assess whether the activities engaged in by the respondents herein, owners of fishing boats, falls within those powers; if they do so fall, labour relations between those employers and their employees must be held to be within federal jurisdiction, the Canada Labour Code will apply and this Board will not have jurisdiction to hear and determine these certification applications; if they do not so fall, the labour relations will be within provincial jurisdiction and the Ontario Labour Relations Act will apply to give the Board jurisdiction.

B. The Facts

12. In order to apply the tests articulated by the Supreme Court of Canada set out above, and to determine whether the Ontario legislation or the Canada statute applies, it is necessary that the Board have some understanding of the nature of the employer's enterprise and the work performed by the employees. In this regard, counsel placed before the Board the following agreed statement of facts which applies to all the fishing boats involved in these applications and reference to which is restricted to the constitutional issue:

13. The RESPONDENTS are Fishing Boat Owners engaged in commercial fishing on Lake Erie.

These fishing activities take place wholly within the territorial boundaries of the Province of

Ontario.

3. The fishing is conducted from fishing boats having crews ranging in number from five (5) to eight (8) fishermen, including the Captain. In addition, some, if not all, of the RESPONDENTS employ one or more net makers or repairers, who work on shore, maintaining the nets and other fishing gear.

4. Each RESPONDENT requires a licence to fish which states, inter alia, the name and/or the number of the boat, and the conditions under which the licence is issued, including: the waters where the licencee is permitted to catch fish; any restrictions on the size of the nets or fish; the species of fish permitted to be caught; and the quota or quantity of fish permitted to be caught. This quota system has been in effect since 1984, before which the Licence did not regulate the quantity of the catch.

5. The Licence is issued by the Ministry of Natural Resources of Ontario, whose officers supervise the fishery along with Officers of the Ministry of Fisheries and Oceans and the Ministry of the Environment. The Licence is issued pursuant to the provisions of the Ontario Fishery Regulations promulgated pursuant to the Fisheries Act, a Federal Statute.

6. For the purposes of the determination of the jurisdictional issue before the Board only, and for no other purpose, it is agreed that the RESPONDENTS do not carry on the business of the cleaning or the processing of fish.

7. The deckhand fishermen are employees of the RESPONDENTS who make the usual statutory deductions from their pay consistent with an employer-employee relationship, including Income Tax, Unemployment Insurance, Canada Pension Plan. In addition, each of the RESPONDENTS pays Workers' Compensation premiums to the Ontario Workers Compensation Board to cover its employees.

8. The boats upon which the fishermen are employed are registered federally under the jurisdiction of the Canada Shipping Act.

9. The home ports of the Fisheries operated by the RESPONDENTS are either Wheatley or Kingsville.

Counsel clarified that the purpose of paragraph 6 was to ensure that only the fishing boat owned by Omstead Foods, the respondent in File No. 1267-86-R, was the subject of the Board's decision, since Omstead Foods is the only one of the respondents which owns both fishing boats and a processing plant. (The constitutional jurisdiction over the labour relations in such processing plants is before another panel of this Board.) In addition, during the hearing, counsel agreed to two other facts. The crew are paid on a share basis; they share in equal parts a percentage of the value of the catch, the actual percentage varying from boat to boat (in certain instances, the crew are paid an hourly rate but it was conceded by Mr. Nolan that such method of payment is the exception). All the fish caught are sold to processing plants located in the Windsor area and these plants then sell to distributors in Ontario.

C. "Navigation and Shipping"

13. We deal first with the challenge to the Board's jurisdiction under section 91(10) of the Constitution Act, "Navigation and Shipping". Mr. Nolan submits that the fishing boats are the employees' workplace and since they are registered under federal legislation, the Canada Shipping Act, they are within federal jurisdiction by virtue of section 91(10) of the Constitution Act. They thus constitute a "federal work, undertaking or business" subject to Part V of the Canada Labour Code.

14. The major case under this head is the Stevedoring case, supra, in which the applicability of the predecessor to the current Canada Labour Code was challenged. (We note that Mr. Nolan did not restrict his reference to this case to his argument under section 91(10) of the Constitution Act; we also consider it below.) The employees involved were employees of an independent contractor and their work involved loading and unloading cargo ships which operated between Canada and foreign ports. The labour relations governing these employees and their employer was held to be under federal jurisdiction. A brief review of the view taken by the majority is useful as indicating the application of the general principles set out in paragraph 7 above. Kerwin, C. J. indicated the limits to the federal power at p. 535: "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". His Lordship concluded at p. 537 that "[t]he employees ... are part and parcel of works in relation to which the Parliament of Canada has exclusive jurisdiction to legislate". Mr. Justice Taschereau found, at p. 541, that the regulation of the employment of stevedores is an essential part of navigation and shipping and is essentially connected with the carrying on of the transportation by ship of the cargo which stevedores load. Thus, even if incidentally affecting provincial rights, the legislation was valid as being in relation to a subject within federal legislative power under section 91 of the British North America Act.

15. However, the majority of justices appeared to be of the opinion that, in the words of Taschereau, J., at pp. 541-542, although "[t]he terms on which these powers in section 91(10)] are given are so wide, as to be capable of allowing the Dominion Parliament to restrict very seriously the exercise of proprietary rights [in the province] [emphasis in original]", "[t]his however, cannot be construed as excluding the provincial jurisdiction over certain matters as for instance inland shipping which is not always of federal concern [emphasis added]". The suggestion of a limited geographical scope of the federal power over navigation and shipping in the Stevedoring case, supra, was confirmed in Agence Maritime lnc. v. Canada Labour Relations Board et al (1969), 1969 CanLII 109 (CSC), 12 D.L.R. (3d) 722, a unanimous judgement of the Supreme Court of Canada. There the labour relations governing an employer owning three coastal vessels which travelled in Quebec only, with the exception of three brief trips outside the province, was held to be within provincial jurisdiction. The vessels were registered in the Port of Quebec. Fauteux, J., speaking for the Court, stated at p. 728 that

regardless of how liberally the powers conferred upon Parliament by s. 91(10) ... must be construed ... in a case of [this] type, and, except in so far as the shipping aspect of the matter is concerned, the provisions of s. 91(29) and s. 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.

16. In the case before the Board, the fishing boats operate only in the province of Ontario; the respondents are therefore intra-provincial undertakings and the federal power over navigation and shipping does not apply to them. Accordingly, it is not necessary to consider whether fishing boats as such fall within this head of federal power and we do not do so, although we note that there is nothing before us to link federal competence over labour relations in the commercial fishing industry with the federal power over navigation and shipping. Nor, to put it another way, is there anything to suggest that commercial fishing (or the regulation of labour relations therein) is essential to navigation and shipping. (That is not to say, in accordance with Chief Justice Davey at p. 591 of Mark Fishing Co. Ltd. et al v. United Fishermen & Allied Workers' Union et al (1972), 1972 CanLII 1016 (BC CA), 24 D.L.R. (3d) 585 (B.C.C.A.), that "some aspects of employment on fishing vessels involve 'Navigation and Shipping"' such as the qualifications of captains, engineers and seamen, "special aspects of maritime employment [which] do not bear upon the broad question ... [of jurisdiction over labour relations generally]".) Similarly, registration under the Canada Shipping Act is not determinative of the question of jurisdiction over labour relations. It is not the location of the business, but the activity engaged in by the employer on a regular basis, which is significant: Four B Manufacturing Limited, supra. We refer also to Underwater Gas Developers Ltd. v. Ontario Labour Relations Board et al (1960), 1960 CanLII 145 (ON CA), 24 D.L.R. (2d) 673 (Ont. C.A.) in which the Court of Appeal held labour relations between a company engaged in the establishment and servicing of sites for drilling underwater gas and its employees was subject to the Ontario Labour Relations Act; in that case, the boats used by the company were subject to the Canada Shipping Act.

D. "Sea Coast and Inland Fisheries"

17. We turn now to the question of whether the power over "Sea Coast and Inland Fisheries" gives the federal Parliament jurisdiction over the labour relations between fishing boat owners and crew. (We note that the respondents take the position that on-shore workers, such as net repairers and office workers, are properly part of the bargaining unit. However, neither counsel addressed the effect of including these workers in their submissions on the constitutional issue.) It is first necessary to determine the nature or scope of this federal head of power. It is only when this question has been answered that Mr. Nolan's contention that all matters relating to that head of power fall within federal jurisdiction can be applied. If labour relations are integral to that jurisdiction (as he says they are), they will be governed by federal statute.

(1) Scope of the Fisheries Power

18. Both counsel referred us to statutes dealing with fisheries. Mr. Nolan provided us with copies of statutes or portions of statutes enacted by Parliament to indicate the scope of the exercise of federal power. Counsel for the union submitted the statutes of Newfoundland, New Brunswick and Prince Edward Island which have legislated specifically with respect to the labour relations of persons engaged in fishing. As counsel for the union pointed out, the fact of enactment is not determinative; of relevance is the entitlement to enact. Nevertheless, one or two observations with respect to these statutes might be in order. For the most part, the federal statutes clearly deal with issues relating to the protection of the fisheries, such as prohibited methods of catching fish or mammals, restricted seasons for fishing, the construction of "fishways", prohibition against placing deleterious substances in the water, the setting aside of particular waters for the propagation of fish and penalties for contravening the statute. Mr. Nolan points to section 7 of the Fisheries Act, 1865, which deals with the "engagement of fishermen" as relating to labour relations. At that time, however, employment law was governed by the laws of conspiracy and restraint of trade, a matter of criminal law rather than, as it subsequently became in our own federal system, a matter of property and civil rights. We note that the amended "purposes" of the Fisheries Act to come into force January 1, 1987, are as follows:

(a) to provide for the conservation and protection of fish and waters frequented by fish;

(b) to provide for the proper management, allocation and control of the seacoast fisheries of Canada;

(c) to ensure a continuing supply of fish and, subject to paragraph (a), taking into consideration the interests of user groups and on the basis of consultation to maintain and develop the economic and social benefits from the use of fish to fishermen and others employed in the Canadian seacoast fishing industry, to others whose livelihood depends in whole or in part on seacoast fishing and to the people of Canada; and

(d) to provide for the proper management and control of the inland fisheries of Canada and, subject to the constitutional jurisdiction of the provinces, for the allocation of those fisheries.

(It would not be expected, of course, that one of the purposes of the Fisheries Act would be the regulation of labour relations in the fisheries since such provision, were it to be provided at all, would be found in the Canada Labour Code.) With respect to the provincial legislation, it is interesting to note that the schemes are generally set up around fishermen associations and "operators" or "buyers" who are defined as persons who buy fish for the purpose of resale or processing, and not around crews and boat owners.

19. These statutes provide some indication of the federal and provincial perceptions of the legislative authority falling within the jurisdiction of each level of government. However, our determination of the scope of the fisheries power requires resort to jurisprudence relating to that issue. The scope of the fisheries power was explicitly considered in Attorney-General for the Dominion of Canada v. Attorneys-General for the Provinces of Ontario, Quebec, and Nova Scotia 1896 CanLII 76 (SCC), [1898] A.C. 700 (P.C.) (the Fisheries Reference) and in Robertson, supra. The Fisheries Reference concerned the ownership of lake, river and other water beds not granted to the Dominion before confederation and the right of Parliament to issue licences to fish in such waters. The Judicial Committee of the Privy Council held that there is a distinction between proprietary rights and legislative jurisdiction; legislative jurisdiction does not carry with it ownership rights. Proprietary rights in fisheries and in relation to fisheries is provincial, but may be affected by Dominion legislation. For example, the "extent, character, and scope" of legislation with regard to the times of year when fishing is allowed or the instruments which may be used are "left entirely" to Parliament and the manner of fishing is "undoubtedly" within Dominion competence (at pp. 432-433). However, the conveyance of a private fishery falls within property and civil rights and legislation relating to that "deals directly with property, its disposal, and the rights to be enjoyed in respect of it, and was not in their Lordships' opinion intended to be within the scope of the class 'Fisheries' as that word is used in s. 92" (at p. 434). In Robertson, supra, the Chief Justice, beginning at p. 120, states more broadly that

the legislation in regard to "inland and Sea Fisheries" contemplated by the British North America Act was not in reference to "property and civil rights" -- that is to say, not as to the ownership of the beds of the rivers, or of the fisheries, or the rights of the individuals therein, but to subjects affecting the fisheries generally, tending to their regulation, protection and preservation, matters of a national and general concern and important to the public, such as the forbidding fish to be taken at improper seasons in an improper manner, or with destructive instruments, laws with reference to the improvement and increase of the fisheries; in other words, all such general laws as ensure as well to the benefit of the owners of the fisheries as to the public at large, who are interested in the fisheries as a source of national or provincial wealth; ... I cannot discover the slightest trace of an intention on the part of the Imperial Parliament to convey to the Dominion Government any property in the beds of streams or in the fisheries incident to the ownership thereof ... or to confer on the Dominion Parliament the right to appropriate or dispose of them, and receive therefore large rentals which most unequivocally proceed from property, or from the incidents of property in or to which the Dominion has no shadow of a claim;

[emphasis added]

To all general laws passed by the Dominion of Canada regulating "sea coast and inland fisheries" all must submit, but such laws must not conflict or compete with the legislative power of the local legislatures over property and civil rights beyond what may be necessary for legislating generally and effectually for the regulation, protection and preservation of the fisheries in the interests of the public at large ... [T]he general jurisdiction over the fisheries is secured to the parliament of the Dominion, whereby they are enable to pass all laws necessary for their preservation and protection, this being the only matter of general public interest in which the whole Dominion is interested in connection with river fisheries in fresh water, nontidal rivers or streams, such as that now being considered, while at the same time exclusive jurisdiction over property and civil rights in such fisheries is reserved to the provincial legislatures, thus satisfactorily, to my mind, reconciling the powers of both legislatures without infringing on either.

Strong, J. also stated at p. 135 that section 91(12) may be considered "as authorizing Parliament to pass laws for the regulation and conservation of all fisheries, inland as well as sea coast, by enacting, for instance, that fish shall not be taken during particular seasons ... preventing undue destruction of fish by taking them in a particular manner or with forbidden engines, and in many other ways providing for what may be called the police of the fisheries". Henry, J. was of the view that the section 91(12) power "is but to regulate the fisheries and to sustain and protect them by grants of money and otherwise as might be considered expedient" (at p. 142). We note that Henry, J. does refer to other enumerated federal powers, such as "shipping and navigation", "ferries" and so forth, and indicates that the federal power to legislate on such matters does not mean that the right of property was passed to the Dominion in such matters. We also recognize that the federal government may have jurisdiction over labour relations under those heads. Thus the fact that property itself is not transferred to the Parliament does not necessarily mean that labour relations will not fall under federal jurisdiction.

20. However, in our view, while both the Fisheries Reference, supra, and Robertson, supra, were concerned with property in the narrow sense, with proprietary rights, we cannot accede to Mr. Nolan's interpretation that those cases stand for the proposition that only proprietary rights are excluded from the fisheries power. The statements cited above indicate clearly that the justices in Robertson, supra, in particular, were addressing themselves not only to the limited question of whether proprietary rights in river beds were transferred to the Dominion by virtue of the grant to the Parliament of the fisheries power, but also to the broader question of the scope of the fisheries power. While the issues listed by the justices are not said to be exhausttve, the type of subjects listed are consistently related to the preservation and protection of fish as a natural resource and the need for the federal government to regulate the fisheries for those ends. The justices base their decision in the provincial jurisdiction over property and civil rights which at that time had not been held to encompass labour relations. Even so, the Chief Justice excludes the "rights of individuals" in the fisheries from the scope of the federal head of power.

21. More recent case law also supports the view that the fisheries power is limited to that necessary or incidental to the preservation of fish as a natural resource. It is of interest that fish canneries have been held by the Supreme Court of Canada and by the Privy Council to come within provincial jurisdiction: Re Fisheries Act, 1914, 1928 CanLII 82 (SCC), [1928] 4 D.L.R. 190 (S.C.C.), aff'd 1929 CanLII 439 (UK JCPC), [1930] 1 D.L.R. 194 (P.C.). In the Supreme Court, Newcombe, J., speaking for all justices on this point, stated at p. 200:

undoubtedly Parliament has the exclusive authority to regulate what falls within the description [of sea coast and inland fisheries] and one sort of regulation might be a licensing requirement. But a fish cannery is not, according to any of the definitions, or in practice, embraced within a fishery ... It is for the preservation and marketing of the fish when caught and landed that the cannery fulfills a commercial purpose.

The right to operate a fish cannery is a matter of civil rights within the province, similar to the right to operate a fruit cannery or vegetable cannery. Newcombe, J. went on to say that a cannery does not fall within the definitions of a "fishery" which he cited at p. 201: "the right of catching fish in the sea, or in a particular stream or water ....", taken from Paterson on Fishery Laws ("the Paterson definition"), and "[t]he business, occupation, or industry of catching fish .. ..",from Murray's New English Dictionary ("the Murray definition"). Mr. Nolan provided the Board with several definitions of "fishery" which refer to the "business of fishing" or the "catching of fish" or similar terms. These definitions must be interpreted in light of the following further comment by Newcombe,J. atp. 201:

Neither the business of canning fish, nor the operation of fish canning factory, is, by either [of the Paterson or Murray] definitions, nor by any other which I have found, comprised in "fisheries", as that word is used in s. 91, or the terms of Union with British Columbia. Section 7A [of the Fisheries Act, requiring a person to obtain a federal licence to operate a cannery] has no limited or special application to British Columbia, nor to any one of the Provinces as distinguished from another, and it should therefore receive a general and uniform interpretation. The colony was admitted into the Union on the terms and conditions expressed, subject to the provisions of the B.N.A. Act, 1867, and the stipulation with regard to the fisheries which is embodied in the terms of Union consists merely in an undertaking on the part of the Dominion to "assume and defray the charges for the ... protection and encouragement of fisheries," a provision which I am disposed to think does not extend the legislative powers of the Dominion to the licensing of fish canneries.

22. In Mark Fishing, supra, Chief Justice Davey stated at p.592 that the focus of the Paterson definition "is the natural resource, and the right to exploit it, and the place where the resource is found, and the right is exercised [sic]" and nothing in it suggests that section 91(12) "is directed to the regulation or control of the rights and obligations as between themselves of employers and employees who engage in the business of exploiting the resource". Recognizing that the Murray definition is more supportive of the inclusion of labour relations in the fisheries power, his Lordship nevertheless concludes that the weight of authority supports the opposite position that labour relations are not included. Martland, J., in Fowler v. The Queen (1980), 1980 CanLII 201 (SCC), 113 D.L.R. (3d) 513 (S.C.C.) and Northwest Falling Contractors Ltd. v. The Queen (1980), 1980 CanLII 210 (SCC), 113 D.L.R. (3d) 1 (S.C.C.), cited Chief Justice Davey's interpretation of the Paterson definition, apparently with approval (but did not refer to the Chief Justice's understanding of the Murray definition).

23. The Privy Council made it clear at p.199 of the Fisheries Act case (P.C.), supra, that canneries are far outside any permissible content of the fisheries power: "trade processes by which fish when caught are converted into a commodity suitable to be placed upon the market cannot upon any reasonable principle of construction be brought within the scope of the subject expressed by the words 'Sea Coast and Inland Fisheries' ". The contention that licensing of canneries is incidental to the fisheries power was firmly rejected by their Lordships:

It may be, though on this point their Lordships express no opinion, that effective fishery legislation requires that the Minister should have power for the purpose of enforcing regulations against the taking of unfit fish or against the taking of fish out of season, to inspect all fish canning or fish curing establishments and require them to make appropriate statistical returns. Even if this were so the necessity for applying to such establishments any such licensing system as is embodied in the sections in question does not follow. It is not obvious that any licensing system is necessarily incidental to effective fishery legislation, and no material has been placed before the Supreme Court or their Lordships' Board establishing the necessary connection between the two subject matters.

24. The employers herein are involved in the catching of fish, not in canning. Nevertheless, in our view, the Fisheries Act cases, supra, indicate that the fishery power is to be contained, and read in conjunction with the Fisheries Reference, supra, and Robertson, supra, indicate that it is to be read within the context of preservation and protection of fish as a natural resource in the public interest, which is national in scope. Support for this view can be found in Fowler, supra. In that case, the Supreme Court held that section 33(3) of the Fisheries Act, prohibiting any person engaged in logging and certain other similar operations from putting debris into "any water frequented by fish", was ultra vires the Parliament of Canada as being too broad. In doing so, it reversed the decision of the British Columbia Court of Appeal: (1978), 1978 CanLII 1990 (BC CA), 93 D.L.R. (3d) 724. Martland, J., for the Supreme Court, cited with approval passages from Robertson, supra, and the Fisheries Reference, supra, which limit the federal power to preservation of the fisheries or prescribing the time of year when fishing is to be allowed (in the context in those cases of determining whether proprietary rights are encompassed by the fisheries power). His Lordship then went on at p.519 to cite with approval a passage in the dissent of Chief Justice Laskin in Interprovincial Co-Operatives Ltd. et al v. The Queen (1975), 1975 CanLII 212 (SCC), 53 D.L.R. (3d) 321, a passage "not the subject of disagreement by the majority":

"It is, in my view, untenable to fasten on words in a judgment, such as the words 'tending to their regulation, protection and preservation', which appear in the reasons in The Queen v. Robertson, and read them as if they have literal constitutional significance. Federal power in relation to fisheries does not reach the protection of provincial or private property rights in fisheries through actions for damages or ancillary relief for injury to those rights. Rather, it is concerned with the protection and preservation of fisheries as a public resource, concerned to monitor or regulate undue or injurious exploitation, regardless of who the owner may be, and even in suppression of an owner's right of utilization."

Martland, J. found that section 33(3) of the Fisheries Act "does not deal directly with fisheries, as such, within the meaning of [the Paterson or Murray] definitions". Because it "seeks to control certain kinds of operations not strictly on the basis that they have deleterious effects on fish, but rather, on the basis that they might have such effects", it is legislation in relation to property and civil rights within a province. Since it makes no attempt to show that the proscribed conduct will lead to any likely harm to fisheries, it cannot be supported as necessarily incidental to the federal power. Furthermore, although in Northwest Falling, supra, (decided shortly after Fowler), the Supreme Court upheld section 33(2) of the Fisheries Act, Martland, J. stated at p.S of that case that previous Supreme Court judgments and those in the Privy Council "have construed 'fisheries' as meaning something in the nature of a resource" (and thus is not restricted only to fish in the narrow sense, but can extend to all creatures which constitute the fisheries resource). His Lordship distinguished Fowler on the basis that section 33(3) of the Fisheries Act "is not restricted by its own terms to activities that are harmful to fish or fish habitat" while section 33(2) is.

25. Lower court decisions also support the view that the fisheries power is limited to regulation, preservation and protection of the fisheries and that the legislative power of Parliament must be directly related to the fisheries as so defined. In Gulf Trollers Association v. Minister of Fisheries and Oceans and Shinners, [1984] 6 W.W.R., Collier, J. of the Federal Court Trial Division, in finding federal regulations which limited commercial fishing of chinook salmon, but not sport fishing, to be ultra vires Parliament, stated at p. 228:

Conservation and rehabilitation of stocks, to my mind, fall within "protection and preservation" of the public resource. Management and control, if necessarily incidental to protection and preservation, also fall within federal legislative power.

I do not, therefore, accept the contention on behalf of the respondents that there is power, federally, to manage and control fisheries for the benefit of Canadians, quite distinct from any protection or preservation considerations.

Since one reason for the regulations was "socio-economic management allocations", they could not be sustained. A similar view was taken by Mr. Justice Berger in Attorney-General of Canada v. Aluminum Co. of Canada Ltd. (1980), 1980 CanLII 291 (BC SC), 115 D.L.R. (3d) 495 (B.C.S.C.), although in that case he issued a mandatory injunction requiring Alcan to release certain amounts of water through its spill-way in compliance with an order of the Minister of Fisheries and Oceans pursuant to the impugned legislative provision which empowered the Minister to require the release of an amount of water through spillways sufficient to flood spawning grounds. In obiter, Berger, J., referring to Robertson, supra, Fowler, supra, and Northwest Falling Contractors, supra, noted at p. 497 that "[t]he Minister's power is wide, but it is a power conferred for the protection of the fishery, and not one which purports to allow him to regulate other activities unconnected with the fishery".

26. We are satisfied on the basis of the authorities cited above, that while the federal power under section 91(12) of the Constitution Act has not been finally determined or definitely delineated, it has been generally and consistently considered to extend only to the preservation of fisheries as a natural resource. The completely open-ended nature of the term "Sea Coast and Inland Fisheries" has of necessity invited judicial interpretation; that interpretation has been consistent with the rationale that as a public resource for the benefit of all persons in Canada, Parliament requires the power to control fisheries in order to conserve and improve the fisheries. The next question is whether control over the labour relations of fishing boat crews falls within or is integral to that mandate.

(2) Relationship of the Work Performed and the Federal Power

27. The specific issue before this Board of whether labour relations on fishing boats falls within the scope of section 91(12) of the Constitution Act has not yet been determined by the Supreme Court of Canada. The matter was addressed in Mark Fishing, supra; there the Chief Justice of the British Columbia Court of Appeal found that labour relations on fishing boats is under provincial jurisdiction. In his Lordship's view, the regulation of employment relations cannot advance the protection and regulation of fish. Referring to Robertson, supra, his Lordship saw no distinction between property rights in fisheries and regulation of labour relations, since both fall within section 92(13) of the B.N.A. Act. However, Maclean, J. did not decide that question and Robertson, J. found that if the relationship between the boat owners and the fishing crew was one between employer and employees (rather than of co-adventurers), the federal act would apply (although he explicitly stated that the federal statute does not apply to the shore workers). Since the Supreme Court found that the union had no defence against liability for counselling the employees in the processing plants and the crews of the boats to "strike" the boat owners, regardless of whether the crew were employees and regardless of whether the federal legislation applied, it did not address the issue of where jurisdiction over labour relations lay: 1973 CanLII 1315 (SCC), 38 D.L.R. (3d) 316 (S.C.C.). Mark Fishing, supra, therefore, cannot be understood to stand for the proposition that labour relations on fishing boats are within provincial jurisdiction.

28. Of interest is the decision of the Federal Court of Appeal in Re British Columbia Packers Ltd. et al and British Columbia Council United Fishermen and Allied Workers Union (1975) 71 D.L.R. (3d) 565, aff'g (1974), 1974 CanLII 2436 (FC), 50 D.L.R. (3d) 602 (F.C.T.D.) which held that labour relations between the owners of processing plants and the crews of fishing vessels fall within provincial jurisdiction. The Supreme Court of Canada did not address the constitutional question because it determined the case on the basis that, because of the specific wording of the Canada Labour Code, the crews were not employees of the fish processors and therefore relations between the two could not be governed by the Code regardless of whether it was constitutionally applicable: (1877), 1977 CanLII 205 (SCC), 82 D.L.R. (3d) 182 (S.C.C.). The facts of the B. C. Packers case are slightly different from those in the case before the Board, although that distinction raises an interesting question about the relationship between the activity engaged in by fishing boat crews and that of the processing plants. In that case, the applicant union had applied to the Canada Labour Board for certification as bargaining agent of the crews of the fishing boats who sell fish to the processors. In other words, the crews of the fishing boats were considered by the union to be employees of the processors, not employees of the fishing boat owners; the latter relationship is, of course, the one presently before the Board. As already indicated, the appropriate jurisdiction of employees of the canning plants themselves (that is, persons who work within the canning plants) has been determined to be provincial: Fisheries Act, supra. The question in B. C. Packers, supra, as articulated by Chief Justice Jackett at p. 570 of the Federal Court of Appeal decision, was whether the Canada Labour Code extends to "regulating the sale of fish or as a law regulating that part of the business of fishing or of a 'fisheries' business that constitutes disposal of the fish after they have been caught". However, his Lordship went on to frame the issue more broadly in the following passage beginning at p. 571:

In so far as prior decisions are concerned, s.91(12) has not been found to go beyond what may be described conveniently, but not precisely, as police regulation of "fisheries" regarded as property rights, the activity of removing fish from the water of the places where that activity is carried on. Clearly, so regarded, s. 91(12) is not broad enough to authorize a law in relation to the sale of fish after it has been caught ... The difficult question raised by this case is whether the word "fisheries" in s. 91(12) also embraces a fishing or "fisheries" business as such, in which event, a law regulating the business could regulate the whole of the management of the business, which would include labour relations between the operator of the business and his employees and the disposition of the fish after it is taken from the water....[lit would seem to me that the regulation of businesses as such has been carved out of s. 91(12) by decisions that are binding on this Court and has been left to the provincial Legislatures as being the regulation of matters of a merely local or private nature in the respective Provinces except where the regulation of a particular class of business falls within a specific portion of s. 91

Most other heads of federal power, as it seems to me, relate to subject matters other than the regulation of businesses as such - although a particular law of some other character, such as a criminal law, may substantially affect the operation of businesses .... With some hesitation, therefore, because I am only too aware that there are dicta in the decisions, and there are portions of the definition of 'federal work, undertaking or business' in the Canada Labour Code that do not seem to accord with my reasoning, I have concluded that s.91(12) authorizes Parliament to make laws in relation to "fisheries" but does not extend beyond that to the making of laws in relation to things reasonably incidental to carrying on a fishing business, such as labour relations and disposition of the products of the business, when such things do not in themselves fall within the concept of "fisheries". [emphasis in original]

Sheppard, D.J. also held at p. 572 that section 91(12) "does not extend to the regulating of the business of fishing as such" and Smith, D.J. agreed that section 91(12) "is not broad enough to authorize Parliament to enact legislation in relation to the business of fishing, insofar as that business is concerned with labour relations or with the sale of fish after they have been caught". We are cognizant, as Mr. Nolan reminded us, that the B. C. Packers cases, supra, and Mark Fishing, supra, were decided before Montcalm Construction Inc. v. Minimum Wage Commission et al (1978), 1978 CanLII 18 (SCC), 93 D.L.R. (3d) 641(S.C.C.) and Northern Telecom, supra, in which the Supreme Court articulated the tests on which Mr. Nolan relied; however, in our view, the approach taken by the Courts in the B. C. Packers cases, supra, and Mark Fishing, supra, are not inconsistent with those tests which do, in any case, evolve from prior jurisprudence. Our own decision is based on the tests generally articulated by the Supreme Court of Canada, as set out in paragraph 7 above and paragraph 29 below.

29. In reaching our decision on this point, we have been guided by the principles expressed in the Reference re the Saskatchewan Minimum Wage Act, supra; the Stevedoring case, supra; Commission du Salaire Minimum v. The Bell Telephone Company, 1966 CanLII 1 (SCC), [1966] S.C.R. 767; Letter Carriers' Union of Canada v. Union of Postal Workers et al (1973), 1973 CanLII 183 (SCC), 40 D.L.R. (3d) 105 (S.C.C.) (the Letter Carriers case; Canada Labour Relations Board et al v. City of Yelllowknife (1977), 1977 CanLII 230 (SCC), 76 D.L.R. (3d) 85 (S.C.C.); Montcalm Construction, supra, and Northern Telecom, supra. In certain of those cases, the Supreme Court was asked to decide if one entity performing work for another entity within federal jurisdiction, was nevertheless subject to federal jurisdiction even though it was separate from the federal entity: whether stevedores working for an independent contractor loading and unloading ships were subject to federal jurisdiction by virtue of the federal "Navigation and Shipping" power (Stevedoring case); whether the employees of a mail delivery contractor delivering mail for the Canada Post Office were subject to federal jurisdiction by virtue of the federal power over the "Postal Service" (the Letter Carriers case); whether the employees of a contractor constructing runways at Mirabel airport were subject to federal jurisdiction by virtue of the power over aeronautics (Montcalm Construction); and whether installers of telephone equipment for Bell Canada were within federal jurisdiction by virtue of the federal power over communications (Northern Telecom). The Court was also asked to decide whether a temporary employee hired by a postmistress could benefit from the Saskatchewan Minimum Wage Law (Reference re Saskatchewan Minimum Wage Act); whether an interprovincial telephone system is subject to Quebec minimum wage laws (Commission du Salaire Minimum); and whether employees of a municipality organized in federally administered territory are governed by the Canada Labour Code (City of Yellowknife). In all but two of these cases, the Supreme Court held that federal legislation applied (or that provincial legislation did not apply). In Montcalm Construction, supra, it held that provincial legislation intended to recover wages, health insurance premiums and similar employee entitlements applied. In Northern Telecom, supra, the Court ruled that it had insufficient evidence before it to reach a decision but the majority subsequently found employees in a different region and their employer to be governed by federal statute: Northern Telecom Canada Ltd. et al v. Communication Workers of Canada et al (1983), 1983 CanLII 25 (SCC), 147 D.L.R. (3d) 1 (S.C.C.). Dickson, J. (as he then was) stated: "There is clearly some connection between the Telecom installers and Bell Canada, the core federal undertaking, but is it sufficient to displace the prima facie position that labour relations are a matter of provincial competence?" Although he considered the case "close to the boundary line", his Lordship found that the installers' work was "an integral part of Bell Canada's operations as a going [and continually renewed, updated and expanded] concern".

30. The thrust of these cases is that federal jurisdiction over labour relations will apply when the work performed is closely related to the federal entity involved. Kerwin, C.J. at p. 535 of the Stevedoring case, supra, stated that the federal legislation should not apply to employees "employed at remote stages, but only to those whose work is intimately connected with the work, undertaking or business"; Kellock, J. in the same case stated at p. 556 that "in connection with" in now section 108 of the Canada Labour Code is "to be construed as limited to persons actually engaged in the operation of the work, undertaking or business in question"; Estey, J., also in the same case, phrased the test as follows at p. 561: is labour relations an "integral part of or necessarily incidental to" the section 91 heading involved (and applied that test to determine whether the work done by the stevedores was an integral part of the operations of the steamships). In the Letter Carriers case, supra, the Court found that the work performed by the truck drivers was "essential to the function of the Postal Service" and indicated that it was not necessary that they work exclusively for the Post Office. Remoteness was again referred to in Northern Telecom (1979), supra, at p. 15: "Mere involvement of the employees in the federal work or undertaking does not automatically import federal jurisdiction. Certainly, as one moves away from direct involvement in the operation of the work or undertaking at the core, the demand for greater interdependence becomes more critical". An important factor in the Reference re Saskatchewan Minimum Wage Act, supra, was that the federal power under the "Postal Service" is considered to be of "widest import" and is intended to be interpreted "as sufficiently comprehensive to include all the accommodations and facilities provided by the Post Office" (at p. 269, per Estey, J.). Accordingly, since the employee involved did usual post office work, the provincial minimum wage legislation did not apply: "It cannot be said that the imposition of minimum wages and maximum hours relative to employees in the Post Office does not attempt to interfere directly with the exercise of Dominion power in respect to the Postal Service" (at p. 272, per Estey, J.). In Commission du Salaire Minimum, supra, labour relations, as a "vital part of the management and operation" of such an undertaking, was found to fall within federal jurisdiction Bell Telephone, an interprovincial undertaking under sections 91(10) and 92(29) of the B.N.A. Act . The City of Yellowknife case, supra, is of little assistance except to note the comment of Pigeon, J. at p. 90, concurred in by two other justices, that there is no reason to assume that the scope of section 2(i) of the Canada Labour Code was to be restricted by the authority of the Commissioner of the Northwest Territories as "it is necessarily restricted by consideration of the extent of the Provinces' legislative authority".

31. The Montcalm Construction case, supra, is of particular interest because of the analysis of the scope of "aeronautics" and "construction" engaged in by Mr. Justice Beetz (and concurred in by four other justices). In that case, Montcalm Construction had contracted to construct runways at Mirabel. There was no evidence before the Court indicating the nature of the construction done by Montcalm other than the runways and the Court therefore assumed it performed normal construction work and further found that Montcalm itself was not a federal undertaking. The Quebec Minimum Wage Commission brought an action against the contractor to recover the employees' wages, health insurance premiums and other monies owing. Montcalm argued that since aeronautics is within exclusive federal jurisdiction and Mirabel, as an airport, is part of a federal work or undertaking, the Quebec Commission had no jurisdiction. The majority of the Supreme Court rejected that argument on the basis of the tests in the Stevedoring case, supra; Agence Maritime, supra; and the Letter Carriers case, supra. Mr. Justice Beetz, for the majority, found that the construction of an airport is not in every respect an integral part of aeronautics. Whether and where to build an airport, his Lordship said, are decisions within exclusive federal jurisdiction, as are the design, the dimensions, the materials and runways "apart from contract". These decisions are permanently reflected in the finished product and therefore have a direct effect on the operation of the airport. But carrying out those decisions is a different matter; that, as is the requirement to wear a safety helmet, is a matter of safety. His Lordship held at p. 655 that the matter of wages paid by an independent contractor (although the status of the contractor is not determinative) to employees engaged in the construction of runways is so far removed from aerial navigation or the operation of an airport "that it cannot be said that the power to regulate this matter forms an integral part of the primary federal competence over aeronautics or is related to the operation of a federal work, undertaking, service or business". His Lordship continued at p. 656:

the impugned legislation does not purport to regulate the structure of runways. The application of its provisions to Monicalm and its employees has no effect on the structural design of the runways; it does not prevent the runways from being properly constructed in accordance with federal specifications; nor has it even been shown, assuming it could be, that the "physical condition" of the runways, as opposed to their structure, is affected by the wage and conditions of employment of the workers who build them.

The principles set out in Montcalm Construction, sup ra, were applied in Re Attorney-General of Nova Scotia and Maritime Engineering Ltd. et al (1979), 1979 CanLII 2551 (NS CA), 105 D.L.R. (3d) 158, in which the Nova Scotia Court of Appeal held that labour relations between an employer with a contract with the Department of Public Works to construct a wharf and the employees constructing the wharf were within provincial jurisdiction, even though the employer's only business was in constructing such wharves.

32. We now apply the tests articulated by the Supreme Court of Canada in determining whether provincial or federal legislation governs for labour relations purposes when there is a federal head of power involved to the facts of the case before us. We have already said that the weight of authority supports the limitation of the federal power to the preservation and conservation of fisheries as a public resource. The respondents are fishing boat owners who engage in commercial fishing. In our view, a commercial fishing business is not a federal work, undertaking or business and therefore labour relations between the boat owners and the crews is, on that basis, not subject to the Canada Labour Code. However, this does not end the inquiry. For if the activities of commercial fishing are necessarily incidental or integral to the federal power over fisheries, labour relations in the commercial fishing industry will be governed by the Canada Labour Code. In catching fish to sell to processing plants for the market, on the evidence before us, they are not directly engaged in the preservation and conservation of the resource; where what they do has an impact or potential impact on the resource, they are subject to federal statutes and regulations relating, for example, to the kinds of fish they can catch, when and how much and with what instruments. But their activity is not directed towards the preservation of the resource; they are not "actually engaged in" the preservation of the resource. The work done by the fishermen has not been shown to be "an integral part" of or "essential to" the conserving, preserving or improving of the resource; nor does labour relations between the crew and the boat owners appear to us to be an "integral part of or necessarily incidental to" the preservation of the resource. The Ontario Labour Relations Act does not purport to affect the preservation and conservation of fisheries and its application to the employment relations between the owners and the crew does not affect the federal government's ability to fulfil its mandate with respect to protecting fisheries as a resource. In short, there is no evidence before this Board to show that the regulation of employment of fishing crews is an essential part of fisheries and is essentially connected with the preservation and conservation of the public resource. We might add that there is at least as much evidence before us of the interconnectedness of the processing plants and the boats as of the connection between the boats and the preservation of the fisheries.

33. By way of contrast, we refer to the decision of the Canada Labour Board in Winsor v. Scotian Shelf Traders (1984), 4 CLRBR (NS) 278 in which the Board was required to inquire into an allegation of an unfair labour practice. The employer had a contract with the Department of Fisheries to hire and supervise fisheries monitors serving on vessels in Canadian waters, as well as a second contract relating to an observer programme. The employer argued that the Canada Board had no jurisdiction because the observers were engaged in a fisheries operation which was subject to provincial jurisdiction; the applicant argued that the observers were not engaged in a fisheries operation but were performing work integral to the regulation of the fisheries and therefore within federal jurisdiction. The Board held, after referring to Robertson, supra, and indicating that the exact scope of the fisheries power had not been finally determined, that the observers were engaged directly in the regulation, protection and preservation of the fisheries and that therefore the regulation by Parliament of employer-employees relations between Scotian Shelf Traders and the observers is integral to Parliament's jurisdiction to regulate, protect and preserve the fisheries. In that case, the employee involved could be characterized as doing work directly within the scope of the federal power over fisheries; fishing crews are not doing work directly within the scope of that power.

III. Conclusion

34. Having considered the agreed statement of facts and the very helpful submissions of counsel both for the applicant and for the respondents, we are not satisfied that the totally intraprovincial activity engaged in by the respondents hereto and the work performed by their employees is vital or essential to, or forms an integral part of, the power of Parliament to regulate, preserve, conserve and improve fisheries so that the exclusive jurisdiction of the provincial government over labour relations is displaced by the federal jurisdiction over either "Navigation and Shipping" or "Sea Coast and Inland Fisheries".

35. We accordingly find that this Board has jurisdiction to hear these applications for certification. Hearings have been scheduled for the purpose of hearing evidence and submissions with respect to other objections raised by the respondents herein to the holding of a pre-hearing representation vote and with respect to the objections arising out of the conduct of those votes, in the event that the Board found that it had jurisdiction to hear these matters.

36. The Board ordered the ballot boxes in these applications to be sealed, pending further order of the Board. The jurisdictional issues having now been determined, the Board orders that the boxes be opened and the ballots counted in all the applications herein, except in File No. 1278-86-R. In File No. 1278-86-R, the entitlement of the applicant to a pre-hearing representation vote depends on the resolution of objections raised by the parties and accordingly, the box is to remain sealed until the issue of entitlement is resolved. The Board appoints an officer to meet with the parties with respect to the counting of the ballots, in accordance with the normal practice of the Board. The Board's order to count the ballots is subject to submissions by the parties that the boxes should not be opened. Any such submissions are to be filed with the Board within ten days of the release of this decision.

37. This matter is referred to the Registrar.