United Food & Commercial Workers International Union v. W. G. Thompson & Sons Limited, 1987 CanLII 3275

[1987] OLRB Rep. May 787

3150-86-R United Food & Commercial Workers International Union, Applicant v. W. G. Thompson & Sons Limited, Respondent V. Group of Employees, Objectors

BEFORE: Robert D. Howe, Vice-Chair, and Board Members R. M. Sloan and B. L. Armstrong.

APPEARANCES: Joanne L. McMahon, David MacMillan and Robert Watson for the applicant; Richard Nixon and Richard Janda for the respondent; Mark B. Coulston, David J. Robert and John H. Boswell for the objectors.

DECISION OF THE BOARD; May 20, 1987

1. The name of the respondent is amended to "W. G. Thompson and Sons Limited". (For ease of exposition, the respondent is also referred to in this decision as the "Company".)

2. This is an application for certification in which the respondent has raised a preliminary objection to the constitutional jurisdiction of the Board to hear and determine the application. In this regard, it is the respondent's position that by the provisions of section 45 of the Canadian Wheat Board Act, R.S.C. 1970, c. C-12 (the "C.W.B.A."), Parliament has declared that the res­pondent operates a work for the general advantage of Canada, thereby placing the respondent's operations under federal jurisdiction by virtue of section 92(10)(c) of the Constitution Act, 1867 (the "Constitution Act"). The applicant (also referred to in this decision as the "Union") disputes that position and contends that the Board has jurisdiction to hear and determine this application.

3. Wesley D. Thompson, who has been the President of the respondent since 1951, gave extensive, uncontradicted evidence before the Board concerning the respondent's operations. It is unnecessary to detail his testimony in this decision; it is sufficient for purposes of the present case to summarize some of the facts which emerged from his evidence. The Company's premises in Blenheim are bisected by a set of railway tracks. Its "Hyland Seeds Division" is located on one side of the tracks. That division processes and mills seed corn by dehusking, sorting, drying, shell­ing, cleaning, sizing, treating, and bagging it. The respondent's seed corn operation also has two warehouses with combined storage space for approximately one hundred thousand 50-pound bags of seed corn. Over 50% of the respondent's seed corn is exported. The rest is sold throughout Can­ada by the respondent's farm dealer network. In addition to seed corn, the respondent sells a vari­ety of other seeds under the "Hyland" label, including oats, barley, wheat, soya beans, and rape-seed.

4. The respondent operates a feed mill on the other side of the railway tracks. Various grains, including corn, wheat, oats, and barley, are purchased by the respondent from local farm­ers, and are mixed and milled (by grinding, hammering, or rolling) to produce various feeds for livestock. On that side of the tracks the respondent also operates a feed warehouse, and two seed cleaning mills in which it cleans, grades, sorts, treats, and bags wheat seed, soya beans, and various other seeds. There are four warehouses which operate in conjunction with those seed cleaning mills. There is also a mill in which the respondent cleans, sorts, polishes, and bags white pea beans, red kidney beans, and yellow eye beans, and another mill in which corn, wheat, oats, and barley are weighed, sampled, cleaned, and bagged or stored in bulk. The respondent also cleans and packages wild bird seed. Recently it also began to mill and package popcorn. In describing that part of the respondent's Blenheim operations, Mr. Thompson stated, "The popcorn mill was built in 1986. We've been involved in popcorn since 1983. This is not a major part of our business; it's a sideline " The respondent's Blenheim operations also include a seed laboratory which is accredited by the Food Production and Inspection Branch of Agriculture Canada to analyze and grade imported field and garden beans, corn, and soya beans, for determining the eligibility for entry into Canada of seed under the Seeds Act, R.S.C. 1970, c. S-7.

5. The sole witness called by the applicant was David MacMillan, who was a National Representative for a local of the Brewery Workers Union from 1978 until March of 1986 when he became an International Representative for the applicant. After discussing with an employee the nature of the respondent's operations, Mr. MacMillan considered the matter of whether a certifica­tion application should be filed with the Ontario Labour Relations Board or the Canada Labour Relations Board. In deciding to file the application with the Ontario Labour Relations Board, he considered the fact that it had certified the Brewery Workers Union as the bargaining agent for employees of United Co-operatives of Ontario ("U.C.O.") in Cottam and Oldcastle. (He also knew that the U.C.O.'s retail outlet in Kingsville had been provincially certified.) Although his knowledge concerning the nature of the U.C.O.'s operations in Cottam and Oldcastle was quite limited, he knew from driving past them that they had grain elevators and drying facilities. He also knew that they shipped grain to the U.C.O. terminal in Windsor, which he understood to be under federal jurisdiction because it was located on a waterway. Mr. MacMillan was unable to tell the Board whether or not the U.C.O. has a feed warehouse in Cottam or Oldcastle. It was his under­standing that inland facilities were under provincial jurisdiction, and that facilities on a waterway were under federal jurisdiction. Thus, he concluded that the respondent's operations fell under provincial jurisdiction because they were inland. Consequently, he decided to "proceed provincial­ly", and to collect only one dollar from each employee who wished to join the Union, rather than the five dollars required under the provisions of the Canada Labour Code.

6. Section 91(29) of the Constitution Act gives Parliament exclusive legislative jurisdiction over:

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

One of the classes of subjects expressly excepted from provincial jurisdiction by section 92(13) is:

(c) Such Works as, although situate within the Province, are before or after their Execution declared by the Parliament of Canada to be for the general Advantage of Canada or for the Advantage of Two or more of the Provinces.

/xs noted in Hogg, Constitutional Law of Canada (2nd Ed., 1985) at page 491, "[t]his 'declaratory power' enables the federal Parliament to assume jurisdiction over a local work by declaring the work to be 'for the general advantage of Canada'." In Jorgenson v. Attorney General of Canada, 1971 CanLII 136 (SCC), [1971] S.C.R. 725, the Supreme Court of Canada held that a declaration under section 91(1O)(c) need not individually specify each work by name or other individual description; works may validly be compendiously brought within federal legislative jurisdiction by a "class" reference, such as that contained in section 45 of the C.W.B.A., which provides:

For greater certainty, but not so as to restrict the generality of any declaration in the Canada Grain Act that any elevator is a work for the general advantage of Canada, it is hereby declared that all flour mills, feed mills, feed warehouses and seed cleaning mills, whether heretofore con­structed or hereafter to be constructed, are and each of them is hereby declared to be works or a work for the general advantage of Canada, and, without limiting the generality of the foregoing, each and every mill or warehouse mentioned or described in the schedule is a work for the gen­eral advantage of Canada.

7. Counsel for the applicant submitted that section 45 applies only to the "Western Divi­sion" of Canada, as defined in section 2(51) of the Canada Grain Act, S.C. 1970-71-72, c. 7 (the "C.G.A."), which provides:

"Western Division" means all that part of Canada lying west of the meridian passing through the eastern boundary of the City of Thunder Bay, including the whole of the Province of Mani­toba.

In support of that contention, counsel referred the Board to Camirand v. The Queen, [1976] C.S. 1299. In that case, Mr. Justice Mignault of the Quebec Supreme Court held that section 45 only affects mills or warehouses located in the "designated area", as defined in section 2(1) of the C. W.B.A., which provides:

"designated area" means that area comprised by the Provinces of Manitoba, Saskatchewan and Alberta, and those parts of the Province of British Columbia known as the Peace River District and the Creston-Wyondel Areas, and such other parts of the Province of British Columbia and such parts of the Province of Ontario lying in the Western Division as the Board may from time to time designate....

However, as submitted by counsel for the respondent, the reasoning and conclusion of the Camarand case are inconsistent with the more recent Quebec Superior Court Decision in Compagnie Du Trust National Ltee c. Burns, 1985 CanLII 3334 (QC CS), [1985] C.S. 1286. In that case, Madame Justice Mail-hot, after reviewing the history of the C.G.A. and the C.W.B.A. and carefully considering the wording of section 45 of the C.W.B.A. in the context of that legislation, concluded that section 45 applies throughout Canada and is not confined to the "designated area". For the reasons set forth below, we respectfully agree with her reasoning and conclusion in that regard.

8. The C.W.B.A. is divided into six parts. Part I, which consists of sections 3 to 15, per­tains to the composition and powers of the Canadian Wheat Board. Part II, which consists of sec­tions 16 to 23, pertains to "control of elevators and railways". Section 16 explicitly limits the mean­ing of "grain" in that Part to "grain produced in the designated area" (subject to expansion by regulation, as permitted by section 23). Part III, which consists of sections 24 to 32, pertains to "in­ter-provincial and export marketing of wheat by the [Canadian Wheat] Board". Many of its provi­sions are also expressly limited to the "designated area"; see, for example, sections 25, 26, and 27. See also section 32, which empowers the Governor in Council to apply the provisions of that Part (with the exception of section 31) in respect of wheat produced in any area of Canada outside the designated area. Part IV, which pertains to "regulation of inter-provincial and export trade in wheat", is not limited to the "designated area". Part V pertains to "oats and barley", and empow­ers the Governor in Council to extend by regulation the application of Part III and/or Part IV to oats and/or barley. Section 45 is included in Part VI, which consists of sections 36 to 46. The head­ing which appears at the beginning of that Part is "GENERAL". There is nothing in that part or elsewhere in the Act which expressly or implicitly limits section 45 to the "designated area". Although all of the mills and warehouses mentioned or described in the schedules are located in Manitoba, Saskatchewan, Alberta, or British Columbia, section 45 expressly stipulates that the legislative declaration of each of those mills or warehouses to be a work for the general advantage of Canada has been made without limiting the generality of the general declaration which precedes it. As noted above, under that general declaration "all flour mills, feed mills, feed warehouses and seed cleaning mills, whether heretofore constructed or hereafter to be constructed, are and each of them is ... declared to be works or a work for the general advantage of Canada". Having regard to the broad language of section 45 in the context of an act in which a number of other sections have been expressly limited in their geographical scope of operation, we conclude that section 45 applies throughout Canada and is not limited to the aforementioned "designated area" or "Western Divi­sion".

9. Our conclusion in that regard is consistent with the interpretation which the Board has given to section 45 of the C. W.B.A. in previous cases. See, for example, Supersweet Formula Feeds, [1965] OLRB Rep. June 212, in which the Board found that it had no jurisdiction in respect of an employer's feed mill in Milton, Ontario, as it came within the scope of the declaration con­tained in section 45 of the C.W.B.A. See also Maple Leaf Mills Limited (Komoka Branch), [1969] OLRB Rep. Feb. 1177, in which the Board found that, by virtue of section 45 of the C.W.B.A., it was without jurisdiction in a certification application pertaining to an employer's operations in Komoka, Ontario, which included "the operation of a feed manufacture plant, an elevator for the storage of grain products and a seed cleaning and packaging operation".

10. Counsel for the applicant also contended that the respondent's mills and warehouses in Blenheim are not covered by Parliament's section 45 declaration because the respondent works with corn, soya beans, white pea beans, red kidney beans, and yellow eye beans. However, we find no merit in that argument. "Grain", as defined in section 2(1) of the C.W.B.A.,"includes wheat, oats, barley, rye, flaxseed and rapeseed" (emphasis added). Thus, it is not limited to the types of grain listed in that non-exclusive definition. Moreover, as submitted by respondent's counsel, the word "grain" does not appear in the declaratory portion of section 45 which, as noted above, declares all flour mills, feed mills, feed warehouses, and seed cleaning mills to be works for the general advantage of Canada.

11. Counsel for the Union also sought to rely upon two letters dated April 2, 1987 to Mr. MacMillan, which were introduced as exhibits during his testimony. The first, which is from M. Hasson, a Regional Manager with the Employment Standards Branch of the Ministry of Labour, reads as follows:

Dear Mr. MacMillan:

I have received a written inquiry from your solicitor, Ms. Joanne L. McMahon, concerning the application of the Employment Standards Act on feed mills and grain elevators. Ms. McMahon particularly asked me if W. G. Thompson & Sons Limited and its division Hyland Seed in Blen­heim, Ontario would fall under the jurisdiction of the Employment Standards Branch.

I wish to advise you that the Employment Standards Branch has exercised jurisdiction on the feed mills and grain elevators which are situated and operated in an inland facility and are not located on a waterway. The operations located on waterways have been designated as federal jurisdiction. I have not physically examined the location of the company in question, however, the aforementioned policy will be criterion in determining provincial or federal jurisdiction.

I trust this information is of assistance to you.

12. The second letter is from T. Casey, the Director of the Ministry of Labour's Industrial Health & Safety Branch. It reads:

Dear Mr. MacMillan:

With respect to my telephone conversation with Ms. Joanne McMahon of Ahee & Associates (representing the United Food & Commercial Workers Union), on March 24, 1987, regarding the governmental jurisdiction for Hyland Seed, Sarnia, the following was found.

Between 1972 and 1978, under an agreement between the federal and the provincial govern­ments, inspections of grain elevators and feed, flour, seed and grain facilities throughout the Province of Ontario were identified under the jurisdiction of the Ministry of Labour (MOL). Federal requests for inspections to be carried out by the MOL ceased in 1978 and Labour Can­ada assumed responsibility for inspections under the Canada Grain Act and the Canadian Wheat Board Act.

Through further arrangements made in early 1982, the MOL resumed jurisdictional authority of feed, flour, seed and grain facilities in the Province of Ontario. Those grain elevators situated along waterways and other navigable waters connecting the Great Lakes and the St. Lawrence River remain administered under the Canada Grain Act within the jurisdiction of the Federal Government. A review of the file of Hyland Seed, Sarnia, indicates that this company is under provincial jurisdiction.

I trust this information will be of value to you.

13. Counsel for the respondent advised the Board that he did not object to the introduction W those two letters as exhibits on the basis that they were in fact letters received by Mr. MacMillan. However, he submitted that no weight should be given to them as he had no opportunity to cross-examine the writers concerning such matters as to the extent of their knowledge regarding the respondent's operations and regarding section 45 of the C.W.B.A., their qualifications to determine constitutional issues, the legal basis of their conclusions respecting provincial jurisdic­tion, and other pertinent matters. In the alternative, he submitted that Mr. Hassan's letter deals with only part of the respondent's operations, and makes no mention of its feed warehouses and seed cleaning mills. He further submitted that the first two sentences in the second paragraph of that letter can be explained on the basis of the declaration contained in section 43(1) of the C. G.A., by which various "elevators" are declared to be for the general advantage of Canada, including (by virtue of section 2(1)(b)) of the C. G.A.) "any premises in the Eastern Division, situ­ated along Lake Superior, Lake Huron, Lake St. Clair, Lake Erie, Lake Ontario or the canals or other navigable waters connecting those Lakes or the St. Lawrence River or any tidal waters, and into which grain may be received directly from railway cars or ships and out of which grain may be discharged directly to ships". Counsel for the respondent made similar submissions regarding Mr. Carey's letter. In addition, he noted that the letter refers only to "Hyland Seed, Sarnia", and makes no reference to W. G. Thompson and Sons Limited or to Hyland Seed in Blenheim. He also noted that the governmental arrangements referred to in that letter appear to be based on a dele­gation of administrative authority by the Federal Government to the Provincial Government.

14. Having carefully considered those letters, we do not find them to be of assistance to us in deciding this case. It is evident from the contents of the letters that their writers did not have the benefit of the detailed evidence regarding the respondent's Blenheim operations that was adduced before us in these proceedings, nor is it likely that they had the benefit of extensive legal submis­sions regarding the pertinent constitutional, statutory, and jurisprudential materials. Thus, it may well be that, as suggested by counsel for the respondent, the administrative division of authority referred to in those letters is based upon the declaration contained in section 43(1) of the C. G.A., and does not take into account the broader declaration contained in section 45 of the C. W.B.A., which we have found to be applicable to the respondent's Blenheim operations. In any event, in the absence of cogent evidence concerning the factual and legal basis of the conclusions set forth in those letters, we do not find them to be helpful in determining the preliminary issue before us in these proceedings.

15. We are also not assisted in deciding this matter by the fact that the respondent complied with a recommendation or direction, contained in a health and safety report, that guards be put on certain belts. It is unclear from the evidence whether that report was prepared by a federal or a provincial health and safety agency. However, even if it is assumed to have been prepared by an official of the Industrial Health and Safety Branch of the Ontario Ministry of Labour, it does not assist us in deciding the constitutional issue which is before us in this case, as the respondent took that action without consulting with legal counsel or otherwise obtaining an informed opinion or determination concerning the agency's constitutional jurisdiction over the respondent's operations.

16. Counsel for the Union also sought to support her client's contention that the respon­dent's Blenheim operations fall within provincial jurisdiction on the basis of Mr. MacMillan's testi­mony that the U.C.O. operations in Cottam and Oldcastle were certified by the Board. However, it appears that the Board's jurisdiction with respect to those U.C.O. operations was not disputed. Moreover, the extremely limited evidence which was adduced before us concerning those opera­tions does not enable us to carry out a meaningful comparison between the respondent's opera­tions in Blenheim and the U.C.O. operations in those locations, or to determine whether the U.C.O.'s operations included a flour mill, feed mill, feed warehouse, or seed cleaning mill. (It may be, as suggested by Company counsel, that this Board has jurisdiction over the U.C.O.'s Cottam and Oldcastle operations, but not over its Windsor operations, by reason of the aforementioned declaration contained in section 43(1) of the C.G.A. It is unnecessary for purposes of this decision to express any view concerning that matter, which is not before us in these proceedings and could not, in any event, be determined on the basis of the very limited evidence which has been adduced concerning those operations.)

17. Having regard to all of the evidence and the submissions of the parties, we find that the respondent's Blenheim operations include a feed mill, a feed warehouse, and a number of seed

cleaning mills, which, by virtue of section 45 of the C.W.B.A., have been declared by Parliament tQ be works for the general advantage of Canada. In view of the provisions of sections 91(29) and 9~(13) of the Constitution Act, those mills and warehouses fall within federal jurisdiction. It is unnecessary to determine whether any part of the respondent's Blenheim operations is not a feed mill, feed warehouse, or seed cleaning mill within the meaning of section 45 of the C. W.B.A., as we are satisfied on the totality of the evidence that all of the respondent's Blenheim operations (with the possible exception of its popcorn mill which, as noted above, is a very minor part of its business) are an integral part of the aforementioned works which have been declared to be for the general advantage of Canada.

18. For the foregoing reasons, we have concluded that we do not have jurisdiction to hear and determine this application. Accordingly, the application is hereby dismissed.