Ontario Public Service Employees Union v. Air-Dale Limited

[1991] OLRB Rep. March 283

2449-90-R Ontario Public Service Employees Union, Applicant v. Air-Dale Lim­ited, Respondent v. Group of Employees, Objectors

BEFORE: Robert D. Howe, Vice-Chair, and Board Members D. A. MacDonald and P. V. Grasso.

APPEARANCES: David Wright and Sherry Currie for the applicant; Terrence O'Connell and Michael Restoule for the respondent; Ian F. Gold and Brian St. Germain for the objectors.

DECISION OF THE BOARD; March 4, 1991

1. This is an application for certification.

2. The Board finds that the applicant is a trade union within the meaning of section l(l)(p) of the Labour Relations Act.

3. Through discussions with a Board Officer, the parties reached partial agreement with respect to the description and composition of the bargaining unit. The language upon which they have agreed is "all employees of the respondent working at or out of Sault Ste. Marie and Tim­mins, save and except the chief pilot, the chief flight attendant, persons above the rank of chief pilot and chief flight attendant, office staff, and persons regularly employed for not more than twenty-four (24) hours per week". It is the respondent's position that dispatchers should be excluded from the bargaining unit on the basis of lack of community of interest, and that the classi­fications of check pilot and base captain should also be excluded from the bargaining unit (and thus replace the classification of chief pilot as the base exclusion for pilots) on the grounds that they exercise managerial functions. The applicant, on the other hand, contends that check pilots, base captains, and dispatchers should all be included in the bargaining unit. The parties are in agree­ment, for purposes of clarity, that "dispatchers are not office staff'.

4. In addition to the documentary evidence of membership filed by the applicant in sup­port of this application, there were filed with the Board three petitions in opposition to the applica­tion. The Board generally takes such petitions into account in deciding whether to exercise its dis­cretion under section 7(2) of the Act to order a representation vote notwithstanding documentary evidence of membership which demonstrates that more than fifty-five per cent of the employees in the bargaining unit are "members" within the meaning of section 1(1)(l) of the Act. In this case, however, even if the petitions are entirely voluntary, the applicant will still have the unequivocal support of more than fifty-five per cent of the employees in the bargaining unit (regardless of whether the aforementioned disputed classifications are included or excluded). Accordingly, it is unnecessary to undertake the inquiry (into the origination of the petitions and the manner in which each of the signatures on them was obtained) contemplated by section 73 of the Board's Rules of Procedure since, in the circumstances of this case, the Board would not be prepared to exercise its discretion under section 7(2) of the Act to direct the taking of a representation vote, even if the petitions were found to be entirely voluntary.

5. In a letter dated February 2, 1991, Stephen R. Daniel, who represented the objectors at the January 31, 1991 meeting with the Board Officer, raised a number of matters regarding this application and the organizing campaign which preceded it. However, Mr. Daniel was not in atten­dance at the February 7, 1991 hearing of this matter and Ian F. Gold, who served as spokesperson for the objectors at that hearing, advised us that the objectors did not intend to pursue before the Board any of the matters raised in that letter. Accordingly, it is neither necessary nor appropriate for the Board to comment upon any of those matters.

6. If the respondent's operations fall within provincial (constitutional) jurisdiction for labour relations purposes, it would be appropriate for the Board to appoint a Board Officer to enquire into the aforementioned disputes concerning the description and composition of the bar­gaining unit, and for the Board to exercise its discretion under section 6(2) of the Act to certify the applicant (on an interim basis) as bargaining agent for all employees of the respondent working at or out of Sault Ste. Marie and Timmins, save and except the chief pilot, the chief flight attendant, persons above the rank of chief pilot and chief flight attendant, office staff, persons regularly employed for not more than twenty-four (24) hours per week, and pending the final determination of the matters in dispute, excluding as well dispatchers, check pilots, and base captains.

7. To assist the Board in determining whether or not it has jurisdiction in respect of this matter, the parties agreed upon the following facts:

Air-Dale Limited ("Air-Dale") is a wholly owned subsidiary of the Ontario Northland Transportation Commission ("Ontario Northland"), and Air-Dale is an Ontario business corporation. Ontario Northland is a Crown agency in the Province of Ontario. Ontario Northland acquired all of the outstanding and issued shares of Air-Dale in November of 1988 by a share purchase agreement. Air-Dale is licenced by Transport Canada under the Aeronautics Act and Regulations to fly scheduled air service. Prior to 1988, Air-Dale was an independent contractor of Ontario Northland operating a scheduled air service. Ontario Northland is the owner of the registered trade mark "norOntair". Ontario Northland leases two Dash-8 aircraft and four Twin Otter aircraft to Air-Dale. Ontario Northland also provides scheduled air service via Twin Otter aircraft in northwestern Ontario, and these sched­uled air services are contracted out to an independent contractor (which is presently Bearskin Lake Air Service Limited). These services are provided by two Twin Otter aircraft owned by Ontario Northland and leased to the independent contractor. Peter Dyment is the President of Ontario Northland and also the President of Air-Dale. The Commissioners of Ontario North­land are appointed by Order-in-Council and are presently seven in number (the Chairman plus six Commissioners). These Commissioners are also iden­tical in name and number to the Directors of Air-Dale. Ontario Northland, under the trade mark "norOntair", provides air service by two Dash-8 (37 passenger) aircraft, six Twin Otter (19 passenger) aircraft, and one Navaho Chieftain. It leases two Dash-8 aircraft and four Twin Otter aircraft to Air-Dale, which is licensed by Transport Canada under the Aeronautics Act and Regulations to fly these aircraft. NorOntair provides air service to twenty­ three points in Ontario and one point in Manitoba (Winnipeg). Air-Dale provides air service to eighteen of these points (including Winnipeg), and air service to the other five points in northwestern Ontario is provided by Bear­skin Lake Air Service Limited.

8. On the agreement of the parties, a copy of Ontario Northland's 1989 Annual Report was submitted to the Board (and entered as an exhibit) to provide background information on Ontario Northland and its air services. A copy of the norOntair timetable (effective October 28, 1990) was also entered as an exhibit on the agreement of the parties.

9. The Board received oral evidence from Dave Weber, who was called as a witness by the applicant. Mr. Weber has been employed by Air-Dale as a pilot and check pilot for sixteen and a half years. The respondent and the objectors elected to neither cross-examine him nor call any other witnesses. Thus, we find the following additional facts to have been established by his uncon­tradicted testimony. Air-Dale's only major asset is the aforementioned licence from Transport Canada. The maintenance of the planes operated by Air-Dale is contracted out to Sky Services. The hangar is owned by Ontario Northland. The equipment used to maintain the planes is owned by either Sky Services or Ontario Northland. Parts are purchased through Ontario Northland, as are office supplies. Although Air-Dale has a free hand to order small items, all major purchases must be approved by Ontario Northland. After conferring with Air-Dale's pilots and crew mem­bers, Air-Dale's chief pilot takes their salary and wage proposals to Ontario Northland for approval. Thus, the salaries and wages for all of Air-Dale's pilots and crew members are ultimately set by Ontario Northland.

10. Ontario Northland's aforementioned 1989 Annual Report (the "Report") includes the following "President's Report":

Throughout almost 90 years of service, Ontario Northland has been the predominant supplier of essential transportation and communication services across the province's vast northern terri­tory. In 1989 we created new Development and Tourism departments to enable the company to take a high-profile leadership position in both of these fields.

Our progress in Development has been exciting. Construction will start on a new rail/bus termi­nal in Cochrane with a small but high-quality hotel component in 1990. We've also begun work on a new bus terminal/office complex building in Kirkland Lake. Downtown development on land formerly occupied by the ONR rail yard is proceeding in Timmins and we are examining opportunities for various projects in Moosonee. In 1990 we will officially open our new, state-of-the-art rail/bus terminal in North Bay. Several other projects are in the early study stages.

Although our rail, bus, marine and air services have always figured prominently in our northern tourism industry, the creation of our "Be My Guest In Northern Ontario" marketing and pro­motion campaign has generated considerable consumer awareness and consideration for our unique northern tourist experiences. Though the campaign is targeted specifically toward Chi­Cheemaun, Nindawayma and Chief Commanda marine services, Northlander and Polar Bear Express Services and various elements of norOntair and ON Bus products, we have worked closely with our regional tourism associations to promote all of the North's tourist amenities.

In telecommunications, we're ahead of schedule with the laying of the fibre optic cable between Timmins and North Bay and we continue to provide quality communication services with state­-of-the-art equipment.

In 1989 our shops in North Bay continued the construction of new rail cars turning out three passenger cars and the first of three electric auxiliary power units.

An early retirement program was developed to take effect in the spring of 1990 to trim our work force to face leaner and more challenging conditions for the rest of the decade and respond to the expected loss of iron ore pellet traffic. Opportunities will be created to train and promote younger staff to help Ontario Northland take advantage of new and exciting commercial ven­tures for the future.

Respectfully submitted,

"P. A. Dyment"

Peter A. Dyment

President and CEO

11. Separate pages in the Report are devoted to telecommunications, development, rail ser­vices, air services, marine services, and transport services. The air services page contains the fol­lowing information:

Airline service in the North continues to change radically after de-regulation. Carriers, trying to establish new routes and schedules, initiated, changed or suspended services constantly and the rate of change accelerated with the fortunes of the northern economy.

norOntair was established in 1973 to ensure a basic level of scheduled air service was provided in the North. We continue to fill this role despite the fact that some of our service communities cannot generate commercially-viable passenger loads.

Though some subsidized service is, and will continue to be a fact, our goal is to maximize reve­nues over our entire route structure and reduce the need for support to the absolute minimum. In 1989 we substantially reduced the passenger subsidy rate.

To achieve our objective, schedules to many communities were improved during the year and Dash-8 service extended to as many destinations as possible, including Fort Frances and Winni­peg. We're now competing effectively with business-class fares on Dash-8 routes and we've added a wide range of discount fares throughout the norOntair system and joint discount fares with Canadian Airlines and Air Canada carriers. As a result of these initiatives, norOntair recorded the highest-ever annual revenue of over $9-million.

Since the demand for business air travel is tied so closely to the north's resource-based econ­omy, the outlook is uncertain. However, we are developing new initiatives aimed at the high-end hunting and fishing tourist market with plans for co-marketing ventures with major outfit­ters. Test projects for specific target markets in conjunction with the "Be My Guest in Northern Ontario" campaign indicate potential for the generation of new tourism business from foreign sources.

12. The financial report section of the Report indicates that in 1989, Ontario Northland had total assets of $280,488,000, of which norOntair aircraft constituted $15,943,000 and other norOn­tair property constituted $3,940,000. It also indicates that Ontario Northland's total operating rev­enues for 1989 were $142,573,000, of which air services sales revenue constituted $10,203,000 and Government reimbursement (pursuant to a Memorandum of Understanding between Ontario Northland and the Ministry of Northern Development and Mines, which designates certain Ontario Northland operations as non-commercial) constituted $4,5000,000. The deduction of oper­ating expenses of $12,674,000 from the air services total revenue of $14,703,000 yielded an income of $2,029,000 from air services, which represents approximately 14% of Ontario Northland's total operating income of $14,136,000.

13. Neither the Report nor the norOntair timetable distinguishes between norOntair flights operated by Air-Dale and those operated by Bearskin Lake Air Services Limited. That norOntair services are to some extent integrated with those of Air Canada and Canadian Airlines Interna­tional is evident from the norOntair timetable, which lists not only destinations that can be reached by norOntair flights alone, but also numerous destinations which can be reached via norOntair flight connections with Air Canada and Canadian Airlines International flights. The timetable also indicates that reservations on norOntair flights can be made through Air Canada and Canadian Airlines International.

14. Counsel for the applicant acknowledged that, as a result of many years of constitutional caselaw, aeronautics is a matter of federal jurisdiction and, accordingly, the regulation of labour relations in respect of aeronautics is presumptively also a matter of federal jurisdiction. However, he submitted that the respondent is an integrated and integral component of Ontario Northland's larger single undertaking, which provides transportation, communication, and tourism services in northern Ontario. In support of that contention, counsel referred the Board to the opening para­graph of the above-quoted President's Report, which describes Ontario Northland as "the predom­inant supplier of essential transportation and communication services across the province's vast northern territory". He also referred the Board to the third paragraph of the President's Report, as well as to a number of the other facts set forth above. Thus, although he expressly indicated that he was not asking the Board to find Ontario Northland to be the employer of the employees affected by this application, it was his contention that Air-Dale is a non-severable and non-distinct portion of the indivisible provincial undertaking of Ontario Northland, a provincial Crown agency whose operations (he submits) should all be found to fall within provincial jurisdiction for labour relations purposes. In support of that position, applicant's counsel referred (by way of analogy) to National Protective Service Company Limited, [1987] OLRB Rep. Feb. 245; Fleetwide, [1986] OLRB Rep. Sept. 1216; Westburne Industrial Enterprises Ltd., [1984] OLRB Rep. Oct. 1525; and Dominion Dairies Limited, [1978] OLRB Rep. Dec. 1083. He also sought to distinguish the Court of Appeal for Ontario judgment dated January 28, 1991 in the Ontario Hydro case (in which the majority set aside the June 12, 1989 Divisional Court decision quashing the decision of the Board (differently constituted) in Ontario Hydro, [1988] OLRB Rep. Feb. 187), on the grounds that the argument which he is asking the Board to adopt in these proceedings does not appear to have been made in that case.

15. The respondent elected not to present any argument as to the Board's jurisdiction, and simply took the position that "the decision of jurisdiction rests with the Board". In speaking on behalf of the objectors, Mr. Gold advised the Board that the question of the Board's jurisdiction is "not a major difficulty" with the objectors. Thus, the objectors also elected to take no position on that matter.

16. The regulation of contracts of employment, hours of work, minimum wages, and other aspects of employment law, including labour relations, is generally a matter of "Property and Civil Rights in the Province", within the meaning of section 92(13) of the Constitution Act and, accord­ingly, is generally within the jurisdiction of the provincial legislatures (see Toronto Electric Commission v. Snider, 1925 CanLII 331 (UK JCPC), [1925] 2 D.L.R. 5 (J.C.P.C.); Re Northern Electric Company Limited, 63 CLLC ¶15,484; and Windsor Airline Limousine Services Limited, [1980] OLRB Rep. Feb. 272; application for judicial review dismissed in Re Windsor Airline Limousine Services Ltd. and Ontario Taxi Association 1688 et al. (1981), 1980 CanLII 1897 (ON HCJ), 30 OR. (2d) 732 (Div. Ct.); leave to appeal denied, September 15, 1980). However, the federal Parliament has jurisdiction over the regulation of labour relations and employment in works, undertakings, or businesses that are within its legisla­tive authority (see Re Industrial Relations and Dispute Investigation Act (Can.), 1955 CanLII 1 (SCC), [1955] S.C.R. 529). Thus, there is a sphere of federal labour law jurisdiction in respect of employees of employ­ers who are engaged in enterprises that are within federal jurisdiction, such as those set forth in section 91 and in parts (a), (b), and (c) of section 92(10) of the Constitution Act. Parliament has exercised that jurisdiction by enacting legislation that governs labour relations in various federal

areas of activity. See, for example, the Canada Labour Code, R.S.C. 1985, c. L-2, section 4 of which provides:

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

The Code's section 2 definition of "federal work, undertaking or business" includes, in part (e), "aerodromes, aircraft or a line of air transportation".

17. In Northern Telecom Ltd. v. Communications Workers of Canada et al. (1979), 1979 CanLII 3 (SCC), 98 D.L.R. (3d) 1 (S.C.C.), at page 13, Dickson J. (as he then was) wrote, in part, as follows in deliv­ering the unanimous judgment of the Court:

The best and most succinct statement of the legal principles in this area of labour relations is found in Laskin's Canadibn Constitutional Law, 4th ed. (1975), p. 363:

In the field of employer-employee and labour-management relations, the division of authority between Parliament and provincial legislatures is based on an initial conclu­sion that in so far as such relations have an independent constitutional value they are within provincial competence; and, secondly, in so far as they are merely a facet of particular industries or enterprises their regulation is within the legislative authority of that body which has power to regulate the particular industry or enterprise...

In an elaboration of the foregoing, Mr. Justice Beetz in Montcalm Construction Inc. v. Minimum Wage Com'n et al. (1978), 1978 CanLII 18 (SCC), 93 D.L.R. (3d) 641, [1979] 1 5CR. 754, 25 N.R. 1, set out certain principles which I venture to summarize:

(1) Parliament has no authority over labour relations as such nor over the terms of a contract of employment; exclusive provincial competence is the rule.

(2) By way of exception, however, Parliament may assert exclusive jurisdiction over these mat­ters if it is shown that such jurisdiction is an integral part of its primary competence over some other single federal subject.

(3) Primary federal competence over a given subject can prevent the application of provincial law relating to labour relations and the conditions of employment but only if it is demonstrated that federal authority over these matters is an integral element of such federal competence.

(4) Thus, the regulation of wages to be paid by an undertaking, service or business, and the reg­ulation of its labour relations, being related to an integral part of the operation of the undertak­ing, service or business, are removed from provincial jurisdiction and immune from the effect of provincial law if the undertaking, service or business is a federal one.

(5) The question whether an undertaking, service or business is a federal one depends on the nature of its operation.

(6) In order to determine the nature of the operation, one must look at the normal or habitual activities of the business as those of a 'going concern', without regard for exceptional or casual factors; otherwise, the Constitution could not be applied with any degree of continuity and regu­larity.

See also Windsor Airline Limousine Services Limited, supra, at paragraph 25, in which the Board stated:

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

18. The approach which has generally been adopted by the Courts (and by labour relations boards) in determining constitutional issues regarding the division of powers in respect of labour relations matters was aptly summarized by Paul C. Weiler, as Chairman of the British Columbia Labour Relations Board, in Arrow Transfer Company Ltd., 74 CLLC ¶16430, at 1079-1080:

They [the Courts] begin with the operation which is at the core of the federal undertaking (e.g. railway, shipping, or the postal service). They then look at the particular subsidiary operation engaged in by the employees whose collective bargaining is in question and reach a judgment about the relationship of that operation to the basic federal undertaking. The judges have used a variety of terms to characterize the part the particular operation may play in the over-all enter­prise. It must have a 'vital', “essential', 'integral', 'important', or Intimate' role in the undertak­ing if it is to fall within the jurisdiction of Parliament. As was said earlier, that has been the con­clusion about the relationship of stevedoring to shipping and of mail pick-up to the postal service; the opposite conclusion was reached regarding the relationship of a hotel to the rail­road. In each case the judgment is a functional, practical one about the factual character of the ongoing undertaking and does not turn on technical, legal niceties of the corporate structure of the employment relationship.

In the Northern Telecom case, supra, at page 14, the Supreme Court of Canada described that pas­sage as "a useful statement of the method adopted by the Courts in determining constitutional jurisdiction in labour matters".

19. The constitutional basis of the federal Parliament's jurisdiction over aeronautics is aptly described in the following passages from P.W. Hogg, Constitutional Law of Canada (2nd Ed., 1985), at pp. 495-6:

The subject of aeronautics is not governed by the same principles as apply to other modes of transportation. It started off on a different constitutional track because the first legislation was enacted by the federal Parliament to perform Canada's obligations under an international treaty. In the Aeronautics Reference (1931) [Re. Regulation and Control of Aeronautics in Can., 1931 CanLII 466 (UK JCPC), [1932] AC. 54.], the Privy Council held that the legislation was valid by virtue of the treaty power in s. 132 of the Constitution Act, 1867. The possibility that the peace, order, and good government power might also sustain the legislation was suggested as an alternative basis of jurisdiction. This suggestion became important when the original treaty, which was a "British Empire" treaty to which s. 132 applied, was replaced by a new treaty, which was a '~Canadian" treaty to which s. 132 did not apply; and it became necessary to attribute jurisdiction to some head of power other than the treaty power. In Johannesson v. West St. Paul ([1952] 1 5CR. 292), the Supreme Court of Canada held that the peace, order, and good government power gave the federal Parliament the claimed jurisdiction. This was on the basis that aeronautics was a distinct ~'matter" which satisfied the Canada Temperance test, that is to say, ~'it goes beyond local or provincial concern or interest and must from its inherent nature be the concern of the Dominion as a whole".

Because jurisdiction over aeronautics has been held to depend upon its national dimension or national concern, the question whether a particular undertaking is interprovincial or merely local is probably irrelevant. There are obiter dicta in both the Aeronautics Reference and Johannesson to the effect that federal jurisdiction extends to purely intraprovincial airlines, and this has been distinctly decided by the British Columbia Court of Appeal in Jorgenson v. North Vancouver Magistrates [(1959) 28 W.W.R. 2651. The cases have not articulated any reasons for this result: it has simply been assumed that the stamp of "national concern" draws no distinction between the local and the long-distance operator. There is something to be said for this point of view, although the courts' failure to explain why aeronautics (and no other mode of transporta­tion) is a matter of national concern makes it hard to discern the limits of the doctrine. Perhaps the most plausible reason for subjecting local airlines to the same regime as the interprovincial and international airlines is the fact that both kinds of carriers share the same airspace and ground facilities, so that their operations are necessarily closely integrated. Divided control over navigation and ground facilities would be impossible....

20. The federal Parliament's legislative power over aeronautics does not extend to opera­tions which merely have an incidental aeronautical connection. Thus, in Toronto Auto Parks (Air­port) Limited, [1978] OLRB Rep. July 682, the Board found to be within provincial jurisdiction the labour relations of an employer which operated public parking facilities owned by the Federal Government at Toronto's Pearson International Airport. That employer's employees were respon­sible for operating public parking facilities at the airport, collecting parking fees from users of those facilities, keeping the parking areas and cashier booths clean, and retrieving baggage carts from where they were left by airline passengers in order to reposition them where they would be more readily available to the travelling public. In finding that it had jurisdiction in that case, the Board concluded that although the services provided "a convenience to the travelling public", they were not "sufficiently integral to aeronautics to bring them within federal legislative jurisdiction." A similar conclusion was reached in Windsor Airline Limousine Services Limited, supra, regarding employees of a company providing taxi services to and from various locations including the Wind­sor Airport. In The Tower Company (1961) Ltd., [1979] OLRB Rep. June 583, the Board wrote, in part, as follows in rejecting an employer's contention that the maintenance services which its employees provided to a Federal Government air traffic controller training centre were an integral part of the centre's operation and accordingly fell within federal jurisdiction for labour relations purposes:

21. We are unable to accept the respondent's contention that its operations affected by this appli­cation come within Parliament's jurisdiction over aeronautics. The scope of the federal power over aeronautics does not extend to all operations which have some aeronautical connotation, but only to those which are an integral part of, or necessarily incidental to, actual aerial trans­port. See the Toronto Auto Parks (Airport) Limited case, [1978] OLRB Rep. July 682 and the authorities referred to therein. In our view the maintenance work at the training centre per­formed by the employees who are affected by this application is sufficiently removed from actual aerial transport so as to be outside of the federal jurisdiction over aeronautics....

See also the (as yet unreported) judgment of Abbey J. dated February 25, 1991, in Mark Hyland v. The Crown in Right of Ontario, Ontario Court of Justice (General Division) File No. 158/90.

21. In Wardair Canada (1975) Ltd., [1979] 1 Can LRBR 49, the Canada Labour Relations Board, after reviewing the jurisprudence concerning the roots of the Federal Government's authority over aeronautics and concluding that the words contained in section 2(e) of the Canada Labour Code ("aerodromes, aircraft or a line of air transportation") accurately reflect the estab­lished scope of that authority, wrote in part as follows (at pp. 59-60) in holding that customer rep­resentatives employed by a travel industry wholesaler (Intervac), which operated tours and was wholly owned by the same company that owned Wardair, did not come within federal jurisdiction:

In the field of aeronautics there have been previous industrial relations and related issues of constitutional law considered by the courts. In Murray Hill Limousine Service Limited v. Sinclar Batson et at. (1965), 66 CLLC 14,143 (Que. OB.) porters employed by a company operating buses and taxis were held not to be covered by federal jurisdiction. The difficulty of the judg­ment is portrayed in brief passages from the various judgments. Rinfret, J. in dissent stated:

On the contrary, I believe that the porters' work, the service which they render to the airline companies' clients, is "intimately connected with", "necessarily incidental to the work, undertaking or business" and 'activities" of the airlines, and that, in that capacity, it must be considered as forming an integral part of their operations. In fact they are employees of the latter, the appellant being only an agent for the purpose of hiring and payment of wages.

(p. 540)

Taschereau, J. concluded to the contrary:

For the reasons given by Lord Reid, I come to the conclusion that the work per­formed by the appellant's employer, however useful it might be to airline companies and their passengers, was not an integral part of airline transportation any more than the restaurants, newsstands, hairdresser salons and bars installed in all large airports for the comfort and convenience of passengers. The plaintiffs work therefore falls within provincial jurisdiction.

(p. 542)

And Montgomery, J., also in the majority, stated:

Respondents were not employed by the airlines but by Appellant the principal busi­ness of which is the operation of buses and taxis. In the course of their duties they had no direct contact with aircraft. Their services were not provided for the passengers by the airlines as one of the services incidental to the purchase of a ticket, but the pas­senger engaged these services at his own discretion, he being free if he wished to carry his baggage himself or have it carried by a friend. I do not regard any of these factors as being in themselves conclusive, but taken together they satisfy me that Respon­dents' work did not relate to aeronautics sufficiently closely to bring them outside Provincial jurisdiction.

(pp. 542-3)

In Re Colonial Coach Lines Ltd. et al. and Ontario Highway Transport Board et al. (1967), 1967 CanLII 178 (ON HCJ), 62 D.L.R. (2d) 270 (Ont. H.C.) Donohue, J. held that the federal government's authority over aeronautics did not extend to operation of a limousine service to and from an airport. The con­nection between the celestial and terrestial was too remote for him in this case (appeal dismissed (1967), 1967 CanLII 185 (ON CA), 63 D.L.R. (2d) 198 (Ont. C.A.)). In Re City of Kelowna and Canadian Union of Public Employees Local No. 338 (1974), 1974 CanLII 1160 (BC SC), 42 D.L.R. (3d) 754 (B.C.S.C.) it was held the Canada Labour Code applied to municipal employees engaged in runway maintenance and administrative work related to an airport. In Re Field Aviation Co. Ltd. and International Association of Machinists & Aerospace Workers Local Lodge 1579 (1974), 1974 CanLII 240 (AB SCTD), 45 D.L.R. (3d) 751 (Alta. S.C.) it was held employees engaged in servicing, maintaining, inspecting, modifying, repairing, overhauling and certifying aircraft and parts as airworthy were covered by the Canada Labour Code.

In Butler Aviation of Canada Limited v. International Association of Machinists and Aerospace Workers (1975), 1975 CanLII 2241 (FCA), [1975] F.C. 590 (CA.)); 76 CLLC 14,008 employees engaged in parking, ref­uelling, baggage handling and customer lounge facilities at the Montreal airport were held to be within the federal government's industrial relations jurisdiction. The court stated at pp. 541 and 41 "Obviously there is no clear cur test that can be applied in each instance" to determine if the necessary degree of attachment to the federal sector exists. The pattern of prior decision making reveals that in the field of aeronautics the intended scope of federal government authority is intended to be the core activity of "aerodromes, aircraft or a line of air transportation". A travel industry wholesale such as Intervac is most analogous to a travel agent and federal regula­tion of Intervac, and particularly its industrial relations, is not a necessary incident nor essential to federal government regulation of “aerial navigation". Notwithstanding the sibling relation­ship between Wardair and Intervac they are accepted and treated as having a distinctly different character under the Air Carrier Regulations. It is our judgment that the intended scope of the aeronautics authority does not reach to Intervac and that the industrial relations authority of the federal government is not triggered by Intervac's relationship to the airline travel business or its special working and financial relationship with Wardair, Canada's only exclusive charter carrier.

22. The application of the foregoing principles has also led to the following categories of employees being found to fall within federal jurisdiction over aeronautics: airport security person­nel (National Protective Service Company Limited, supra, and Agence de Securite Fortin Inc.,

[1981] 3 Can LRBR 271 (Que. Lab. Ct.)), ramp attendants employed by a contractor to provide baggage and cargo loading and unloading services for Quebec Air (Quebec-Sol Services Limitee (1981), [1982] 2 Can LRBR 369 (C.L.R.B.)), and employees of an aviation electronics company specializing in the repair and maintenance of avionic electronic black boxes on aircraft and ground based avionic equipment (North Canada Air Ltd. (1979), [1980] 1 Can LRBR 535 (C.L.R.B.)).

23. The public nature of the respondent's owner, Ontario Northland, does not render either of them immune from the application of federal legislation: see, for example, Reference Re Anti­Inflation Act, 1976 CanLII 16 (SCC), [1976] 2 S.C.R. 373, at 429-30; and Her Majesty in Right of Alberta v. Canadian Transport Commission, 1977 CanLII 150 (SCC), [1978] 1 S.C.R. 61, at 72. In the instant case, the operations of the respon­dent fall squarely within the field of aeronautics. Air-Dale is licenced by Transport Canada under the Aeronautics Act (and Regulations) to fly scheduled air service. Pursuant to that licence, it pro­vides air service to seventeen points in Ontario and one point in Manitoba, using aircraft leased to it by Ontario Northland. Air-Dale's employees for whom the applicant seeks bargaining rights are pilots and flight attendants directly involved in supplying aerial transportation services to the pub­lic. The Board is not persuaded that the aeronautical services provided by the respondent are, for purposes of constitutional law, an integral component of a single transportation, communication, and tourism undertaking of Ontario Northland. To the contrary, Air-Dale's operations either con­stitute a distinct aeronautical undertaking in and of themselves, or (more likely) constitute a major component of Ontario Northland's "norOntair" aeronautical undertaking, which is a line of air transportation that falls within the ambit of federal legislative jurisdiction for labour relations pur­poses by virtue of the constitutional jurisprudence described above. This conclusion is consistent with both the majority judgment of Tarnopolsky J.A., with whom Lacourciere J.A. concurred, and with the dissenting judgment of Galligan J.A., in Ontario Hydro, supra, and will not create labour relations problems as the respondent's workforce is already separate from that of Ontario Northland (as well as from that of Bearskin Lake Air Services Limited).

24. For the foregoing reasons, the Board has concluded that the regulation of labour rela­tions in respect of the employees of the respondent to which this application pertains is within fed­eral jurisdiction. Accordingly, the Labour Relations Act does not apply. This application is there­fore dismissed.