United Brotherhood of Carpenters and Joiners of America, Local 785 v. Toronto Dominion Bank, 1992 CanLII 6777

[1992] OLRB Rep. October 1123

3178-91-G United Brotherhood of Carpenters and Joiners of America, Local 785, Applicant V. Toronto Dominion Bank, Respondent

BEFORE: Jules Bloch, Vice-Chair, and Board Members F. B. Reaume and B. L. Armstrong.

APPEARANCES: N. L. Jesin and K. Ball for the applicant; D. K. Gray, G. W. Giorno, A. W. Bell, D. Moore, A. I. Mollica, H. Buchinueller and E. de Haan for the respondent.

DECISION OF THE BOARD; October 30, 1992

1. This is a referral of a grievance pursuant to section 126 of the Ontario Labour Relations Act. ("the Act"). The applicant Local Union 785 of the United Brotherhood of Carpenters and Joiners of America ("carpenters") alleges that the respondent, Toronto-Dominion Bank ("T.D."), failed to abide by certain conditions of the I.C.I. provincial ~collective agreement. Prior to commencing the hearing, T.D. advised the Board that it was raising a preliminary argument, that the Board was without jurisdiction to entertain the grievance, because the construction of banks was within the sphere of federal labour relations. Counsel for T.D. argued that all certifi­cates issued by the Board to the carpenters, in respect of employment with T.D. were of no force in law. The issue of estoppel was not raised before the panel and consequently the panel has not made any rulings with respect to that issue.

2. Elzo Dehaan and Allen Bell testified on behalf of T.D. The parties were afforded full opportunity to call witnesses and present evidence in this matter. The evidence is essentially not in dispute, however its characterization is very different depending on the parties' differing points of view.

3. T.D. is engaged in the business of "banking" under authority of the Bank Act, R.S.C. 1985. c. B-1, as amended ("Bank Act"). This legislation was enacted by the Parliament of Canada pursuant to its exclusive constitutional authority under section 91(15) of the British North America Act. The Bank Act, empowers all the chartered banks in Canada to "acquire, hold, maintain, improve, develop, repair, service, lease, dispose of or otherwise deal with real property ...." Mr. Dehaan, T.D.'s manager of real estate in the Ontario south west division, testified that the Bank owned 66% of its branches free-hold. The decision to build a branch is a company wide decision which involves many of the bank's divisions. T. D. only builds for itself, and does not use its resources for general contracting assignments. On all T.D. projects, the person in charge is T.D.'s in-house chief architect. Essentially, all decisions about construction, including blue print approval, are done in-house. T.D. stipulated that during all phases of planning and construction, the Bank was under the provincial legislative authority in respect of the Planning Act, the Building Code and municipal taxes.

4. The parties made extensive submissions before the panel. These submissions were care­fully reviewed. The panel reserved its decision. The parties filed case books with the panel. The citations of the cases referred to by both counsel in argument are reproduced below:

Municipality of Metropolitan Toronto, [1980] O.L.R.B. Rep. Jan. 62

Kinsmen Club of Leamington, 11983] O.L.R.B. Rep. Nov. 1850

Arrow Transfer Company Ltd. (1974), 74 C.L.L.C. 16,130

A.T.M. Automatic Teller Machine Services (1985). 66 B.C.L.R. 378

Bachmeier Diamond and Percussion Drilling Co. Ltd. (1962), 1962 CanLII 309 (SK CA), 35 D.L.R. (2d) 241 (Sask. C.A.)

Bernshine Mobile Maintenance (1985), 1985 CanLII 5507 (FCA), 62 N.R. 209 (Fed. C.A.)

Canada Post Corporation, unreported decision of Fed. C.A. January 28, 1988, file no. A-762-87

Canadian Pacific Railway Co., 11949 CanLII 278 (UK JCPC), 1950] A.C. 122 (P.C.)

Cargitt Grain Company Limited (1983), 51 N.R. 183 (Fed. C.A.)

General Enterprises Ltd. (1977), 77 C.L.L.C. 16,084 (C.L.R.B.)

Highway Truck Service Ltd. (1985), 62 N.R. 218 (Fed. CA.)

Johnston Terminals Limited, [1982] 2 Can. L.B.R. 446 (C.L.R.B.)

Loomis Messenger Service, [1985] O.L.R.B. Rep. July 1131

Marathon Realty Company Limited, [1978] 1 Can. L.R.B.R. 493 (C.L.R.B.)

Midvalley Construction Limited (1974), 74 C.L.L.C. 16,100 (Alta. Bd.I.R.)

Midvalley Construction Limited (144), 74 C.L.L.C. 14,243 (Alta S.C.)

Montcalm Construction Inc. (1978), 79 C.L.L.C. 14,190 (5CC.)

Northern Electric Co. (1963), 63 C.L.L.C. 15,484 (Ont. H.C.J.)

Northern Telecom Ltd. (No.1) (1979), 79 C.L.L.C. 14,211 (S.C.C.)

Northern Telecom Ltd. (No.2) (1983), 83 C.L.L.C. 14,048(5CC.)

Paul L'Anglais Inc. (1983), 83 C.L.L.C. 14,033 (S.C.C.)

Peter Kiewit Sons Co. Ltd., [1988] O.L.R.B. Rep. May 510

Daniel Piotrowski (1986), 67 di. 19 (C.L.R.B.)

Reimer Express Lines Limited (1987), 69 di. 161 (C.L.R.B.)

Societe Canadienne des Metaux Reynolds Ltec. (1983), 1983 CanLII 2981 (QC CA), 9 D.L.R. (4th) 364 (Que. CA.)

Verrault Navigation Inc. 1985 CanLII 3443 (QC CA), [1985] C.A. 156 (Que. CA.)

Vibration Assessment Limited, 119891 O.L.R.B. Rep. Feb. 223

Waschuk Pipeline Construction Ltd. (1988), 1988 CanLII 3526 (AB QB), 62 Alta. L.R. (2d) 318 (Alta. Q.B.)

I.U.O.E. Local 796 v. Royal Bank of Canada, [1968] O.L.R.B. Rep. (May) 169 (Brown, Archer, Irwin).

Canadian Pioneer Management Ltd. et at. v. Saskatchewan (Labour Relations Board) et at (1980), 107 D.L.R. (3d) I (5CC.)

Bell Canada v. Quebec (Commission de la sante et de la securite du travail) et at. (1988), 1988 CanLII 81 (SCC), 51 D.L.R. (4th) 161 (5CC.)

Alltrans Express Ltd. v. British Columbia (Workers' Compensation Board) et at. (1988), 1988 CanLII 83 (SCC), 51 D.L.R. (4th) 253 (5CC.)

Canadian National Railway Co. v. Courtois et al. (1988), 1988 CanLII 82 (SCC), 51 D.L.R. (4th) 271 (5CC.)

Commission du Salaire Minimum v. Bell Telephone Co. of Canada (1966), 1966 CanLII 1 (SCC), 59 D.L.R. (2d) 145 (5CC.)

Canada (Attorney General) v. St. Hubert Base Teachers' Association (1983), 1983 CanLII 131 (SCC), 1 D.L.R. (4th) 105 (5CC.)

Green's Ambulance v. London and District Service Workers' Union, [1978] O.L.R.B. Rep. (Oct.) 919 (Burkett, Hodges, Wightman)

5. Constitutional law by its very nature is a hair splitting exercise. This sentiment has recently been captured by a decision of this Board. In Canadian Communications Structures Inc., [1992] OLRB Rep. July 777 the Board stated at paragraph 38:

We are cognizant of the respectability of opposing views on matters of constitutional jurisdic­tion. Judges, labour boards and commentators at all levels regularly come to well reasoned, opposite, conclusions on the same facts. Mr. Justice Laskin did not agree with the majority in Construction Montcalm where the construction of a federal airport was found to be within pro­vincial jurisdiction. Mr. Justice Beetz, who wrote the majority decision in Construction Montcalm, did not agree with the majority decisions in Northern Telecom II, and would have found the installers' work to have been provincial. Mr. Justice Dickson, part of the Northern Telecom II majority, found the facts to be close to the line between federal and provincial juris­diction, but apparently not close enough to have the general rule of provincial competence tip the balance, as Mr. Justice Beetz would have had it in his dissent. [To the extent that the facts before us can be described as similarly close to the sometimes permeable constitutional divide, we find the decision of the Supreme Court of Canada in Northern Telecom II to be most persuasive.]

6. In Montcalm, the Supreme Court of Canada had to determine the labour relations juris­diction of a private contractor performing a construction contract for an airport. Beetz J., writing for the majority, reviewed the constitutional framework in these types of cases, at page 25:

The issue must be resolved in the light of established principles the first of which is that Parlia­ment has no authority over labour relations as such nor over the terms of a contract of employ­ment; exclusive provincial competence is the rule: Toronto Electric Commissioners v. Snider, (1925) 1925 CanLII 331 (UK JCPC), AC. 396. 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: In the matter of a reference as to the validity of the Industrial Relations and Disputes Investigation Act [55 CLLC 26 15,223], 1955 CanLII 1 (SCC), 1955 S.C.R. 529 (the Stevedoring case). It follows that 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; 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.

7. Of further assistance is the approach taken by the British Columbia Labour Board in Arrow Transfer. In that case the British Columbia Board had to decide whether persons responsi­ble for vehicle maintenance in a federally related trucking company fell within federal or provincial jurisdiction. The Board, at page 109, stated:

In these and other cases of this genre the Courts have adopted this approach. They 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 or the employment relationship. *

8. The case law points to a dichotomy between an institutional test and a functional test. An institutional test would not review the components which make up a Bank. The court or tribu­nal would simply determine if the enterprise was a bank and then all aspects of the enterprise would be viewed as banking. The functional test asks one to view all the different functions of the enterprise, so that a decision can be made about which functions relate directly or integrally to core banking functions.

9. Counsel for T.D. argued that this was an appropriate case to use an institutional test to determine the labour relations jurisdiction. Counsel made reference to two cases. Canadian Pio­neer Management Ltd. and Royal Bank of Canada review the circumstances under which one would apply an institutional test. In Canadian Pioneer Management Ltd., the majority of the Supreme Court of Canada, held that the functional test was inappropriate to the issue. In that case the court was trying to distinguish between banks and near banks. It was the view of the Court that in those situations it was difficult if not impossible to draw distinctions by using the functional test. This is not so in the case at bar. In Royal Bank of Canada, this Board found that it did not have jurisdiction to certify a unit of stationary engineers employed by the bank at its Ottawa office. The Board found those employees to be integral to the operation and running of a bank and conse­quently within the ambit of the federal jurisdiction.

10. The case at bar involves the construction of banks within the Province of Ontario by T.D.'s own employees. The question the panel must answer is very narrow. Is construction of a bank branch by T.D. an integral part of the banking function? This case is different and distin­guishable from the Royal Bank of Canada case, in that £he Bank's construction employees are not integral to the running of the Bank. During the construction phase, there is no banking going on at the site. Although this is a case that is close to the constitutional dividing line, the Board finds con­struction of a bank building to be a pre-operational task and consequently not integral to the bank­ing function as prescribed by the Constitution Act, 1867. The banking function does not include the building of premises to be used by a bank. It is clear that the framers of the Constitution Act, 1867 were concerned about centralizing banking practices and structures. We do not believe that these concerns relate to the conformity of banking premises. The fact that provincial labour relations laws impact on the building of bank premises does not in any way affect the economic or other banking regulation of the banking sector. There is no doubt that the Bank Act, R.S.C. 1985, c. B­1, as amended, confers on banks the power to build banks; however, this legislation does not con­fer federal constitutional authority with respect to labour relations of those engaged in the con­struction of what, after all, is simply a building.

11. For all of the foregoing reasons, the Board finds that it has jurisdiction to deal with this grievance. The Registrar is directed to re-list this matter for hearing.