Amalgamated Transit Union Local 616 v. Transit Windsor, 1993 CanLII 7885

[1993] OLRB Rep. July 698

0845-93-M Amalgamated Transit Union Local 616, Trade Union v. Transit Windsor, Employer

BEFORE: R. D. Howe, Vice-Chair, and Board Members J. A. Ronson and J. Redshaw.

DECISION OF THE BOARD; July 15, 1993

1. This is a reference from the Minister of Labour to the Board under section 109 of the Labour Relations Act, the material part of which provides:

109(1) The Minister may refer to the Board any question which in his or her opinion relates to the exercise of his or her powers under this Act and the Board shall report its decision on the question.

2. The reference reads as follows:

THE LABOUR RELATIONS ACT

IN THE MATITER OF REFERENCE FROM THE MINISTER TO

THE ONTARIO LABOUR RELATIONS BOARD PURSUANT

TO SECTION 109 OF THE ACT REGARDING A REQUEST BY A

UNION FOR THE APPOINTMENT OF A CONCILIATION OFFICER

PURSUANT TO SECTION 16 OF THE ACT

AMALGAMATED TRANSIT UNION LOCAL 616

("THE UNION")

• AND -

TRANSIT WINDSOR

("THE COMPANY")

Pursuant to Section 16 of the Act, the Union requested the appointment of a Concili­ation Officer in respect of the Company. The Company objects to this request.

2. The Company objects on the basis that the Minister of Labour is without jurisdiction to appoint a conciliation officer as Transit Windsor is a federal work or undertaking.

3. A labour affairs officer from Labour Canada has advised the Company that it falls within federal jurisdiction for labour relations purposes.

4. The Union asserts that the labour relations matters between the parties fall within provincial jurisdiction and that the parties have operated under provincial jurisdiction for the past eighty years.

5. The Minister is of the opinion that the circumstances surrounding the request by the Union raise a question as to his authority to appoint a Conciliation Officer. Accord­ingly, the following question is referred to the Board for its advice:

Do the labour relations matters between the parties fall within federal or provincial jurisdiction?

8. Attached are the copies of the following documents:

Request for the Appointment of a Conciliation Officer dated April 12, 1993

Collective Agreement dated March 1, 1991

Letters dated April 20 and 27, 1993 from Patrick F. Milloy (Company counsel)

Letter dated May 13, 1993 from Ronald E. Seguin (Union President)

"Bob Mackenzie"

Bob Mackenzie

MPP Hamilton East

Minister of Labour

[Paragraphs 6 and 7, which specify the parties' names and addresses, have been omitted]

3. A hearing in respect of this matter was scheduled for July 7, 1993. However, that hear­ing did not proceed in view of the parties' agreement which was set forth as follows in a letter dated July 6, 1993 from Company counsel to the Board's Registrar:

Further to my telephone conversation with you earlier this afternoon, I write to confirm, on behalf of our client, Transit Windsor, that the parties herein are agreed as follows:

1. The hearing scheduled to be held on July 7, 1993, is to be cancelled.

2. The O.L.R.B. is to proceed to determine whether Transit Windsor is or is not a "fed­eral work, undertaking or business" as defined in the Canada Labour Code and hence, whether Transit Windsor is subject to the provisions of the Canada Labour Code or is subject to the provisions of the Ontario Labour Relations Act; and

3. In making the determination referred to in paragraph 2 above, the O.L.R.B. is to proceed without a formal hearing and is to decide the matter on the material filed in this matter by Transit Windsor.

Please note that a copy of this letter is being sent to Mr. Falzone, Union counsel, who has authorized us to advise you of his and his client's agreement to the foregoing.

We had prepared a Book of Authorities for use at the hearing on July 7 next. We will forward three copies of the Book of Authorities under separate cover by ordinary mail for the use of and the assistance of the panel which will consider this matter. We will send a copy to Mr. Falzone as well.

The parties are anxious to have a determination made herein as soon as possible and we request that you communicate this fact to the panel which will be requested to consider this matter.

We await receipt of a Decision from the O.L.R.B.

Yours very truly,

"Leonard P. Kavanaugh"

4. The material filed in this matter by the Company consists of the following statement of representations, the four documents listed in Appendix "A" thereto, and a Book of Authorities containing sections 91 and 92 of the Constitution Act, 1867, sections 1-4 of the Canada Labour Code, and Re Ottawa-Carleton Regional Transit Commission and Amalgamated Transit Union, Local 729 et al. (1983), 1983 CanLII 1936 (ON CA), 44 O.R. (2d) 560 (C.A.):

STATEMENT OF REPRESENTATIONS OF TRANSIT WINDSOR

1. Transit Windsor, formerly the Sandwich, Windsor & Amherstburg Railway Com­pany, is a corporation incorporated pursuant to the provisions of the Sandwich, Wind­sor & Amherstburg Railway Act, 1930, 5. 0. 1930, c. 17, as amended.

2. In 1970, the above Act was amended and the right to operate a public transportation system in the City of Windsor was vested in the City of Windsor. By City of Windsor By-Law for [sic] 4676, dated October 29, 1973, Transit Windsor was authorized to "operate and manage a system of public transportation in the City of Windsor." In addition, Transit Windsor continued to operate charter buses to various locations in the United States and provided bus transportation to special events in the Detroit area, such as Detroit Tiger and Red Wing games.

3. On February 21, 1979, and in anticipation of the fact that Transit Windsor would commence operating a daily bus service to Detroit, Michigan through the Detroit-Windsor Tunnel effective in 1981, Transit Windsor incorporated a corporation known as Windsor Chartabus Inc. That corporation was and remains a wholly owned subsid­iary of Transit Windsor.

4. By an Agreement dated May 20, 1980, between Transit Windsor and Windsor Char­tabus Inc., Transit Windsor transferred and assigned to Windsor Chartabus Inc. its extra-provincial bus operations and assigned to Windsor Chartabus Inc. Transit Windsor's Ontario Ministry of Transportation Extra-Provincial Operating Licence and Interstate Commerce Commission (U.S.) Operating Certificate.

5. Thereafter, Windsor Chartabus Inc. operated the extra-provincial bus service which was previously operated by Transit Windsor, except for charter bus service into the United States, which service continues to be operated by Transit Windsor directly.

6. Windsor Chartabus Inc. does not have any employees or premises separate from those of Transit Windsor. Windsor Chartabus Inc. is managed by Transit Windsor and utilizes Transit Windsor bus operators for all of its operations.

7. Transit Windsor and Windsor Chartabus Inc. maintain a common fleet of some 100 buses, all of which carry the Transit Windsor logo. In fact, Windsor Chartabus Inc. owns 18 of these buses. Notwithstanding the different ownership, buses owned by Windsor Chartabus Inc. are used for Transit Windsor operations in the City of Wind­sor and for extra-provincial service. Buses owned by Transit Windsor are utilized in the same manner.

8. At the present time, Windsor Chartabus Inc. operates a regularly scheduled tunnel bus service comprised of approximately 235 round trips per week. On a daily basis, five to six of Transit Windsor's 149 bus operators are assigned to operate the tunnel bus service.

9. Windsor Chartabus Inc. also provides bus transportation to the Detroit area for spe­cial events (Tigers and Red Wings games, the Grand Prix, Autoshow, etc.). This spe­cial events service involves approximately 1500 round trips into United States each year.

10. The extra-provincial service referred to above takes up approximately 3% of the total yearly Transit Windsor bus operator working hours.

11. By letter dated June 24, 1992, Labour Canada advised Transit Windsor that it had determined that both Transit Windsor and Windsor Chartabus Inc. are federal works or undertakings.

12. The Union has been the bargaining agent for Transit Windsor's bus operators, mechanics and certain related classifications for in excess of 60 years. In addition, by way of a Certificate dated August 26, 1991, the Ontario Labour Relations Board cer­tified the Union as the bargaining agent for certain of Transit Windsor's full-time office and clerical employees. Transit Windsor and the Union were parties to a Col­lective Agreement covering the terms and conditions of employment of the above employees, which Collective Agreement had a term of operation from March 1, 1991 to and including February 28, 1993.

13. By letter dated September 16, 1992, Transit Windsor advised the Union that "[I]f we are and remain a Federal undertaking, our position is that, under the Canada Labour Code, we currently have a Collective Agreement and that the Amalgamated Transit Union, Local 616, is the bargaining agent.

14. By Certificate dated May 11, 1993, the Ontario Labour Relations Board certified the Union as a bargaining agent for certain of Transit Windsor's part-time office and cler­ical employees.

15. The parties are currently engaged in negotiations to replace the expired Collective Agreement referred to above.

16. A list of the relevant documents being submitted with these Representations is set out at Appendix "A" attached hereto.

17. It is the position of Transit Windsor that the undertaking operated by it falls within federal jurisdiction pursuant to Section 92(10) of the Constitution Act, 1867, as a transportation system that extends beyond the limits of the Province of Ontario. It is further submitted that to fall within federal jurisdiction, a transportation system need only provide regular and continuous service beyond the limits of a province.

18. It is the position of Transit Windsor that as it provides regular and continuous service beyond the limits of the Province of Ontario, its labour relations are governed by the provisions of the Canada Labour Code and as such, the Minister of Labour for Ontario has no jurisdiction to appoint a Conciliation Officer pursuant to the provi­sions of the Ontario Labour Relations Act.

19. It is also the position of Transit Windsor that a hearing is not required in this matter. However, Transit Windsor reserves the right to request a hearing upon review of the materials filed by the Union.

APPENDIX "A"

1. Letters patent and related documents re: Windsor Chartabus Inc.

2. Memorandum of Agreement between Transit Windsor and Windsor Chartabus Inc., dated May 20, 1980.

3. Letter dated June 24, 1992 to Transit Windsor from Labour Canada.

4. Letter dated September 16, 1992 to the Local 616, Amalgamated Transit Union from Transit Windsor.

5. The Union's position regarding the matter is set forth in the following letter dated May 13, 1993 from Ronald E. Seguin, its President/Business Agent, to a Ministry official, which letter constitutes one of the documents attached to the reference:

I have received your letter of May 4th 1993 regarding our request for the appointment of a Con­ciliation Officer to aid Amalgamated Transit Union Local 616 and Transit Windsor and its' [sic] ongoing negotiations for a new Collective Agreement.

Please be advised that our position in regards to this matter has not changed. Amalgamated Transit Union Local 616 has conducted its' [sic] business under Provincial Jurisdiction for the past eighty (80) years. The fact that we filed for assistance under the Ontario Labour Relations Board clearly indicated our position in regards to Jurisdiction.

I trust that this letter addresses the information you have requested and I await a decision with respect to this application.

6. That letter asserts that the Union has conducted its business under provincial jurisdic­tion for the past eighty years. However, as noted above, the parties have agreed that the Board is to decide this matter on the basis of the materials filed by Transit Windsor. Those materials indi­cate that the Union "has been the bargaining agent for Transit Windsor's bus operators, mechanics and certain related classifications for in excess of 60 years", but do not indicate how those bargain­ing rights (which pre-date the existence of the Board) were acquired. They also indicate that the Board issued certificates for certain of the company's full-time and part-time office and clerical employees on August 26, 1991 and May 11, 1993, respectively. However, it appears that this is the first occasion upon which the Board has been expressly called upon to consider whether labour relations matters between these parties fall within provincial or federal jurisdiction.

7. The constitutional law principles germane to this matter, and the leading cases which form the basis of those principles, are duly summarized in the following excerpts from pages 22-2 to 22-18 of Hogg, Constitutional Law of Canada (3rd Ed., 1992):

TRANSPORTATION AND COMMUNICATION

22.1 Distribution of Power

Legislative power over transportation and communication is divided between the federal Parlia­ment and the provincial Legislatures. There is no mention of either transportation or communi­cation in the Constitution Act, 1867, although several modes of transportation and communica­tion are mentioned. The most important of these references occurs in s. 92(10). Section 92(10) is, of course, part of the list of provincial powers. It confers upon the provincial Legislatures the power to make laws in relation to:

Local works and undertakings other than such as are of the following classes:

(a) Lines of steam or other ships, railways, canals, telegraphs, and other works and undertakings connecting the province with any other or others of the provinces, or extending beyond the limits of the province;

(b) Lines of steam ships between the province and any British or foreign country;

(c) Such works as, although wholly 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.

The three listed exceptions from provincial power are heads of federal legislative power by vir­tue of s.91(29), which includes in the federal enumeration those classes of subjects which are expressly excepted from the provincial enumeration....

The essential scheme of s. 92(10) is to divide legislative authority over transportation and com­munication on a territorial basis. The specific references in s. 92(l0)(a) to "lines of steam or other ships, railways, canals, telegraphs" do not allocate those modes of transportation or com­munication unqualifiedly to the federal Parliament. The references must be read in the context of the later reference to "other works and undertakings connecting the province with any other or others of the provinces, or extending beyond the limits of the province", and the whole of paragraph (a) must be read as an exception to the grant of provincial authority over local works and undertakings. The effect is to allocate to the federal Parliament the authority over interprovincial or international shipping lines, railways, canals, telegraphs and other modes of transportation or communication; and to allocate to the provincial Legislatures the authority over intraprovincial shipping lines, railways, canals, telegraphs and other modes of transporta­tion or communication.

22.2 Works and undertakings

Section 92(10)(a) refers to "works and undertakings", while s. 92(10)(c) refers only to "works". This suggests a distinction between the two terms which has usually been ignored, but has occa­sionally been adverted to in the cases. It has been said that a work is a "physical thing", while an undertaking is "not a physical thing, but an arrangement under which ... physical things are used". The term "undertaking" is the one which has been most often invoked in the cases under s. 92(I0)(a), and it seems to be equivalent to "organization" or "enterprise".

23.3 Transportation and communication.

Section 92(10)(a) is confined to works and undertakings involved in transportation or communication. The general phrase "other words or undertakings connecting the province with any other", etc., is to be read ejusdem generis with the specific examples which precede it, and the specific examples are all modes of transportation or communication. The word "connecting" in this con­text is to be confined to connections by transportation or communication.

22.4 Connection with another province

According to s.92(10)(a), an undertaking in a province is within federal jurisdiction if it is an undertaking "connecting the province with any other or others of the provinces, or extending beyond the limits of the province". The courts have held that the connection (or extension) that is contemplated by s.92(10)(a) is an operational connection, and not a merely physical connec­tion...

22.5 Undivided jurisdiction

What is the appropriate classification of a business or group of associated businesses which is engaged in intraprovincial transportation or communication as well as interprovincial (or inter­national) transportation or communication? Does one sever the intraprovincial part from the interprovincial part, and divide legislative jurisdiction accordingly? Or does one look to the dominant characteristic of the business and allocate legislative jurisdiction over the entire busi­ness according to whether the dominant characteristic is intraprovincial or interprovincial? We shall see that neither of these approaches has been adopted by the courts; instead, they have have held that a business which is engaged in a significant amount of continuous and regular interprovincial transportation or communication is wholly within federal jurisdiction.

The courts early rejected the idea of dividing legislative jurisdiction over a single undertaking. In Toronto v. Bell Telephone Co. [[1905] AC. 52], it was held that the Bell Telephone Com­pany was an interprovincial undertaking within s. 92(10)(a). The Privy Council rejected the argument that the company's long-distance business and its local business should be separated for the purpose of allocating legislative jurisdiction. Their lordships held that the company car­ried on "one single undertaking", and that it fell within s.92(l0)(a). Nor did their lordships embark on an inquiry as to which aspect of the company's undertaking was dominant: the local or the long-distance. In fact, at the time of the litigation the company had not actually estab­lished any connections outside Ontario, and so the interprovincial connection, far from being the dominant feature of the business, was no more than a "paper connection". But their lord-ships held that the mere fact that the company's objects "contemplate extension beyond the lim­its of one province" sufficed to stamp the entire undertaking with an interprovincial character.

The same resistance to dual jurisdiction over transportation and communication undertakings is evident in A. -G. Ont. v. Winner [1954 CanLII 289 (UK JCPC), [1954] AC. 541]. The question in that case was whether the province of New Brunswick had regulatory authority over a bus line which operated from the United States through New Brunswick, and into Nova Scotia. The bus line picked up and put down passengers at various points within New Brunswick; and the provincial highway board, purporting to act under statutory authority, sought to regulate (in fact, to prohibit) this part of the bus line's business. The Supreme Court of Canada held that the province could not regulate an interprovincial or international journey, even if it began or ended in New Brunswick, but that the province could regulate the journeys which began and ended in New Brunswick without crossing a provincial border. The Privy Council reversed this holding, denying the province even the regulatory authority over the local journeys. The dual legislative authority contemplated by the Supreme Court would be acceptable only "if there were evidence that Mr. Winner was engaged in two enterprises; one within the Province and the other of a connecting character". As it was, however, the same buses carried both the local and the long-distance passengers: the undertaking was "in fact one and indivisible". Their Lordships therefore relied on the Bell Telephone case to hold that the entire undertaking was within federal jurisdiction.

The Bell Telephone and Winner cases established an important rule, which has been consistently reaffirmed in later cases, that a transportation or communication undertaking is subject to the regulation of only one level of government. Once an undertaking is classified as interprovincial, all of its services, intraprovincial as well as interprovincial, are subject to federal jurisdiction. And, by the same token, once an undertaking is classified as local, all of its services, including any casual or irregular interprovincial services, are subject to provincial regulation. In this way, the courts have avoided the complications of divided regulation of a single undertaking. How­ever, the one-undertaking-one-regulator rule loads all the freight on the initial question of clas­sification (or characterization); everything turns on whether the undertaking is interprovincial or local. As Dickson C.J. commented in the AGT case [1989 CanLII 78 (SCC), [1989] 2 S.C.R. 225, 257], the question of jurisdiction is "an all or nothing affair".

22.6 Continuous and regular service

In Winner, as in Bell Telephone, their lordships did not inquire into the volume in dollars or pas­senger miles of Winner's local New Brunswick business, or make any attempt to compare it with the interprovincial and international business. In later cases, where this kind of information has been available, the courts have not shrunk from the implication of Winner, and especially Bell Telephone, that an interprovincial connection need not be the major part of the undertaking's activity in order to bring the undertaking within s. 92(10)(a). So long as the interprovincial ser­vices are a "continuous and regular" part of the undertaking's operations, the undertaking will be classified as interprovincial.

A good example of the "continuous and regular" rule is Re Ottawa-Carleton Regional Transit Commission [(1983) 1983 CanLII 1936 (ON CA), 44 OR. (2d) 560 (CA.)]. In that case, a municipal transit system serving the Ottawa area in Ontario operated some bus routes between Ottawa and Hull in Quebec. The bus routes to and from Quebec accounted for less than one per cent of the total distance tra­velled by the system's vehicles, and they carried only about three per cent of the system's pas­sengers. This interprovincial service, although small in relation to the local service, was regu­larly scheduled, and the Ontario Court of Appeal held that it was "continuous and regular". Therefore, the Court concluded that the transit system was an interprovincial undertaking, which meant that its labour relations (among other things) came within federal jurisdiction.

In the Ottawa-Carleton case, the interprovincial service was part of the transit system's regularly scheduled bus service. This supported the finding that the interprovincial service was "continu­ous and regular". In the trucking business, there is typically no published schedule or other pre­determined timetable: hauls are made as and when customers call for them. Even in this situa­tion, Ontario courts have been willing to find that a small proportion of interprovincial business satisfied the "continuous and regular" rule. In Re Tank Truck Transport [[19601 O.R. 497 (H.C.); affd. without written reasons 1963 CanLII 46 (SCC), [1963] 1 OR. 272 (C.A.)], it was held that a trucking com­pany came within s.92(l0)(a), although 94 per cent of its trips were confined to the province and only six per cent were to points outside the province. McLennan J. of the Ontario High Court, whose decision was affirmed by the Court of Appeal, held that the interprovincial connections were "continuous and regular". In that case, there were interprovincial hauls to be made nearly every day. Tank Truck was followed in the Liquid Cargo case [(1965] 1964 CanLII 162 (ON HCJ), 1 O.R. 84 (H.C.)], where another trucking business was held to be within s. 92(l0)(a), although its interprovincial busi­ness comprised only 1.6 per cent of its trips and ten per cent of its mileage. Haines J. of the Ontario High Court held that the "continuous and regular" test was satisfied, despite the fact that as much as two to three weeks could go by between interprovincial hauls.

If the continuous and regular standard is not met, and the interprovincial service is held to be merely casual, then the undertaking will be classified as local (intraprovincial), which will place its activity within provincial regulatory jurisdiction. For example, in Agence Maritime v. Canada Labour Relations Board [1969 CanLII 109 (CSC), [1969] S.C.R. 851)], vessels plying coastal ports within Quebec made three trips outside the province over a period of two years. The shipping company was held to be within provincial labour relations jurisdiction.

There is one qualification which must be made to the rule that "continuous and regular" inter-provincial service constitutes an interprovincial connection within the meaning of s. 92(10)(a). The rule will not apply to a carrier who artificially organizes its business so as to acquire an interprovincial connection, for example, by unnecessarily detouring across a provincial border or by unnecessarily locating a terminal just across a border. Such a "subterfuge" or "camou­flage" will be disregarded by the courts in determining whether or not the undertaking is really interprovincial. As the Privy Council said in Winner: "The question is whether in truth and in fact there is an internal activity prolonged over the border in order to enable the owner to evade provincial jurisdiction or whether in pith and substance it is interprovincial". This is, of course, the familiar colourability doctrine applied to interprovincial undertakings.

22.7 Related undertakings.

(a) Common ownership

The decisions in Bell Telephone, Winner, Ottawa-Carleton, Tank Truck and Liquid Cargo were each premised on the finding that the company (or individual) was engaged in one indivisible undertaking. But a company may engage in more than one undertaking, in which case that com­pany's operations may become subject to dual legislative authority. The fact that various busi­ness operations are carried on by a single proprietor does not foreclose inquiry as to whether or not those operations consist of more than one undertaking for constitutional purposes. It is the degree to which the operations are integrated in a functional or business sense that will deter­mine whether they constitute one undertaking or not.

The inconclusiveness of ownership works in both directions. Just as one proprietor may own and operate two separate undertakings, so two (or more) proprietors may own and operate different parts of a single undertaking. A business which, regarded by itself, is entirely local may be so closely tied into another business which is interprovincial that the two businesses will be classi­fied as forming a single interprovincial undertaking. There are two situations in which a local undertaking will be treated for constitutional purposes as part of a separately-owned interpro­vincial undertaking. One (common management) is where the two undertakings are managed in common as a single enterprise. The other (dependency) is when the interprovincial undertaking is dependent on the local undertaking for the performance of an essential part of the interpro­vincial transportation or communications services....

22.9 Transportation by land

Legislative jurisdiction over transportation by land depends upon the principles explained in the previous sections of this chapter. Jurisdiction over trains, buses, trucks, taxis, limousines, pipe­lines, and electricity transmission lines depends primarily on whether they are operated as part of an interprovincial (or international) undertaking, in which case jurisdiction is federal under s.92(l0)(a), or whether they are operated as part of an intraprovincial undertaking, in which case jurisdiction is provincial under s.92(10)(c).

8. Applying those principles to the facts of the instant case leads the Board to conclude that labour relations matters between the Union and the Company fall within federal rather than provincial jurisdiction, for the following reasons.

9. It is apparent from the facts set forth above that the operations of Transit Windsor and its wholly owned subsidiary, Windsor Chartabus Inc., are highly integrated. Windsor Chartabus Inc. does not have any employees or premises separate from those of Transit Windsor. It is man­aged by Transit Windsor and utilizes Transit Windsor bus operators for all of its operations. Tran­sit Windsor and Windsor Chartabus Inc. maintain a common fleet of one hundred buses, all of which carry the Transit Windsor logo. Although Windsor Chartabus Inc. owns eighteen of those buses, the buses owned by Windsor Chartabus Inc. are used for Transit Windsor operations in the City of Windsor and for extra-provincial service. The same is true of buses owned by Transit Wind­sor. Thus, it is clear that Transit Windsor and Windsor Chartabus Inc. are engaged in a single indi­visible undertaking (and that they could appropriately be declared to constitute a single employer, pursuant to section 1(4) of the Labour Relations Act, if they fell within the ambit of provincial jurisdiction for labour relations purposes).

10. Although the bulk of the undertaking's bus transportation services are intraprovincial,

extra-provincial bus transportation services are also a continuous and regular part of the undertak­ing's operations. As noted above, those operations include regularly scheduled bus service between Windsor, Ontario and Detroit, Michigan, through the Detroit-Windsor Tunnel, involving approximately 235 round trips per week and five or six of Transit Windsor's 149 bus operators. The undertaking's operations also include approximately 1500 bus transportation round trips each year between Windsor and the Detroit area for special events such as Detroit Tigers and Detroit Red Wings games, the Grand Prix, and the Autoshow. The undertaking also provides charter bus ser­vice into the United States.

10. Although the aforementioned extra-provincial services take up only about 3% of the total yearly Transit Windsor bus operators' working hours, they are clearly a "continuous and reg­ular" part of the undertaking's operations. In this regard, there are no material distinctions between the instant case and the Ottawa Regional Transit Commission case, supra, in which the Ontario Court of Appeal held that although the bus routes operated by the Commission between Ottawa and Hull involved less than one per cent of the total distance travelled by the system's vehi­cles and carried only about three per cent of the system's passengers, that regularly scheduled interprovincial service was "continuous and regular". Thus, we are compelled by the applicable constitutional jurisprudence to conclude that the transit system operated by the Company (through Transit Windsor and its wholly owned subsidiary, Windsor Chartabus Inc.) is an undertaking whose labour relations fall within federal rather than provincial jurisdiction.

11. For the foregoing reasons, the Board hereby advises the Minister that the labour rela­tions matters between the parties fall within federal jurisdiction.