Teamsters Local Union No. 419 v. Browning-Ferris Industries Ltd., 1993 CanLII 7908

[1993] OLRB REP. OCTOBER 933

0066-93-R; 0067-93-R; 1016-93-U Teamsters Local Union No. 419, Applicant v. Browning-Ferris Industries Ltd., Responding Party

BEFORE: Janice Johnston, Vice-Chair, and Board Members D. A. MacDonald and F. G. Theobald.

APPFARANCES: N. L. Jesin, Jim O'Donnell and Doug Power for the applicant; Ray Werry for the responding party.

DECISION OF THE BOARD; October 12, 1993

1. Board Files No. 0066-93-R and 0067-93-R are applications for certification and Board File No. 1016-93-U deals with a complaint pursuant to section 91 of the Ontario Labour Relations Act (the "Act").

2. The responding party, Browning-Ferris Industries Ltd. ("BFI") has raised an objection to the constitutional jurisdiction of this Board to deal with the applications for certification. The responding party submits that it is engaged in an international transportation business which con­nects Ontario to the United States within the meaning of section 92(10)(a) of the British North America Act (the "B.N.A. Act"). The responding party suggests therefore that its labour relations are exclusively within the legislative competence of the Parliament of Canada and cannot be regu­lated in that regard by the Ontario Labour Relations Act. Section 92(l0)(a) provides as follows:

3. (10) 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;

3. BFI is a common carrier and is engaged in the haulage of waste. Waste is collected in the Toronto area and approximately 90% of it is hauled to various locations in the United States (the "U.S.A.") for disposal. However, some waste is disposed of in Ontario. BFI holds a licence from the Ministry of Transportation and the Ministry of the Environment which allows it to trans­port waste on a commercial basis in Ontario. BFI is also licensed to operate in New York State, Ohio, Pennsylvania, Delaware and Michigan.

4. BFI currently has contracts with the Municipality of Metropolitan Toronto, the City of York and the City of Etobicoke for the haulage of waste. Waste is brought in by truck to a transfer station, paper products are sorted out and baled and then all of the waste is loaded onto a long­haul transport truck. Approximately 15% of the waste is transported in BFI equipment, the remainder is transported by three other common carriers under contract with BFI. Employees of BFI transport waste to destinations in the U.S.A. on a daily basis. BFI employs 50-60 drivers and 3 of those drivers go to the U.S.A. daily. It is clear that BFI is in the business of collecting, hauling, handling and transporting waste.

5. BFI also has a contract with Dupont, under which it collects scrap materials from Dupont distributors in the Toronto area and hauls it to Delaware where it is reprocessed into reus­able components. The evidence is not clear what percentage of its total business the Dupont con­tract makes up, but it is clear that materials are hauled on a regular basis for Dupont. BFI also has contracts to haul international waste, which is waste generated on airplane flights, from the airport and medical waste. The international waste has to be incinerated, and as there is currently no incinerator in Ontario, it has to be hauled to the United States. BFI hauls the medical waste and the international waste in its own vehicles.

6. The waste, while it is in transport, is still the responsibility of the generator. For this reason, the generators of the waste, who are the customers of BFI, want to ensure that the waste is picked up, transported and disposed of in an appropriate fashion. Although BFI normally makes the decision with regard to the disposal of the waste, legislation dictates that some of it must be dis­posed of in a certain fashion (i.e., the international waste) and occasionally the customer tells BFI where to dispose of the waste. The majority of the solid waste transported to the United States by BFI is disposed of in dump sites owned by BFI and other sites owned by another company that BFI is a part-owner of.

7. BFI is not engaged in industrial or sewage system cleaning, managing hazardous sub­stances or handling environmental emergencies. It does not offer hazardous waste management programs, consulting services for the internal management of hazardous waste and in-house plan­ning of emergency measures, nor does it provide services for restoring contaminated sites and recy­cling certain products. It is engaged in the operation of an international waste transportation and disposal business.

8. Counsel on behalf of BFI took the position that it was in the transportation business as its core undertaking is the transportation and haulage of waste. BFI is a common carrier and as such falls within the ambit of section 92(10)(a) of the B.N.A. Act. In anticipation of the applicant's argument that BFI "owned" the garbage and was as such transporting its own product, counsel reminded the Board that the generator of the garbage was responsible for it. Counsel suggested that nobody owns garbage as nobody wants it and it is not a product, but if anyone owned the gar­bage, it was the generator. Counsel also pointed to the Dupont contract as evidence that BFI was engaged as a common carrier, as in that situation Dupont never ceased to own the product BFI was transporting. Counsel referred the Board to Ottor Freightways Limited, [1975] OLRB Rep. Jan. 1, Keytours Inc., [1986] OLRB Rep. July 979, Ottawa-Carleton Regional Transit Commission v. Amalgamated Transit Union Local 279, et al, (1983) 84 CLLC 1225, Re Tank Truck Transport Limited, 1960 CanLII 120 (ON HCJ), 25 D.L.R. (2d) 161, and Liquid Cargo Lines Limited, (1965) 1964 CanLII 162 (ON HCJ), 1 O.R. 84 in support of his contention that the case before us falls under federal jurisdiction.

9. Counsel for the applicant, Teamsters Local Union No. 419 ("the union") argued that BFI was a waste management company and a local undertaking. Counsel argued that just because BFI transports waste across the border does not change it from being a waste management com­pany. Although BFI is a common carrier, they are not told by the customer where to deliver "the goods", and once BFI picks up the product it is BFI's responsibility to deal with it. Counsel referred the Board to Humpty Dumpty Foods Limited, [1979] OLRB Rep. Apr. 315, Dominion Dairies Limited, [1978] OLRB Rep. Dec. 1083, and Catalano Produce Limited, [1975] OLRB Rep. Oct. 743 in support of his argument that BFI was like a multi-national company transporting its own product, as in this case they take their waste to their facilities or dump sites. Counsel pointed out that normally a customer owns a product at both ends and the common carrier just moves it. In this case, the customer never wants to see it again and BFI keeps the waste. Therefore, counsel took the position that BFI is a local work that happens to have a transportation aspect. In counsel's opinion, the core of the business is the management and disposal of waste and the transportation of it is just one part. Counsel asked the Board to find that BFI is in the waste management busi­ness, a local activity, and not in the transportation business. In support of his argument that BFI was a waste management company and that it was a local undertaking, counsel referred the Board to a Canada Labour Relations Board case, The Syndicat Sani Mobile Outaouais and Sani Mobile S. V.0. Inc., [1991] 2 Can. LRBR 125. In conclusion, counsel suggested that the Board should hear this case as it falls within our constitutional jurisdiction.

10. In addition to the cases already noted, counsel for the union referred the Board to Fleetwide, [1986] OLRB Rep. Sept. 1216, Westburne Industrial Enterprises Limited, [1984] OLRB Rep. Oct. 1525, and Etna Foods of Windsor Limited, [1987] OLRB Rep. Feb. 210.

11. Cases of this nature must by necessity turn on the facts peculiar to each case. After hav­ing carefully reviewed the evidence and the submissions of counsel, we conclude that BFI is in essence a transportation company engaged in the trucking of waste or recyclable materials from points in Ontario to points in the United States. Nothing turns on whether or not the business of BFI is characterized as "waste management". However, what is crucial to our determination is an assessment of what business BFI is actually engaged in. The label applied to it is not important. In the Sani Mobile case, supra, the Canada Labour Relations Board concluded that the purpose of the company in question was to offer services for managing and cleaning industrial waste and sewer systems and handling environmental emergencies. In the Board's opinion in that case, any trans­portation activities engaged in by Sani Mobile were subsidiary to its other normal and habitual activities. Although Sani Mobile was characterized as a waste management company and the same label could be applied to BFI, clearly the two companies are engaged in different aspects of the waste management business. The primary function of BFI is the transportation of waste materials.

12. It is helpful at this point to refer to the Board's comments in the Dominion Dairies Limited case, [1978] OLRB Rep. Dec. 1083:

13. This Board can only exercise jurisdiction which is lawfully conferred upon it by the Legisla­ture. Prima facie labour relations fall within the legislative competence of the province as being within the enumerated jurisdictional head of property and civil rights within section 92(13) of the British North America Act. (Toronto Electric Commissioners v. Snider [1925] 1925 CanLII 331 (UK JCPC), 2 D.L.R. 5 (P.C.)). The labour relations of any federal work, undertaking or business are, however, within the exclusive jurisdiction of the Parliament of Canada and are regulated under section 108 of the Canada Labour Code (R.S.C. 1970, cL-i, re-enacted by S.C. 1972, c. 18, si). The heading of federal undertakings material to this application is found in section 92(10)(a) of the British North America Act which provides:

14. In each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subject next herein-after enumerated; that is to say,­

15. Local Works and Undertakings other than such as are of the following Classes:­

(a) Lines of Steam and 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;

That section of the British North America Act and its interpretation by the courts require the Board to carefully examine the nature of the business or undertaking engaged in by the respon­dent. If the respondent's business is within the definition of section 92(10)(a) of the BNA Act then its labour relations are exclusively regulated under the Canada Labour Code.

6. The words of section 92(10)(a) have been interpreted as applying only to "means of inter-pro­vincial communications" (C. P.R. v. Attorney-General of British Columbia [1950] 1949 CanLII 278 (UK JCPC), 1 D.L.R. 721 (P.C.)). The fact that a business extends beyond a province will not mean that the operations of such a business will come within federal jurisdiction unless the business involves transportation or communication. In the C.P.R. case (supra), Lord Reid stated:

"There are many companies beside the appellant whose businesses extend over all or most of the Provinces. It was not and could not be suggested that the Parliament of Canada could regulate the hours of work of employees of all such companies." (p.727).

7. When a company carries on a single undertaking which is fairly characterized as inter-provin­cial communications or transportation it is well settled that its activities are regulated by federal jurisdiction within section 92(10)(a) of the British North America Act, (Attorney-General of Ontario v. Winner 1954 CanLII 289 (UK JCPC), [1954] A.C. 541 (P.C.)). The characterization of the undertaking is not, of course, an "all or nothing" proposition. The courts have recognized that a company may be engaged in more than one undertaking and that certain aspects of its business may be regulated federally while other aspects fall within provincial jurisdiction. In the C.P.R. case the Judicial Committee of the Privy Council determined that although the Empress Hotel in Victoria was owned and operated by the Canadian Pacific Railway, the operation of the hotel was sufficiently distinct and unrelated to the corporation's railroading endeavours as to be subject to provincial regulation of the hours of work of the hotel's employees. Counsel for the respondent submits that the severability doctrine enunciated in the C. P.R. case applies in the instant case. He argues that the trucking and delivery component of the respondent's business are sufficiently separate from its manufacturing activity that the labour relations of employees engaged in truck­ing and delivery are exclusively within federal jurisdiction.

8. In the past this Board has been required to determine whether a manufacturing operation with trucking facilities would be held to be one undertaking and, if so, whether it would be sub­ject to provincial or federal regulation. When a company operates as a common carrier and its business takes it beyond provincial boundaries its labour relations are exclusively under federal jurisdiction. (Re Tank Truck Transport Ltd. (1960) 1960 CanLII 120 (ON HCJ), 25 D.L.R. (2d) 161 (Ont. H. Ct.)). Where, however, a company is not a common carrier and the essence of its business is manufacturing or processing, the undertaking is within the constitutional jurisdiction of the province for the pur­poses of regulating its labour relations, notwithstanding that the goods manufactured or pro­cessed by the company are sometimes sold outside the province and that the company's delivery facilities extend that far. In other words, where the activity is essentially one of manufacturing and where the manufacture and delivery of goods are integrated activities which are part and parcel of the company's total undertaking, the labour relations of all employees of the company fall within provincial jurisdiction. (Win. R. Barnes Company, Ltd. [1967] OLRB Rep. Sept. 566; Domtar Limited Trucking Division [1970] OLRB Rep. July 495; Crane Carrier Canada Limited [1970] OLRB Rep. Sept. 665; Compagnie Miron Ltee. [1972] OLRB Rep. Dec. 1034 and [1973] OLRB Rep. Jan. 61; Mason Windows Limited [1973] OLRB Rep. Oct. 547; F.B.I. Foods Ltd. [1975] OLRB Rep. June 522; Catalano Produce Ltd. [1975] OLRB Rep. Oct. 743). In the instant case, therefore, the issue is whether the trucking and delivery aspect of the respondent's business is sufficiently integrated with its food processing activity as to form part of one undertaking or whether it is severable from the manufacturing component so as to be sub­ject to federal regulation.

9. We cannot accept counsel for the union's argument that simply because BFI disposes of the waste material on dump sites that it owns, that this brings it in line with those cases in which the Board found that the business in question was not transportation as the business consisted of the transportation of the company's own products and goods (see Humpty Dumpty, supra, Catalano Produce, supra, and Dominion Dairies, supra). For economic reasons, SF1 disposes of the waste on sites that it owns. It is under no obligation to do so. There is no evidence to support a conclusion that the part of BFI which is the subject of these applications for certification is in the waste disposal business. In addition, the evidence is clear that the generator of the garbage, gener­ally BFI's clients, are responsible for it. Thus, BFI is transporting materials which are the responsi­bility of their clients. The cases referred to (Humpty Dumpty Foods, supra, Dominion Dairies, supra, and Catalano Produce, supra) are distinguishable on this basis. However, even if we were to conclude that BFI "owned" the waste it transports, clearly in its contract with Dupont, BFI is act­ing as a common carrier and is transporting goods on behalf of another company.

10. There are two grounds upon which an undertaking may be found to be a federal one pursuant to section 92(10)(a) of the B.N.A. Act. These two approaches are summarized as follows in the Ottawa-Carleton Regional Transit Commission case (supra):

There seems to be two lines of cases which have considered this section. The first are those cases in which the undertaking before the court carried on a business within the transportation indus­try with operations extending into another province or connecting with another province. The courts in those cases were dealing with trucking firms, bus lines and railways. See, for example, Attorney General for Ontario et a! v. Winner et al., 1954 CanLII 289 (UK JCPC), [1954] AC. 541 (P.C.); Regina v. Toronto Magistrates, Ex Parte Tank Truck Transport Ltd., 1960 CanLII 120 (ON HCJ), [1960] OR. 497; aff'd [1963] OR. 272; Regina v. Cooksville Magistrates Court; Ex Parte Liquid Cargo Lines Ltd., [65 CLLC ¶16,023] 1964 CanLII 162 (ON HCJ), [1965] 1 OR. 84. It is this line of authorities which should direct the result in this case.

The second line of cases which have considered this head of s. 92 are those in which the court was required to determine the essential nature of an operation or undertaking. These cases, for the most part, evolved from a situation where a federal undertaking required the services of an entity which was purely local or provincial in nature in order to carry out certain aspects of its operations within the province. Examples of this line of case are Montcalm Construction, supra, Northern Telecom Ltd. v. Communications Workers of Canada et al, [79 CLLC ¶14,121] [1980] 1 1979 CanLII 3 (SCC), 5CR. 115, 98 D.L.R. (3d) 1 and Northern Telecom Canada Ltd. et a! v. Communications Workers of Canada et a!, [83 CLLC ¶14,048] (1983), 1983 CanLII 25 (SCC), 147 D.L.R. (3d) 1 (5.C.C.).

In the case before us, the first approach was the one relied upon by BFI.

15. The test to be utilized to determine whether or not a particular business is one which falls within section 92(10)(a) was set out in the Ottawa-Carleton Regional Transit Commission case, supra. After making the observation that labour relations is prima facie within the jurisdiction of the provincial legislatures, the Court went on to say that in assessing whether or not a business fell within section 92(10)(a) and was to be federally regulated, that the crucial issue was whether or not the undertaking "connects Ontario with any other province or extends beyond the provincial limits of Ontario in such a way as to fall within the section". The Court also went on to reject a quantita­tive approach (i.e., one which relies upon an assessment of the percentage of the business that is extra-provincial) and stated:

In my view the quantitative approach should not be adopted. Rather, the determination of the essential issue as to whether the undertaking connects provinces should be based upon the conti­nuity and regularity of the connecting operation or extra-provincial business.

Thus, the key issues to be determined are whether the responding party's business (regardless of what it is called) is an undertaking connecting the province with points outside the province and, if so, whether that extra-provincial "connecting" is done on a continuous and regular basis. The per­centage of the such extra-provincial activity is not relevant in that a quantitative approach has been rejected by the courts (as set out above) and this Board (see the Otter Transport case and Keytours case, supra).

16. As already noted, BFI is a common carrier whose core or primary function is to trans­port waste materials. The evidence is clear that on a regular and continuous basis, it transports waste materials for several cities and municipalities and recyclable materials for Dupont to destina­tions in the U.S.A. It is not clear what percentage of its total business this involves, but it is clear that it is done on a regular and continuous basis. Having reached these conclusions, there is no rea­son to deviate from the long line of cases which have found that companies engaged as common carriers in an undertaking which connects the Province of Ontario with other provinces or coun­tries, fall within federal jurisdiction (see Otter Freightways Limited, Ottawa-Carleton Regional Transit Commission, and the cases referred to in those decisions).

17. Accordingly, the applications for certification and the unfair labour practice complaint are dismissed.

18. There is one further matter which must be dealt with. The applicant, by letter dated July 20, 1993 wrote to the Board, enclosing further documentary evidence which it sought to put before the Board. There is no reason to believe that this evidence could not have been available, with the exercise of due diligence, and provided to the Board at the hearing on July 7,1993. Coun­sel for the responding party has objected to the Board considering the document provided and sug­gests that the actions of counsel, in submitting the document, are improper. We are not prepared to take the document provided to us by counsel for the applicant into consideration. It could and should have been made available at the hearing and properly submitted into evidence. This was not done and we are not prepared to reopen the hearing to consider it.