United Steelworkers of America v. Windsor Airline Limousine Services Limited, 1999 CanLII 20180

[1999] OLRB REP. NOVEMBER/DECEMBER 1120

3229-97-FC; 3332-97-R United Steelworkers of America, Applicant v. Windsor Air­line Limousine Services Limited 0/a Veteran Cab Company and Capital Cab Com­pany and its Associates, Responding Parties; Elie Sleiman, Randy George, Peter Kelly and Andrew Archer, Applicants v. Retail Wholesale Canada Canadian Service Sector Division of the United Steelworkers of America, United Steelworkers of America, Responding Party v. Windsor Airline Limousine Services Limited 0/a Veteran Cab Company and Capital Cab Company, Intervenors

Constitutional Law - First Contract Arbitration - Termination - Board finding that labour relations of Windsor taxi company engaged in some extra-provincial travel governed provincially and not federally

BEFORE: Pamela A. Chapman, Vice Chair.

APPEARANCES: James K.A. Hayes for the applicant; D. Stephen Jovanovic for the responding parties; Kimberly Michaelis for the applicants in Board file 3332-97-R

DECISION OF THE BOARD; December 20, 1999

1The application in Board file 3229-97-FC is a request that the Board direct the arbitration of a first collective agreement pursuant to section 43 of the Ontario Labour Relations Act, 1995 ("the Act"). Board file 3332-97-R is an application for the termination of the bargaining rights of the applicant ("the union"), which was filed subsequent to the first contract application and has therefore been held in abeyance pending the outcome of the earlier proceeding, by decision of the Board dated January 9, 1998.

2During the course of the hearing of evidence on the request for a first contract direction, the applicants on Board file 3332-97-R ("the objecting employees") raised an objection to the constitutional jurisdiction of the Board to hear and decide either matter. They were joined in this objection by the responding parties ("the employer" or "Windsor Airline Limousine"). Notice of Constitutional Question was delivered to the Attorney Generals of Ontario and of Canada, and the Board subsequently adjourned the first contract proceedings and scheduled hearings in order to hear the submissions of the parties on the jurisdictional dispute. The parties were able to agree on a statement of the constitutional facts on which argument would proceed, and that document, together with certain other documents entered on agreement, was filed with the Board; the parties also filed written argument and books of authority. The Crown chose not to participate in these proceedings and has taken no position on the question of constitutional jurisdiction.

3Having carefully reviewed all of the material filed by the parties, and in particular the various labour board and judicial decisions dealing with the issue of constitutional jurisdiction, I have concluded that the labour relations of the responding parties fall within provincial jurisdiction and that this Board therefore has the jurisdiction to hear and decide the above-captioned applications. My reasons for this conclusion follow.

THE FACTS

4Windsor Airline Limousine owns and operates a computerized dispatch service, serving the City of Windsor and County of Essex under the authority of the City of Windsor Taxi Licensing Commission and By-law 5900. Copies of two licences issued to the limousine service in February 1986 were filed as exhibits: one is an extra-provincial operating licence and the other a public vehicle operating licence

5The employer dispatches taxi services to approximately two hundred taxis operating under its Veteran Cab and Capital Cab banners. The computerized dispatch system of Windsor Airline Limousine handles between 135,000 and 150,000 trips per month, on a daily basis, seven days per week, twenty-four hours per day.

6Call records filed with the Board demonstrated that approximately 18 calls per day are dispatched across the international border into Detroit, for an average of 6,570 trips per year, or approximately 540 calls per month. There are no records on the number of trips into Detroit which are not dispatched, but the parties agreed that the addition of pick-ups might double these figures, for approximately 1080 trips per month. Presuming that the ratio of intra-provincial to extra-provincial travel remains the same as between dispatched and non-dispatched trips, we can conclude that cross-border trips represent less than 1/2% of the total volume of the business of the employer.

7Windsor Airline Limousine's taxi service has exclusive stand arrangements at the City of Windsor Airport, located in the Township of Sandwich South in the County of Essex, at the VIA Rail station located in the City of Windsor, and at the Greyhound Bus Station in the City of Windsor. These stand licences were filed as exhibits. Other vehicles do sometimes attend at these locations without benefit of licence to pick up passengers.

8Windsor Airline transports passengers and their belongings from locations in the City of Windsor and County of Essex and from the City of Windsor Airport, VIA Rail Station and Greyhound Bus Station through the Detroit/Windsor Tunnel and over the Ambassador Bridge to the City of Detroit, other locations in the State of Michigan, and into other states.

9There are approximately four hundred licensed taxi drivers in the City of Windsor; this number ranges upward and downwards, but presently there are 360 drivers licensed. At present, 190 of them have obtained the necessary 1-94 clearance to enter the United States of America with passengers and belongings and furthermore to pick up passengers in the United States to be dropped in Canada. By reason of the North American Free Trade Agreement, Windsor drivers are permitted to enter the United States and drop passengers and to pick up passengers in the United States to be dropped in Canada, but they are not entitled to pick up and drop off passengers within the United States. This is confirmed by a document produced by the INS which was filed as an exhibit. However, actual experience in crossing the border is varied; some customs officials harass drivers and may deny them entry, which leads some drivers to decline U.S. trips.

10Since 1994 the City of Windsor has experienced additional taxi demands from the gambling facilities established at Casino Windsor which are frequented daily by many Michigan residents who may require transportation back into the United States; indeed, it is estimated that 80% of casino visitors are cross-border travellers.

11Windsor Airline has experienced demand for service by Canadian residents travelling to the City of Detroit for the purpose of attending various sporting events at the Joe Louis Arena, Tiger Stadium and Detroit Race Track, as well as cultural events that take place at the Detroit Opera House, the Fox Theatre, Cobo Hall and beyond at Pine Knob and Meadowbrook Hall in the County of Oaldand, located approximately 45 minutes from the tunnel exit. Windsor Transit and shuttle bus services also provide scheduled or unscheduled transportation to many special events in the United States.

12The City of Windsor and Detroit is the centre of the automotive industry in North America and pursuant to the provisions of the Auto Pact, the traffic in automotive parts and personnel between Detroit and Windsor occurs on a daily basis, seven days a week, 24 hours a day. This business activity involves the transfer of automotive personnel regularly from the City of Windsor Airport to manufacturing facilities in the State of Michigan and/or the Metropolitan Detroit Airport, which service is handled on demand by the taxis licensed and operating as Veteran Cab and Capital Cab for Windsor Airline. However, there is no contract to provide scheduled daily service.

13Windsor Airline has a contract with Great Lakes Pilotage to transport pilots to and from the United States on demand. It is also occasionally called upon by Canada Customs to return to the United States persons who have been rejected for entry into Canada.

14By-law 5900, the taxi licensing by-law of the City of Windsor, by agreement with its corresponding authority in the City of Detroit has established fixed cross-border taxicab fares for passengers and freight travelling by taxi to and from the United States and Canada.

15In addition to the transportation of passengers, the company delivers parcels across the international border and has a licence to do so.

16The computer zone map used by dispatchers divides Canadian territory into zones and does not show any zones for the United States. When dispatching calls to the U.S., dispatchers use either zone 202, which corresponds to the entrance of the tunnel, or zone 216, which corresponds to the entrance of the bridge, depending on the location in the U.S. which has been requested.

17The employer, under the style "Canadian Veteran Cab", advertises its "delivery and courier services to all of Ontario and the U.S." in the "taxis" section of the yellow pages of the Windsor Bell Telephone book, but not in the "courier services" section.

18The company has provided cross-border taxi services for at least the last 24 years.

THE CONSTITUTIONAL FRAMEWORK

19The provinces have exclusive authority over labour relations by virtue of section 92(13) of the Constitution Act, 1867 which enumerates property and civil rights as a provincial subject. Section 92(13) provides:

92. In each Province the Legislature may exclusively make Laws in relation to matters coming within the Classes of Subject next hereinafter enumerated; that is to say, —

(13) Property and Civil Rights within the Province.

20In order to establish that an undertaking, service or business falls within the federal jurisdiction, it must be established that section 92(29) of the Constitution Act, 1867 applies. Section 91(29) provides:

91. It shall be Lawful for the Queen, by and with the Advice and Consent of the Senate and the House of Commons, to make Laws for the Peace, Order and Good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces; and for greater Certainty, but not so as to restrict the Generality of the foregoing Terms of the Section, it is hereby declared that (notwithstanding anything in this Act) the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects hereinafter enumerated; that is to say, —

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

21Turning back to the enumeration of classes of subjects included in section 92 of the Constitution Act, 1867, which as noted above includes labour relations pursuant to section 92(13), there is an exception relating to transportation and communication in the following terms:

92. In each Province the Legislature may exclusively make laws in relations to

(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 Undertaltingsconnecting the Provinces with any other or others of the Provinces, or extending beyond the Limits of the Province.

22This constitutional framework is echoed in the Canada Labour Code, which applies only to employees employed by a federal work, undertaking or business (section 4) and which defines a federal work, undertaking or business as including "a railway, canal, telegraph or other work or undertaking connecting any province with any other province, or extending beyond the limits of a province" (section 2(2)(b)).

23It is not disputed that the operations of the employer are a "work or undertaking" related to transportation within the meaning of section 92( l0)(a) of the Constitution Act, 1867. What is in dispute is the extent to which the extra-provincial business of the employer requires it to be federally regulated by virtue of the enumerated exception in section 92(l0)(a), and pursuant to sections 2(2)(b) and (4) of the Canada Labour Code. A discussion of the legal standards which have been applied in making that assessment, and their application to the facts in the present case, will follow.

THE LAW

Early Judicial Decisions

24A detailed and careful analysis of the leading judicial decisions on the jurisdiction of a provincial labour relations board over the labour relations of an employer engaged in interprovincial or international carriage is contained in an early decision of this Board, Maclntyre, v. Teamsters Chauffeurs, Warehousemen, Helpers, Lacal Union No. 91 (1975), 75 CLLR 16,001 (OLRB). Rather than undertaking a similar review, I will reproduce a lengthy excerpt from that case:

6. The jurisdiction of a provincial labour relations board over the labour relations of an employer said to be engaged in an inter-provincial or international carriage has been the subject of a number of court decisions.A.-G. Ont. Etal. V Winner, Winner etal. V S.M.T (Eastern) Ltd., 1954 CanLII 289 (UK JCPC), 1954] 4 D.L.R. 657...; Re Tank Truck Transport Ltd. (1960)...1960 CanLII 120 (ON HCJ), 25 D.L.R. (2d) 161...; R. v. Cooksville Magistrate's Court, Ex. p. Liquid Cargo Lines Ltd 1964 CanLII 162 (ON HCJ), [1965] 1 OR. 84; Regina v. Manitoba Labour Board Ex parte Invictus Ltd (1968), 1967 CanLII 606 (MB QB), 65 D.L.R.(2d) 517; Brewster Transport Co. Ltd. v. Amalgamated Transit Union, Division 1374, an unreported decision of the Alberta Superior Court (Riley, J.), August 18, 1966, and Pac~fic Produce Delivery v. Labour Relations Board of B.C., 1974 CanLII 1106 (BC CA), [1974] 3 W.W.R. 389 (B.C. Court of Appeal). The approach of the courts to the constitutional issue has not been uniform. However, certain fundamental principles appear to be conceded. In order for provincial jurisdiction to be ousted, it must be established that the employer is engaged in a work and undertaking connecting the province with any other or others beyond the limits of the province...

7. It was contended by the respondent union that so long as there is any extension beyond the provincial boundaries or over the international boundary, irrespective of the frequency of occurrence or depth of external penetration, it necessarily follows that the work or undertaking falls within federal jurisdiction. In our view, the cases do not stand for that unqualified proposition. It may be useful to examine each of the six court cases cited above in an attempt to identify the rationale and reconcile the reasoning.

8. In Tank Truck, the Court accepted the employer's contention that the question was not the relative amount of interprovincial, as opposed to extraprovincial, activity but, rather, whether, in fact, there was a "connecting" or "extending" activity. For an activity to connect or extend, McLennan, J. was of the view that its extraprovincial component must be continuous and regular. In so holding, he specifically rejected the union's assertion that the controlling consideration must be the main or primary function of the undertalting measured by volume. In Tank Truck, there was no doubt on the evidence that the extraprovincial carriage, although not regularly scheduled, was both regular and continuous. In addition, it may be noted that it was, in absolute terms, substantial: 630 trips beyond the province in one year. It should also be noted that the Court foresaw situations where carriage or extension beyond the province would not constitute a connecting or extending undertaking. At page 172, D.L.R., McLennan, J. states:

I agree with counsel for the respondent that not every undertaking capable of connecting Provinces or capable of extending beyond the limits of a Province does so in fact. The words "connecting" and "extending" in s.92(l0)(a) must be given some significance. For example a trucking company or a taxicab company talting goods or passengers occasion­ally and at irregular intervals from one Province to another could hardly be said to be an undertaking falling within s.92(JO)(a).(Emphasis added)

9. In Liquid Cargo, Haines, J. adopted the regular and continuous test propounded in Tank Truck. Although only 1.6 per cent of Liquid Cargo's loads were hauled to or from points outside Ontario, the absolute number of such trips was, again, substantial: 636 loads in a period of 18 months. Although expressly approving the Tank Truck test, he goes on to suggest an even broader formula for determining the question of connection or extension. At page 88, he states:

In my view, the fact that many of the applicant's extra-provincial trips are not made at fixed times in accordance with a predetermined schedule does not compel the conclusion that its activity in that regard is not continuous and regular. Viewed from the point of view of the applicant country, it is clear that its customers are provided with extra-provincial service consistently and without interruption whenever they apply to the applicant for such service. The applicant stands ready at any time to engage in hauls outside the boundaries of the Province of Ontario, at the instance of any of its customers, and for that purpose has gone to the pains and expense of acquiring transport pernuts and licences from a number of jurisdictions. Further, the evidence is clear that it has made such trips frequently during the period for which figures have been provided. (Emphasis added)

The suggestions that there is significance to what the company is empowered and prepared to do is, however, at odds with both Tank Truck and Eastern Canada Stevedoring Co. Ltd., 1955 CanLII 1 (SCC), [1955] 3 D.L.R. 721, where it was decided that it is what the company actually does that determines the character of its undertaking. In any event, the underlined portion of the passage from Liquid Cargo quoted above must be read subject to the concluding observation that Liquid Cargo's extraprovincial trips, although not regularly scheduled, were made "frequently" during the relevant period.

10. The rationale for the decision of the Manitoba Queen's Bench in Ex parte Invictus Ltd., sup ra, is somewhat elusive. The company was in the business of transporting general freight and horses. Its intraprovincial business was on a regularly scheduled basis while its extraprovincial business -limited to the transport of horses - was casual and intermittent, undertaken only in response to customer requests. Even so, a substantial dollar value of extraprovincial trade was undertaken, contributing for a single year 5.5 per cent of the company's gross revenue from all sources. The Court adopted the Tank Truck test, apparently accepting the proposition that to have a connecting or extending undertalting, the extraprovincial portion must be regular and continuous. On that facts, however, the Court concluded that the applicant's extraprovincial business was neither regular nor continuous. Moreover, the Court proceeded to propound a further test which appears to be similar, if not identical, to the one advanced by the union, and rejected by the Court, in Tank Truck. At page 529 of the Invictus decision, Matas, J. states:

With respect, I agree with the comment made by McLennan, J., in the Tank Truck case, sup ra, that the words "connecting or extending" in s.92(l0)(a)...must be given some significance. To consider the applicant's extraprovincial business as "regular and continuous" would be stretching the meaning of those words unreasonably.

In constitutional cases, no less than in other cases coming before the Court, it is necessary that the realities of the situation be assessed. The operations of the applicant, when examined from a practical aspect, are in pith and substance provincial in character. The applicant's extraprovincial transport of horses is incidental to what is essentially and basically an intraprovincial business.

13. Can any firm conclusions be drawn from the authorities? All Courts agree that the central question is the meaning to be attributed to the words connecting or extending. The Ontario Courts have held that relative volume (as between interprovincial and extraprovincial activity) is an inappropriate test. Tank Truck states that the extraprovincial business must be regular and continu­ous. Liquid Cargo agrees, emphasizing the frequency of the extraprovincial trips in the particular case and suggesting, obiter, that the mere capacity and readiness to engage in extraprovincial carriage may be sufficient to bring the operation within federal jurisdiction. Invictus, while paying lip-service to the regular and continuous test, concludes that the test cannot be met if the extrapro­vincial business is incidental to the essential and basic interprovincial character of the undertaking...

14. It is apparent that Invictus, Brewster and at least one judge in Pacific Produce place some significance on the main, principle or essential - as opposed to the incidental - aspect of the undertaking in determining whether it is truly extraprovincial in character. Tank Truck, on the other hand, expressly repudiates that distinction, relying, in part, on an inference drawn from Lord Porter's judgment in Winner. At page 170 of Tank Truck McLennan, J. states:

In my opinion the Winner case does not support the contention of counsel for the respondent that the interconnecting operation must be the main function of the undertak­ing to come within s. 92(10)(a). The inference seems to be the other way and to paraphrase Lord Porter's words.. .the only question, apart from a camouflaged local undertaking and as a part of that undertaking does the appellant carry goods beyond the Province so as to connect Ontario and Quebec or extend beyond the limits of Ontario into the United States.

However, the narrow question dealt with by Lord Porter in Winner was whether an undertaking admittedly extending beyond provincial limits could be severed, with the province retaining jurisdiction over the intraprovincial segment alone. On the facts, the Privy Council concluded that Winner's undertalting - a passenger bus line - was one and indivisible. The decision says nothing about the significance, for constitutional purposes, of determining the main or principal nature of a composite undertaking, an incidental, but still indivisible, segment of which extends beyond the limits of a province

25As noted by Chairman Armstrong in the Macintyre decision, there is a certain tension in the early judicial decisions over the appropriate test for determining whether cross-border travel constitutes an "extending" or "connecting" activity within the meaning of section 92(l0)(a) of the Constitution.

26Some of these decisions indisputably take into account the proportion of the operations of the employer which is made up of work beyond the boundaries of the province (indeed they all cite such a measure in their review of the facts). And as stated at paragraph 7 of Macintyre, the cases do not support the notion that ~y interprovincial or international travel, no matter how little, will lead to an ousting of provincial jurisdiction (see for example the quote from Tank Truck cited in paragraph 8 of Maclntrye). At the same time, though, the comments of the Court in Tank Truck appear to constitute a rejection of what has since been called a "qualitative" approach, measuring the relative volume of the employer's intra- and extra- provincial business. As this issue is central to my decision in the instant matter, I will reproduce the exact statement of the Court for later discussion:

.1 think that to connect or extend, that activity must be continuous and regular, but if the facts show that a particular undertaking is continuous is in this case, then it does in fact connect or extend and falls and regular, as the undertaking within the exception in 10(a) regardless of whether it is of greater or less in extent than that which is carried on within the Province. (at page 508, emphasis added)

27A related issue presented by the cases reviewed above is the extent to which the constitu­tional jurisdiction of an allegedly extra-provincial undertaking should be determined by reference to the "pith and substance" of the employer's operations, measured by the relative volume of the cross-border travel or otherwise. This kind of approach seems to have been taken in Invictus and in Brewer Transport Co. Ltd., where the extra-provincial activities were found to be "incidental" to the main business of the employers.

28Finally, these cases deal with the question of whether the extra-provincial travel must be scheduled in order to be considered "regular and continuous", which is also an issue in the present case. This notion is rejected explicitly by the Court in Liquid Cargo, in the excerpt quoted in Maclntrye and reproduced above, and also in Pacific Produce Delivery, where the Court found the company's delivery of produce, while not formally scheduled, to be of such frequency and continuity that it was an extra-provincial undertaking. Indeed, in Liquid Cargo the Court appeared to emphasize that the company was "ready, willing and able" to travel extra-provincially despite the unscheduled nature of its work, which is strong support for the notion that an "on-demand" service may nonetheless require federal regulation. At the same time, though, there was clear evidence in Liquid Cargo of frequent actual trips, which as noted in Maclntrye may reconcile this apparent reliance upon what the company was prepared and/or empowered to do with other statements in the cases that it is what the company actually does that determines the character of the undertaking.

Decisions in the Taxi Industry

29In 1980, this Board made the first ruling on the question of constitutional jurisdiction in the taxi industry, in an application for certification involving these same parties. Both the Board and the Divisional Court held that the taxi services provided by Windsor Airline Limousine Services Limited fell within provincial jurisdiction ( WindsorAirline Limousine, [1980] OLRB Rep. Feb. 272, Re Windsor Airline Limousine v. Ontario TaxiAssociation (1980), 1980 CanLII 1897 (ON HCJ), 117 D.L.R.(3d) 400 (Div.Ct.)). A review of the facts outlined by the Board in its decision demonstrates little factual difference between the operations of the employer then and now: the company held licences to pick up passengers at the Windsor Airport and the railway station which resulted in the transport of passengers beyond the international border; it had contracts to deliver parcels and passengers to locations in Detroit; approximately half of the company's drivers accepted cross-border trips; and this regular cross-border business together with other pickups totalled less than two percent of its total business.

30The first issue considered by the Board in its earlier ruling was whether or not Windsor Airline Limousine fell within federal regulation by virtue of its association with the Windsor Airport, railway station and its involvement in the carriage of mail, all of which are undisputably federal operations. The Board concluded that these aspects of the taxi service's operations did not mean that is was engaged "in connection with" a federal work or undertaking, and this argument has not been repeated in the present proceeding ( Windsor Airline Limousine at paragraphs 27 to 41).

31The Board went on to consider whether or not the taxi service was itself a federal work or undertaking "because it crosses the border in the course of its business on a regular basis" (at paragraph 43) and after a review of numerous cases involving inter-provincial or international carriers reached the following conclusion:

In summary, by all of the above standards the business of veteran Taxi is, in pith and substance, a local business. It is dedicated to the transportation of passengers in the City of Windsor and its vicinity. The fact that its employees may carry passengers of light freight across the adjacent border on an occasional and casual basis does not alter its basic character as a local taxi company. Its marginal involvement with extra-provincial traffic is purely incidental and ancillary to its main function as a municipal service. When the realities of the situation are assessed and the business of Veteran Taxi is examined in an unexaggerated and practical way, the whole of its operation is, in pith and substance, provincial in character. Any service it provides beyond the provincial boundary is incidental to that essential character. To conclude otherwise is to distort the reality.

32The Board's decision was upheld by the Divisional Court, which stated that "(t)he ordinary business of the applicant is intra-provincial. Its extra-provincial business is exceptional" (at page 406).

33These earlier decisions involving the very same parties were called into question by a later ruling by the Ontario Court of Appeal in Re Ottawa Carleton Regional Transit Commission v. Amalgamated Transit Union, Lacal 279 et al. (1983), 1983 CanLII 1936 (ON CA), 44 O.R.(2d) 560 (C.A.). Indeed, the union in the present case acknowledged in its submissions that "the legal test applied in these decisions may have been wrong as suggested by the Court of Appeal in OC Transpo". In these circumstances it was not argued that I should simply defer to the Board's (and the Court's) earlier ruling, despite the fact that there has not been any substantial change in the factual circumstances which were the underpinning of that decision.

34In OC Transpo the Court of Appeal reviewed a decision of the Divisional Court dismissing an application for judicial review of the decision of the Canada Labour Relations Board ("CLRB") that the labour relations of OC Transpo, which provides regularly scheduled bus service within Ottawa-Carleton and also to Hull, Quebec, fell within federal jurisdiction. The labour relations of OC Transpo had long been regulated federally, but the employer sought to apply the provisions of the provincial Inflation Restraint Act, 1982 to limit the wage increases available to its employees in bargaining. The Court dismissed the appeal, concurring with the reasons of the lower court and confirming the jurisdiction of the CLRB. The appellant had relied upon the Divisional Court decision in Windsor Airline Limousine, but the Court rejected the analysis in that case, making the following comments about the merits of a "qualitative" approach to the issue:

I believe the wrong test was applied in that case. A percentage of business test should not govern the determination.

There are difficulties inherent in a quantitative approach. For example, the question must always arise, where should the line be drawn in any particular case? Should the crucial ratio be 80-21, 90-10, 95-5 or 60-40? If a quantitative approach is to be taken, then should a very large corporation with a small but regular extraprovincial business representing 4% of its operations be in a different category from a small concern with the same amount of extraprovincial business but, because of its smaller total operation, the extraprovincial work amounting to 50% of its total? Should the labour relations of the smaller concern be regulated by a different body than those of the larger business? 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. (at page 570)

35It appears that the reasons of the Ontario Labour Relations Board in the Windsor Airline Limousine case were not cited to the Court in OC Transpo; the Court excerpts only the reasons of the Divisional Court, and its comments appear to be limited to the test used by the learned justice. Having carefully reviewed both the Board and Divisional Court decisions in the earlier case, it is fair to say that the analysis of the Divisional Court was actually quite different from the approach taken by Vice-chair M. Picher, and I have concluded that the OC Transpo case cannot therefore be taken as having completely discredited the Board's earlier decision.

36The Court of Appeal in OC Transpo noted that the Divisional Court in Windsor Airline Limousine "decided that it was required to consider the main or predominant business of the taxi company and to base its decision upon that finding" (at page 569). The following quote was reproduced as evidence that this was the ratio of the earlier case:

I find no essential difference between the concept expressed in Winner in terms of "pith and substance" of a commercial undertaking from that expressed in Montcalm where the nature of the operation is, as I read that case, to be elicited from the ordinary activity of the undertaking. As I read Montcalm it requires that on the facts before us we consider the main or predominant business of the undertaking: what in Montcalm is described as its "ordinary" as opposed to its "exceptional" activity. That, in my opinion, satisfies as well the search for the pith and substance of the enterprise.

Thus, it was appropriate in that case to use such terms as "habitual and normal" activities to denote "ordinary" activities whereas it would not be so in this case. The trans-border crossings of applicant were, I think, unquestionably "habitual and normal" but, in terms of the great bulk of its business, they were certainly "exceptional".

The concept of "ordinary" rather than "exceptional" business applied to the facts before us lead, in my opinion, to only one conclusion. The ordinary business of applicant is intraprovincial. Its extraprovincial business is exceptional. The figures adopted by the Board were not challenged. The company's intraprovincial trips outnumbered its trans-border trips by a ratio of some 60 or 70 to 1. (at page 570-571)

37The Court of Appeal, after making the statement disapproving of this test which is repro­duced at paragraph 34 above, went on to review the cases cited by the Divisional Court in Windsor Airline Limousine, including the Supreme Court of Canada decision in Montcalm, and concluded that they were distinguishable and had no application. In the cases like Montcalm where courts had used the "pith and substance" test, employees of an essentially local concern were doing work in connection with a federal work or undertaking, as in Montcalm which was concerned with construction workers working for Quebec companies but assigned to build runways at a federal airport. After reviewing a number of such cases, the Court of Appeal in OC Transpo concluded that:

Such considerations are not appropriate to the conclusion in a case such as this. Here, there is no subsidiary entity involved that is performing work for a federal undertalting. The question in this case is simply whether the operation of a bus line into Quebec on a regularly scheduled basis brings that undertaking within the purview of s.92(l0)(a). (at page 572)

38The Court went on to conclude briefly that:

The facts of this case lead me inevitably to the conclusion that the undertaking of OC Transpo connects Ontario to Quebec on a regularly scheduled basis. It is therefore federal in nature. (at page 572)

39As noted at paragraph 30 above, the Ontario Labour Relations Board first considered the application of a "pith and substance" analysis to the situation in Windsor Airline Limousine in its consideration of the argument of the employer that its contracts with the federal airport authority, the railway station, and for the transfer of mail for CN brought it within federal jurisdiction. It concluded readily, having regard to caselaw concerning "connection" with a federal undertaking, including the Supreme Court decision in Montcalm, that these aspects of the employer's business did not change its essential character as a local taxi company. This part of the Board's reasoning was entirely separate from its consideration of the question of extra-provincial travel; indeed, the airport, railway and postal work which was relied upon by the company in support of this aspect of its argument was primarily work within the boundaries of Ontario (at paragraphs 27 to 41).

40The Board then turned to the second issue, which it described in the following terms:

..whether Veteran Taxi is itself a work or undertaking extending beyond the limits of the province within the meaning of section 92(10(a) of the B.N.A. Act, or, put differently, whether it is a federal work, undertaking or business within the meaning of section 108 of the Canada Labour Code. Does the respondent's business, taken as a whole, and having regard to the fact that it makes trips across the border into the United States, bring it within federal jurisdiction for the regulation of its labour relations?"

41The Board summarized the case in the following way, which is strikingly similar to the situation today:

43. Veteran Taxi submits that no matter how small its extra-provincial business may be as a percentage of its overall business it must be characterized as a federal undertaking because it crosses the border in the course of its business on a regular basis. Given the similarity of Veteran Taxi's service to that provided by cab companies in the cities and towns of Ontario along the Ottawa and St. Lawrence rivers as well as at and near the border points of the Great Lakes, the respondent's argument has far-reaching consequences for the constitutional regulation of labour relations in much of the taxi industry in this province. The union has voiced its concern that the constitutional jurisdiction over cab companies in the province in respect of employment, including minimum wages and the regulation of labour relations, should not be split between federal and provincial law, varying with a taxi companies' proximity to the borders of the province. It submits that taxi operations by their very nature are essentially local and provincial in nature. It maintains that a local taiti service should not be subject to federal regulation when a numerically insignificant proportion of its business is extra-provincial.

44. The facts bearing on this aspect of the application are not in substantial dispute, but they bear reviewing. Ninety-eight percent of veteran Taxi's business is conducted entirely in Ontario, in and around the City of Windsor. Some two percent of its trips take it across the border. The respondent's drivers are not required to accept trips to Detroit, and the evidence establishes that approximately half of them do not.

45. Any service to Detroit provided by Veteran Taxi is on a demand basis. In other words, with the possible exception of the railway mail transfer, none of the respondent's trips to Detroit are on a regular basis analogous to a bus schedule. Veteran Taxi's Airline Limousine will not go to Detroit if no airport passenger presents himself and requests that service. There are no regularly scheduled limousine trips. Similarly the two limousines connecting to the Amtrack Station in Detroit will not go there unless a passenger disembarking from a train so requests. The evidence establishes that it is not uncommon for there to be no takers for either the airport or the railway limousine to Detroit. The respondent's limousine service is in reality not qualitatively different from its general dispatch service to the public: it is another means, though obviously more advantageous than the yellow pages, of being available.

46. The airport limousine service does not tour the downtown Detroit hotels to collect passengers for transportation to the Windsor Airport the way it does in Windsor. Similarly, on those occasions when a passenger does ask the railway station limousine to take him to a destination in Detroit, be it the Amtrack station, a hotel, or any other destination, it does not collect passengers for the return trip. On the whole, therefore, Veteran Taxi does not operate in any way analogous to a two-way international carrier. Its trips across the border are not on a timetable and it has no return passenger service, save the pick up of occasional passengers at the Detroit tunnel waiting room. And, while its Chrysler Account trips are generally performed for the same commercial clients, they too are on an ad hoc, demand basis.

42In considering the appropriate test to be applied in assessing the significance of the employ­er's extra-provincial business, the Board in Windsor Airline Limousine reviewed the same decisions which are discussed above at paragraphs 24 through 28, including the decision of the High Court in Tank Truck. Interestingly, the Board notes that the court in that case "specifically rejected the argument that reference could be had to the relative percentages of intra-provincial and extra-provincial traffic to characterize the trucking business as provincial or federal for labour relations purposes" (at paragraph 52). It went on, however, to quote the same excerpt from Tank Truck as is reproduced in the Macintyre decision, which I repeat here for ease of reference:

not every undertaking capable of connecting provinces or capable of extending beyond the limits of a province does so in fact. The words "connecting" and "extending" in section 92(l0)(a) must be given some significance. For example, a trucking company or taxicab company talting goods or passengers occasionally and at irregular intervals from one province to another could hardly be said to be an undertaking falling within the exception in section 92(l0)(a).

43The Ontario Labour Relations Board in Windsor Airline Limousine went on to quote from the decision in Invictus, which as noted above seems to take an approach quite different from that in Tank Truck. Indeed, the employer in the earlier Windsor case argued that the two cases could not be reconciled. The Board rejected this assertion, making the following comments which illuminate its approach to the appropriate legal test:

55. The foregoing cases establish the principles that the Board must apply to the facts in this case. A' The respondent submits that the decisions of the Courts in Tank Truck and Invictus cannot be reconciled, and that the Board must narrowly apply the reasoning in Tank Truck. According to the respondent we are bound to conclude that, by virtue of the two percent of the respondent's extra-provincial taxi business, It must be characterized as an extending or connecting link within the meaning of section 92(l0)(a) of the B.N.A. Act and be found to be outside the Board's jurisdiction.

56. We do not agree that the Tank Truck and invictus cases are necessarily in conflict as they apply to the case before us. The Court in Tank Truck made specific reference to taxicab companies. In an obiter comment it indicated that a "taxicab company taking goods or passengers occasionally and at irregular intervals from one province to another could hardly be said to be an undertaking failing within the exception in section 92(l0)(a)". Given the irregular and occasional nature of the respondent's trips out of Ontario, the Board is persuaded that the Court may well have been contemplating just such a business as the respondent.

57. Certainly, applying the words of the Court, if veteran Taxi is viewed from the standpoint of the average employee, extra-provincial trips are manifestly occasional and irregular. On the evidence before the Board a driver will carry some fifty passengers in a row locally in Windsor before he is asked to make a trip to Detroit. He may then have another fifty Windsor fares before a similar request is made. Or he may go through a hundred Windsor customers and then receive three requests for Detroit all in a row. Assuming he is among the fifty percent of the drivers who agree to drive to Detroit, over a two-week period he might have four requests for Detroit in one week and none at all in the next. But during the same two weeks he will have had some three hundred trips in the City of Windsor. Surely his extra-provincial work must be regarded as coming occasionally and at irregular intervals, within the meaning of the obiter passage in the Tank Truck case.

58. Counsel for Veteran Taxi submits that the Board should give considerable weight to the absolute number of border crossings made by its fleet of 132 cabs, rather than emphasize percentages. In our view it is not helpful to focus on the absolute number of border crossing that veteran Taxi's fleet of cabs might make in a given day or week. That kind of analysis would lead to a distorted and uneven application of the constitutional law as between large companies such as the respondent's and small cab companies in the same locality. If the respondent crosses over to Detroit thirty times a day, is it to be federally regulated while a much smaller company, with two crossings a week - but having the same percentage of Detroit business - is to be provincially regulated? If that were so different minimum wages and labour codes would apply to large and small taxi companies. Surely a result as disintegrating as that could not have been contemplated or intended by the draftsmen of Confederation. In our view percentages can be the only consistent bench-mark in assessing the true nature of any business with a connecting link.

59. Moreover, we are satisfied that the Court in Tank Truck did not intend the words "regular and continuous" to be mechanically and rigidly interpreted without regard to the realities of each particular case. We are fortified in that view by the following example. Suppose a small, six-cab taxi company operating in the City of Ottawa. It makes two hundred passenger trips per day. All of its daily trips are on the Ontario side of the Ottawa River, save one . By a pre-arranged contact it makes one trip daily to the City of Hull to collect and transport a student to a school in the City of Ottawa. This it does on a "continuous" and "regular" basis. Is it to be supposed that this one daily trip must qualify that taxi business as a federal undertalting, whose industrial relations fall to be regulated along with those of railways and airlines? And if the Hull contract is cancelled, will the Ottawa cab company then revert to the provincial sphere and be governed by different minimum wage laws and a different Labour Relations Act? Whatever may be the law for the trucking industry or buses, we do not believe that this is what the Court would have contemplated by the choice of its words in its obiter passage on taxicabs in the Tank Truck case.

60. Even if we are wrong in this regard, and there is some irreconcilable conflict between the approach taken in Tank Truck and the approach taken in Invictus, we feel that we are bound, after the decision of the Supreme Court of Canada in Montcalm Construction Ltd. to follow the approach enunciated by Beets, J. for the majority and clearly taken by the Court in Invictus. The Board must, to use the words of the Supreme Court of Canada, look to the nature of the respondent's operations. It must look at the normal, or habitual, activities of veteran Taxi viewed as a "going concern" and avoid any distorted conclusion that would flow from giving undue weight and regard to the exceptional factor of the runs to Detroit that amount to two percent of its business, that is provincial in character.

61. In summary, by all of the above standards the business of Veteran Taxi is, in pith and substance, a local business. It is dedicated to the transportation of passengers in the City of Windsor and its vicinity. The fact that its employees may carry passengers of light freight across the adjacent border on an occasional and casual basis does not alter its basic character as a local taxi company. Its marginal involvement with extra-provincial traffic is purely incidental and ancillary to its main function as a municipal service. When the realities of the situation are assessed and the business of Veteran Taxi is examined in an unexaggerated and practical way, the whole of its operation is, in pith and substance, provincial in character. Any service it provides beyond the provincial boundary is incidental to that essential character. To conclude otherwise is to distort the reality.

44Having careful regard to the Board's reasoning, it is clear that it did not simply apply the "pith and substance" test articulated in Montcalm; in fact its statements at paragraph 60 reveal that it was confident that its conclusions were consistent with the caselaw before Montcalm, including the decision in Tank Truck. Moreover, I have concluded that the Board did not simply apply a "quantitative" test to the facts in Windsor Airline Limousine; rather it considered and attempted to reconcile all of the tests adopted in the various court decisions, much as was attempted in Maclntyre, and concluded having regard to the unscheduled nature of the extra-provincial travel, its volume relative to the employer's business inside the province, and the number of trips made by drivers and their frequency, that the extra-provincial carriage undertaken by the company was not "regular and continuous", but rather "irregular and occasional". While the Board may have erred in its interpretation of the relevance of the reasoning of the Supreme Court in Montcalm, and perhaps in its emphasis on relative volume, which will be discussed below, its decision nonetheless contains a useful analysis of the issues which are presented by the instant case.

45The only other decision on constitutional jurisdiction which has been made in the taxi industry considered the travel of Ottawa taxi drivers over the border into Hull, Quebec. In Otttawa Taxi Owners and Broke rsAssociation (1984), 56 DI 73, the Canada Labour Relations Board considered both the Court of Appeal decision in OC Transpo and the decision of the Board in WindsorAirline Limousine, and concluded that the labour relations of the Ottawa taxi companies fell within provincial jurisdiction despite daily interprovincial travel. The facts in that case were as follows: the three companies involved dispatched approximately 15,450 calls per day; out of that number at least 348 per day involved travel into or out of Quebec (which translates to just over 2% of dispatched calls). There were no records on the number of pick-up trips involving interprovincial travel. All of the companies had contracts to maintain stands at various locations in Ottawa which might result in travel into Quebec, including the airport, bus station and train stations. Some drivers went into Quebec fairly often, some seldomly, and some never. There were no scheduled trips or runs to or from either province.

46The Canada Board summarized the appropriate legal approach to the determination of jurisdiction in the following terms:

...the Board has to determine whether the undertaking connects Ontario with Quebec so as to bring it within Federal jurisdiction. Pursuant to the most relevant line of cases, the most recent one being the Ontario Court of Appeal judgment in Re Ottawa-Carleton Regional Transit Commission and Amalgamated Transit Union Local 279 et al. (1983), 1983 CanLII 1936 (ON CA), 44 O.R.(2d) 560...the test that must be applied is a qualitative as opposed to a quantitative one. The determination that must be made is whether there is regular and continuous traffic between the Provinces. The percentage of business test cannot by itself be determinative although can, of course, be useful in determining whether the traffic is regular and continuous. (at page 78, emphasis added)

47The Board reproduced relevant excerpts from the cases discussed above, including Tank Truck, Liquid Cargo, Invictus,and, interestingly, the Ontario Labour Relations Board decision in WindsorAirline Limousine. The Board concluded with this finding, referring again to the earlier Ontario Board decision:

Do the facts before the Board allow us to conclude that the extra-provincial parts of the business covered by the present application are regular and continuous so as to bring it within Federal jurisdiction? On balance we find that they do not. Trips on a daily basis, by some drivers, between the Provinces, cannot, of themselves, result in a characterization that there is a regular and continuous business between the two Provinces. Rather, the characterization that must be given to the trips is occasional, casual or haphazard. No trips are planned, none are scheduled. Some drivers irregularly and occasionally take passengers to Quebec. Even fewer take passengers from Quebec to Ontario. No trips are scheduled; the drivers are at the pleasure, at the beck and call of potential passengers. The situation is not dissimilar to what it was in Windsor Airline Limousine Services Limited, supra, where the business was found by the Ontario Board to fall within provincial jurisdiction.. In dealing with the Windsor case, we concur with counselfor the respondents that the finding of the Ontario Board was based essentially on a qualitative rather than quantitative determination; the percentage of business test was used as an index of continuity and regulariiy.(at pages 80 to 81, emphasis added)

48The Canada Board also distinguished the decision in OC Transpo concluding that the Court placed significant emphasis on the fact that the buses ran into Quebec on a scheduled basis, stating that "the distinction is clear between the regularly scheduled OC Transpo business and the casual, occasional nature of the taxi business as demonstrated to the Board" (at page 82).

49That decision was not reviewed, and as a result the labour relations of taxi companies in Ontario, even in border communities like Windsor and Ottawa, has remained within provincial jurisdic­tion since the first decision almost twenty years ago.

THE DECISION

50This review of the relevant caselaw clearly establishes that the test for determining the constitutional jurisdiction of an undertaking involving extra-provincial carriage is whether or not the work outside the province can be characterized as "regular and continuous" so as to constitute a "connecting" or "extending" undertaking. Just as clearly, though, determining what will meet that test is not capable of simple definition. The conundrum created by the notion of regularity can perhaps be put thus: how regular is regular enough?

51The approaches of labour boards and courts to this area of division of powers litigation, as detailed above, have involved the measure of various aspects of an employer's business, and there has been a certain lack of agreement about which measures ought to govem the decision as to jurisdiction. Having reviewed these cases exhaustively, I would suggest, though, that an element of volume is present in all of the tests which have been invoked. As well, adjudicators have tended to look at the nature of the employer's business, and the role of the extra-provincial work in that business, in assessing whether or not the cross-border work is "regular and continuous".

52The Concise Oxford Dictionary defines regular in the following terms:

Acting, done, recurring, uniformly or calculably in time or manner, habitual, constant, not capri­cious or casual, orderly.

53Continuous is defined as follows:

Uninterrupted in time or sequence.

54One approach to "regular and continuous" would thus be to consider only whether extra-provincial travel occurs in a predictable pattern or at a regular interval, without any consideration of the volume of the work performed. If this standard is applied, any of the cases reviewed in this decision, or cited by the parties, would likely meet the test: in most cases the cross-border travel occurred on a daily basis, and in the taxi cases many times in a day. Indeed, without considering the number of trips, in absolute terms or as a percentage of the employer's work, one might conclude that a single but scheduled annual trip over the border would meet the test (so long as it was continuous in the sense that this pattern would continue indefinitely).

55One could argue, though, that even daily travel is not regular in this sense if it does not occur at predictable intervals. This may be what the adjudicators in the earlier decisions intended by using the terms "casual" and "haphazard" to describe the daily cross-border trips undertaken by some drivers in Ottawa and Windsor: in each of the taxi cases, as in the present one, the extra-provincial business has been entirely unscheduled and occurring only on customer demand. While the employer asserted that the various contracts to carry passengers from the airport, railway and bus stations, and for particular companies, constituted a sort of scheduled service, it is clear that in none of these cases is business guaranteed, or are trips planned to be made at particular times or intervals. The lack of scheduled service is certainly not fatal to a conclusion that extra-provincial travel is regular and continuous, as was stated by the court in Liquid Cargo (and approved in Macintyre at paragraph 9, Acadian Lines Limited at page 46, and Gray Line at page 174). It does distinguish the facts in the present case, though, and in each of the taxi cases, from those considered in OC Transpo, where the court clearly placed significant emphasis on the fact that the bus service into Hull, regardless of the number of trips made and the volume of the interprovincial business relative to that inside the province, was scheduled on a daily basis. Similarly, this Board emphasized the regularly scheduled bus service between Windsor and Detroit, involving approximately 235 round trips per week, in determining that municipal and charter bus services in Windsor fell within federal jurisdiction (Transit Windsor, [1993] OLRB Rep. July 698).

56There does seem to be a consensus in the caselaw that any instance of extra-provincial travel will not instantly require federal regulation (see for example paragraph 7 of the Macintyre decision quoting Tank Truck at page 172), as well as the suggestion that some undefined amount of de minimus extra-provincial business is permissible for a provincial undertaking. How much is permissible is less clear: the standard is defined as the opposite of "regular and continuous" through the reference in Windsor Airline Limousine to "occasional and casual" or in Ottawa Taxi to "occasional, casual or haphazard". The court in Tank Truck described it as "occasionally and at irregular intervals", in its reference to a hypothetical "trucking company or taxicab company" which would proper]y fall within provincial jurisdiction.

57A review of the actual numbers considered in the various decisions provides no more clear guidance than do these phrases. In the two taxi cases the extra-provincial travel was daily: 60 to 70 trips across the border daily, for a total of less than 2% of the employer's business, in the earlier Windsor Airline Limousine decision; and approximately 348 daily dispatches to and from Quebec, constituting a little more than 2% of the total volume of dispatched calls, in the Ottawa Taxi Owners case. As noted above, in both cases the labour relations of the employer were found to fall within provincial jurisdiction.

58In the trucking cases, many fewer trips per day, representing similar volume as a proportion of an employer's business, have resulted in findings of federal jurisdiction. In Tank Truck trucks made approximately 640 trips per year outside of Ontario, which was approximately 6% of the employer's total business, and this was determined to be "regular and continuous". In Liquid Cargo 636 trips per year, representing only 1.6% of the employer's total business, resulted in a finding of federal jurisdic­tion. But in Invictus the extra-provincial transport of horses was found to be neither regular or continuous, despite the fact that 5.5% of the company's revenues were derived from extra-provincial trade.

59Cases involving charter bus services were also cited by the parties. InAcadian Lines Limited (1994), 96 DI 41 (CLRB) buses were chartered to destinations outside the province on a less than daily basis, approximately 120 times per year. All of the employer's scheduled bus services were carried on within the province of Nova Scotia. This extra-provincial charter service represented 1.22% of the total trips completed annually, 3.79% of the total distance travelled, and approximately 3.5% of the employ­er's total revenue. The Canada Labour Relations Board determined that the labour relations of the bus company fell within federal jurisdiction. In The Gray Line of Victoria Ltd. (1989), 77 DI 169 (CLRB), however, only 29 charter bus trips were made outside of the province in a fifteen month period, and the Board concluded that the employer was properly provincially regulated.

60In these cases the decision-makers appear to have taken into account the frequency of the travel, both in absolute terms and also as a measure of the total volume of the employer's business, in assessing whether or not the extra-provincial work can be considered to be "regular and continuous". Certainly the volume of the work measured only as a percentage of the employer's total business ought not to govern the outcome, as stated clearly by the Court of Appeal in OC Transpo. The Court in that decision outlines the fallacy inherent in such a test, which can also be seen by considering whether a single but highly remunerative trip ought to result in a finding that the extra-provincial travel was so regular as to require federal regulation. At that same time, though, an analysis of the frequency of the cross-border travel measured only by the absolute volume of that business may be equally misleading, for it fails to take into account what is conceived of as "regular" in a particular business.

61This problem is apparent in the taxi cases, where overall call volume is extremely high, measured for example against the number of runs made daily by a trucking company (or by a charter bus company). In the Ottawa Taxi Owners decision, for example, the amount of extra-provincial travel seems considerable, at 348 calls per day, until one considers that more than 15,000 calls are dispatched daily. In this context, even an impressive number of daily trips might fairly be considered de miniinus. In the case before me, approximately 18 trips across the border are dispatched each day, but this represents less than 1/2% of the employer's daily call volume. Extra-provincial travel is thus regular, if one considers only the interval of the work, which is clearly more than daily (although entirely unscheduled), but at the same time is not frequent, having regard to the number of calls handled daily.

62Is the Board nonetheless prohibited from taking into account the relative frequency of extra-provincial calls in assessing whether or not the cross-border travel constitutes an "extending or connecting" activity, having regard to the decisions in Tank Truck and OC Transpo? Having carefully considered these judgments, and all of the decisions reviewed above, I am satisfied that a consideration of the frequency of the extra-provincial travel, compared to the normal pace of the employer's business, is an entirely appropriate way in which to assess whether the extra-provincial undertaking is "regular and continuous". This approach appears to be supported by the decision of the Canada Labour Relations Board in Ottawa Taxi Owners, where the Board asserts that "(t)he percentage of business test cannot by itself, be determinative although it can, of course, be useful in determining whether the traffic is regular and continuous" (at page 78). Similarly, the Canada Board stated in Acadian Lines Limited that "if the percentage of business is to be used at all, it can only be used to determine whether the traffic is regular and continuous and not as a test per Se. Furthermore, we believe that it is only useful where regularity and continuity of traffic cannot otherwise be readily determined" (at page 46). The comments of the court in both Tank Truck and OC Transpo, while clearly prohibiting a simple invocation of the volume of the extra-provincial business relative to that carried on within provincial boundaries as a complete answer to the question of constitutional jurisdiction, does not preclude a careful measure of the "regularity" of extra-provincial travel having regard to the normal patterns of the employer's business.

63The union in its legal submissions emphasized the unique nature of the taxi industry in asserting that the Board ought not to rely upon the caselaw relating to the trucking and charter bus industries, much less the municipal bus cases, in assessing the appropriate constitutional jurisdiction. Certainly there is ample Board jurisprudence dealing generally with the taxi industry, which does possess various unusual features which have had an impact in applying labour relations principles to the industry. Taxi drivers are generally employees within the meaning of the Act only because they have been found to be dependent contractors who rely upon companies operating dispatch services, the owners of taxi licence plates, and often the owners of vehicles, for their ability to earn a living. Companies like Windsor Airline Limousine are not conventional employers: they generally, but not always, operate dispatch services that advertise the availability of taxi services to the public, and then refer calls for such service to drivers, who pick up the fares and transact directly with the customer; they often own taxi licences, which because of municipal regulation are required for a taxi to be operated, and lease those plates to drivers; and they sometimes also own cars, which are similarly rented to drivers. Drivers pay a variety of fees to brokerages like Windsor Airline Limousine, depending on the nature of their arrangements, which may include dispatch fees, taxi licence rental fees, and/or vehicle rental fees. A driver's income therefore derives directly from the fares paid by customers, less the payments made to the brokerage (and often to other persons, called "associates" in the Board's decisions, who may own plates or vehicles), rather than from any salary paid out by the employer. These features of the taxi industry have been reviewed exhaustively in numerous decisions of the Board, including Diamond Taxicab Association (Toronto) Limited, [1995] OLRB Rep. June 753.

64The taxi industry is also regulated by municipal authorities, which issue by-laws controlling important aspects of the business, including the fares charged to customers, the issuance of plates and their transfer and usage, and even the conduct required of drivers. These by-laws are thus central to the ability of brokerages and drivers to earn money in the industry, and have played an important role in the labour relations framework established where drivers have chosen to organize collectively.

65These unique qualities of the taxi industry illuminate the constitutional facts in this matter, and do perhaps distinguish them from the kinds of commercial arrangements which are typical in the other industries considered in the cases reviewed above, including the trucking and charter bus businesses. In the present case approximately half of the drivers have chosen to obtain the clearance necessary to accept from the company referrals for trips across the border, but they are not compelled, as dependent contractors, to be so licensed, nor are they required to accept extra-provincial calls. And the company itself of course carries on no actual operations outside of the province: its dispatch and services are located in Windsor, and its taxi plates are all issued by the municipal authorities in Windsor. Its only role in terms of extra-provincial business is to refer calls to the various dependent contractors who drive for the company, some of whom will accept those fares and transport them across the border on an unscheduled on-demand basis.

66I have carefully reviewed all of the constitutional facts, which were put before me undis­puted, and engaged in a detailed review of the relevant tribunal and judicial authorities. In all of the circumstances of the present case, I have concluded that, as in the earlier Windsor Airline Limousine case and in the decision of the Canada Labour Relations Board in Ottawa Taxi Owners, the provision of extra-provincial taxicab services by Windsor Airline Limousine is not carried on on a "regular and continuous" basis so as to constitute an "extending or connecting" activity within the meaning of section 92(l0)(a) of the Constitution Act, 1867.

DISPOSITION

67For all of the reasons reviewed above, the Board has determined that the labour relations of the employer fall within provincial jurisdiction, and this Board therefore has jurisdiction to proceed to hear and determine the above-captioned matters.

68The Registrar will contact the parties to set dates for the continuation of the hearings in Board file 3229-97-FC; the proceedings in Board file 3332-97-R will continue to be held in abeyance pending the ruling on the application for a first contract direction.