T-4569-75
Maritime Telegraph & Telephone Company Lim
ited (Plaintiff)
v.
Canada Labour Relations Board, and Internation
al Brotherhood of Electric Workers, Local 1030
(Defendants)
and
Attorney General of Nova Scotia (Intervener)
Trial Division, Thurlow A.C.J.—Ottawa, Febru-
ary 25, 26 and March 10, 1976.
Jurisdiction—Labour relations Application for prohibition
to restrain Canada Labour Relations-Board from proceeding
with certification application by defendant union Whether
plaintiff's facilities and functions federal work, undertaking or
business—Whether Trial Division has jurisdiction to grant
prohibition against Board—Canada Labour Code, R.S.C.
1970, c. L-1, as am. S.C. 1972, c. 18, ss. 2, 108, 122, 133—
British North America Act, 1867, s. 92(10).
Plaintiff applied for prohibition to restrain the Canada
Labour Relations Board from proceeding with an application
for certification by defendant union as agent for a unit contain
ing employees of plaintiff. Plaintiff contended that its facilities
and functions do not constitute a federal work, undertaking or
business in respect of which Parliament can legislate. The
Board raised a preliminary objection, based on section 122 of
the Canada Labour Code, claiming that the Trial Division has
no jurisdiction to grant prohibition against it. Since section
122(1) provides for review of Board decisions in the Court of
Appeal, it claimed, it should not be interpreted as a privative
provision, but as intending that the Court of Appeal should be
the only Court having jurisdiction.
Held, in the exercise of the Court's discretion, the applica
tion should be dismissed. Section 122(1) does not oust jurisdic
tion: The section is limited to proceedings under Part V of the
Code, which, by section 108, is made applicable only to the
persons therein mentioned in respect of the operation of a
federal work, etc. Unless the enterprise is such, proceedings are
not authorized by or under Part V, and section 122(2) has no
application. And, if the enterprise is not one in respect of which
Parliament can legislate, section 122(2) cannot prevent the
Court from exercising its supervisory authority.
It is incumbent on plaintiff to establish clearly, and leave the
Court in no doubt as to the nature of its undertaking. The
granting of prohibition is discretionary, and, where the facts,
though not necessarily in dispute, have not been put before the
Court to a sufficient extent to demonstrate lack of jurisdiction,
the Court is justified in being reluctant to decide once and for
all that jurisdiction does not exist, and that the Board is not
entitled to explore the facts upon which jurisdiction turns.
It is not apparent that the Board is persuaded by the union
that it has jurisdiction to proceed, or that, at this stage, it has
determined to assert jurisdiction. Since plaintiff has raised the
objection, the Board appears to have followed a course calculat
ed to elicit information upon which to decide whether it should
assume and assert jurisdiction, or decline it. It is not presently
threatening the exercise of jurisdiction over plaintiff.
British Columbia Packers v. Canada Labour Relations
Board [1973] F.C. 1194; [1974] 2 F.C. 913; [1976] 1 F.C.
375; Montreal Boatman Limited v. Canada Labour Rela
tions Board (not reported, T-3556-75) and Bonanza Creek
Gold Mining Co. v. The King [1916] 1 A.C. 566, dis
cussed. In re Birch (1855) 15 C.B. 743; 139 E.R. 617;
Taylor v. Nicholls (1876) 1 C.P.D. 242; Bell v. Ontario
Human Rights Commission [1971] S.C.R. 756, applied.
APPLICATION.
COUNSEL:
D. M. Nunn, Q.C., and G. North for
plaintiffs.
G. Henderson, Q.C., and G. Hynna for
defendant CLRB.
P. Landry for defendant I.B.E.W.
G. Duncan and J. W. Kavanagh, Q.C., for
intervener.
SOLICITORS:
Cox, Downie, Nunn & Goodfellow, Halifax,
for plaintiff.
Gowling & Henderson, Ottawa, for defendant
CLRB.
Horne, Langille & Maclntyre, Dartmouth,
for defendant I.B.E.W.
Attorney General of Nova Scotia for
intervener.
The following are the reasons for judgment
rendered in English by
THURLOW A.C.J.: This is an application for a
writ in the nature of prohibition to restrain the
Canada Labour Relations Board from proceeding
with an application made before it by the defend
ant union for certification under the Canada
Labour Code as the bargaining agent for a bar-
gaining unit including employees of the plaintiff
and of Island Telephone Company Limited.
The Board's authority to grant certification to a
trade union is contained in Part V of the Canada
Labour Code which, by section 108, is made appli
cable in respect of
employees who are employed upon or in connection with the
operation of any federal work, undertaking or business and in
respect of the employers of all such employees in their relations
with such employees and in respect of trade unions and employ
ers' organizations composed of such employees or employers.
The expression "federal work, undertaking or
business" is defined in section 2 as meaning:
any work, undertaking or business that is within the legislative
authority of the Parliament of Canada, including ... .
The basis for the application for prohibition is
the plaintiff's contention that its facilities and
functions do not constitute a federal work, under
taking or business in respect of which Parliament
has authority to legislate. The Attorney General of
Nova Scotia, who by order dated the 3rd day of
February, 1976, was given leave to intervene, sup
ported the application. Counsel for the Board took
no position on the constitutional question but sub
mitted that the Court should exercise its discretion
to refuse the application.
At the outset of the hearing in this Court,
counsel for the Board also raised a preliminary
objection, based on section 122 of the Canada
Labour Code, that the Trial Division of this Court
is without jurisdiction to grant relief in the nature
of prohibition directed to the Board. That section
reads as follows:
122. (1) Subject to this Part, every order or decision of the
Board is final and shall not be questioned or reviewed in any
court, except in accordance with section 28 of the Federal
Court Act.
(2) Subject to subsection (1), no order shall be made, pro
cess entered or proceeding taken in any court, whether by way
of injunction, certiorari, prohibition, quo warranto or other
wise, to question, review, prohibit or restrain the Board in any
of its proceedings under this Part.
Counsel's contention was that since subsection
122(1) provides for a review of the Board's deci
sions in the Federal Court of Appeal the section
should not be interpreted as a privative provision
but as intending that the Court of Appeal should
be the only Court having jurisdiction over the
Board. In the course of argument reference was
made to the decision of the Court of Appeal in
British Columbia Packers Limited v. Canada
Labour Relations Board' which suggested that
prohibition in the Trial Division was a course open
to the parties for raising a question of jurisdiction
based on a constitutional point, to the judgment of
Addy J. on the subsequent application for prohibi
tion in that case' and to the judgment of Dubé J.
in Montreal Boatman Limited v. Canada Labour
Relations Board (Court No. T-3556-75, unreport-
ed). The last mentioned case was said to be in
conflict with the opinions expressed in the other
two cases. It does not appear from Mr. Justice
Dubé's reasons that the British Columbia Packers
case was cited to him.
At the hearing, I stated that I was inclined to
think that the better view was that the Trial
Division has jurisdiction and that I would hear the
application. I remain of that opinion.
It appears to me that there are at least two
reasons for holding that in a case of this kind
subsection 122(2) does not oust the jurisdiction of
the Trial Division under section 18 of the Federal
Court Act. The first is that subsection 122(2) is,
by its language, restricted to proceedings before
the Board under Part V of the Canada Labour
Code which, by section 108, is made applicable
only to the persons therein mentioned in respect of
the operation of a federal work, undertaking or
business. Accordingly, unless the enterprise in
question is a federal work, undertaking or busi
ness, the proceedings before the Board are not
proceedings authorized by, nor are they proceed
ings under Part V, and subsection 122(2) by its
terms has no application.
The other reason is that if the enterprise in
question is not one in respect of which Parliament
has authority to legislate, subsection 122(2) is
[1973] F.C. 1194.
2 [1974] 2 F.C. 913 at page 920. [Decision upheld on appeal.
See [1976] 1 F.C. 375—Ed.]
subject to the same frailty and cannot operate to
prevent the Court from exercising its supervisory
authority in the case.
I am accordingly of the opinion that the juris
diction of the Trial Division to entertain the
present application is not ousted by subsection
122(2) of the Canada Labour Code.
The material put before the Court by the plain
tiff in support of the application consists of a single
affidavit of the president and chief operating offi
cer of the plaintiff company, which, apart from
paragraphs exhibiting correspondence between the
plaintiff and the Board in respect of the applica
tion for certification, contains the following:
3. THAT MT & T is a company incorporated by a special Act
of the Legislature of the Province of Nova Scotia (S.N.S. 1910,
c. 156 as amended by S.N.S. 1966, c. 5 and S.N.S. 1972, c.
122).
10. THAT MT & T is a company providing telecommunication
service solely within the Province of Nova Scotia and that its
only customers are the residents of the Province of Nova
Scotia.
11. THAT MT & T is located solely in the Province of Nova
Scotia, all of its physical plant and assets are within the
Province, and all of its approximately 3,500 employees reside
and work in the Province.
12. THAT I am advised by our solicitor, D. Merlin Nunn, Q.C.,
and do verily believe that the Defendant Board lacks the
constitutional jurisdiction to deal with the certification applica
tion of the Defendant Union and that therefore the Defendant
Board is not entitled in law to proceed with the hearing of the
application.
There was no cross-examination of the deponent
on this affidavit and no evidence was adduced by
the defendant union. An affidavit of the acting
secretary of the Canada Labour Relations Board
was filed by counsel for the Board exhibiting the
file of the Board relating to the application for
certification, but this establishes nothing further
by way of description of the plaintiff's physical
facilities or its undertaking.
The submission of counsel for the plaintiff was
that the facts established by the plaintiff's affida
vit are sufficient to show that the plaintiff's facili
ties are a local work within the Province of Nova
Scotia and that its enterprise is a local undertaking
within the Province, and that nothing in the evi
dence shows it to fall within any of the exceptions
referred to in head (10) of section 92 of the British
North America Act, 1867, so as to bring it within
the legislative authority of Parliament, and thus
within the definition of "federal work, undertaking
or business" as defined in section 2 of the Canada
Labour Code.
In support of his position, counsel contended
that since the plaintiff was incorporated by a
special Act of the legislature of Nova Scotia, on
the authority of Bonanza Creek Gold Mining Co.
v. The King', the applicant was without capacity
or power to carry on an undertaking beyond the
limits of the Province of Nova Scotia. With respect
to this particular argument, however, it appears to
me that the plaintiff has had, since at least as far
back as 1921, the power and capacity of exercising
its functions outside of Nova Scotia, and of accept
ing and receiving from any competent authority
outside of Nova Scotia, the rights and powers
necessary to enable it, to do outside of Nova
Scotia, any act or thing which it has the right or
power to do within Nova Scotia. See Statutes of
Nova Scotia 1921, c. 40, s. 1; R.S.N.S. 1923, c.
173, ss. 3, 4 & 5; R.S.N.S. 1954, c. 74, ss. 2, 3 &
4; and R.S.N.S. 1967, c. 59, ss. 2, 3 & 4.
Turning to what is disclosed by the affidavit, the
matters set out in paragraphs 3, 10 and 11 of the
plaintiff's affidavit are all consistent with the
plaintiff's enterprise being a local provincial
undertaking. Indeed they strongly suggest that
conclusion. But precisely what is involved in pro
viding "telecommunication service" in Nova
Scotia to customers residing there, on a scale
involving the work of some 3,500 employees, is not
expanded or elaborated and what is involved in the
provision to customers in Nova Scotia of long
distance interprovincial and international service,
which I understood counsel to say might be
assumed to be available to them, and the arrange
ments by which such services are provided are left
unexplained. The affidavit is also silent as to what
part the plaintiff plays and the arrangements
under which it plays that part in the interprovin-
cial service rendered to their customers by compa
nies operating outside Nova Scotia in completing
their calls to the plaintiff's customers. The evi
dence is, therefore, in my opinion, not necessarily
inconsistent with the undertaking being in fact one
3 [1916] 1 A.C. 566.
which includes the provision of services of an
extraprovincial character.
It is, no doubt, not to be presumed that by
providing in some way for the carriage of the
extraprovincial telecommunication traffic of its
customers, the plaintiff does so by carrying on an
extraprovincial, and thus a federal, undertaking.
But while that is not to be presumed, as it appears
to me, it is incumbent on a plaintiff, in seeking in
this Court prohibition to prevent the Canada
Labour Relations Board from carrying out its
statutory function, which includes at least the
exploring, if not the final adjudication of its juris
diction to deal with the matter in respect of which
its authority has been invoked, to establish the
facts clearly and leave the Court in no doubt as to
the precise nature of the undertaking that is being
carried on.
Prohibition is not a remedy claimable as of
right. The grant of it is discretionary and even if
such evidence as has been put before the Court
should, having regard to the jurisdiction of the
Court to find the facts and to the failure of the
defendant union to cross-examine the deponent or
adduce evidence, be regarded as favouring the
conclusion urged by the plaintiff it appears to me
to be open to the Court, in exercising its discretion,
to take into account the meagre character of the
evidence and its lack of explanations that might
have either confirmed the conclusion, or on the
other hand, shown it to be unsound. 4
An application for prohibition is an appropriate
procedure for having a question of jurisdiction
authoritatively determined at an initial stage,
where there is a clear question of law arising on
facts which are not in dispute.' But it seems to me
that where the facts, though not necessarily in
dispute, or though not necessarily open to serious
contest, have not been put before this Court to a
sufficient extent to demonstrate the lack of juris
diction the Court is justified in being reluctant to
4 Compare In re Birch (1855) 15 C.B. 743, 139 E.R. 617 and
Taylor v. Nicholls (1876) 1 C.P.D. 242.
See Bell v. Ontario Human Rights Commission [1971]
S.C.R. 756 and the passage cited therein from the judgment of
Lord Goddard C.J. in Ex parte Northfield (Highgate) Ltd.
[1957] 1 Q.B. 103 at page 107.
decide once and for all that jurisdiction does not
exist and that the Board is not entitled to so much
as explore the facts upon which its jurisdiction
turns.
A second and somewhat related matter which
appears to me to bear on the question whether
prohibition should be granted arises from the
course which the-proceedings have so far taken
before the Canada Labour Relations Board and
their present status. For this purpose it will be
necessary to describe briefly the correspondence
which has passed between the Board and the plain
tiff and what resulted from it.
The union's application to the Board was filed
on January 24, 1975. It sought certification for a
group of some 1,560 employees of the plaintiff and
of Island Telephone Company Limited of Char-
lottetown, Prince Edward Island, and it stated
inter alia that the union was already certified
under the laws of Nova Scotia as the bargaining
agent for the employees included in the group. I
pause to note that this statement seems to have
been inaccurate in so far as it refers to the
employees of the Island Telephone Company
Limited.
The application was accompanied by a letter
from the union's solicitors saying that they felt the
Board had jurisdiction under subsection 2(b) of
the Canada Labour Code and referring as well to
section 133 of the Act. The file indicates that the
Board received, on February 23, 1975, copies of
the orders of the Nova Scotia Labour Relations
Board and, on March 5, 1975, copies of certifica
tion orders of the Prince Edward Island Labour
Relations Board, relating to the defendant union.
On March 3rd, the Canada Labour Relations
Board wrote to the plaintiff informing it of receipt
of the application for certification, enclosing a
copy, referring the plaintiff to various regulations
made under the Canada Labour Code and to a
section of the Act itself and requiring the plaintiff
to comply therewith.
On March 10th, the plaintiff acknowledged
receipt of the Board's letter, pointed out that
Schedules A and B of the application had not been
included in the material enclosed with the Board's
letter and asked for copies of them "so that we can
proceed in accordance with CLRB 2 `Notes to
Employer Concerning Posting' ". The Board's file
indicates that a letter was also received from the
Island Telephone Company Limited, the first three
paragraphs of which are identical with the three
paragraphs of the plaintiff's letter.
However, on March 17th, 1975, the plaintiff's
solicitor returned to the Board all the documents
which had been sent to it by the Board with a
letter, the first paragraph of which read as follows:
I have been retained by Maritime Telegraph & Telephone
Company Limited with regard to the above noted matter. I am
instructed to advise you that Maritime Telegraph & Telephone
Co. Ltd. is a Special Act Company of the Nova Scotia legisla
ture. The Company is regulated by the Board of Commission
ers of Public Utilities of Nova Scotia. The employees who
would be in the unit applied for by the I.B.E.W. are presently
certified by the Labour Relations Board (Nova Scotia). The
Company operates solely within the boundary of the Province
of Nova Scotia and in no way can be considered to be a
"federal undertaking". It is obvious that there is no jurisdiction
whatsoever for the application contained herein.
On March 19th precisely similar action was
taken by solicitors for the Island Telephone Com
pany Limited.
The Board replied on April 2nd, 1975 by similar
letters to both firms of solicitors. The body of that
written to the plaintiff's solicitors was as follows:
This is to acknowledge receipt of your letter dated March 17,
1975 and enclosures.
Taking into account the points raised in your letter, I have
been instructed to request that you comply with the Canada
Labour Relations Board Regulations 6 and 10 through 12
which outline the criteria to be met in order to file a reply to
this application.
It is noted that any reply that you may file, will be received
without prejudice to your position regarding the jurisdictional
question in this matter.
I enclose the correspondence, application and the "Notice to
Employer Concerning Posting" that was mailed to your client
on March 3, 1975.
Mr. J. Vines, Labour Relations Officer, will be contacting
you in the near future. I trust that you will meet the require
ments of the Canada Labour Code and provide Mr. Vines with
all the information required by him in the course of his
investigation.
The plaintiff's solicitors replied on April 9th by
a letter, the first two paragraphs of which were:
This will acknowledge receipt of your letter of April 2, 1975
which was received in this office on April 7th. I have again
taken the matter up with my client and I am instructed to
repeat to you the provisions of my earlier letter and point out
that my client is unwilling to post notices which would only
have a disruptive effect on our employees and is unwilling to go
to the expense necessary to prove what must be obvious at the
outset. Even the applicant admits that it is certified provincially
under the laws of Nova Scotia. In an obvious case such as this,
surely it is your responsibility to advise the applicant that you
do not have jurisdiction over the employees it represents. We
would suggest that you request some proof from the applicant
that you have jurisdiction before commencing the procedures. I
need not point out to you further that your jurisdiction is based
on "federal work undertaking or business" and all the operative
provisions of the Act are based on jurisdiction.
I am, therefore, returning herewith again the documentation
which you provided, on the basis that you do not have jurisdic
tion to cause the procedures to commence.
And the solicitors for the Island Telephone Com
pany Limited followed suit on April 11th, 1975.
The Board's file indicates that the matters
raised by the plaintiff's solicitors were under con
sideration in July 1975 and that on August 11th,
1975, the Board, by letter, required the union to
substantiate its application by filing written sub
missions inter alia supporting its claim that the
Board had jurisdiction to act on its application. In
response to its letter, the Board, on October 2nd,
1975, received from the solicitors for the union a
submission consisting of some 49 typewritten
pages, 32 of which were concerned with the
Board's jurisdiction and the plaintiff's objection
thereto. This contained on page 9 a statement that
It cannot be denied that MT & T and IT carry on inter-provin
cial communications.
and on page 11, the following:
Therefore even though MT & T and IT may not themselves
own telephone lines in other provinces and thence may not be
able to be said to be "works" their situation fits perfectly the
definition of "undertaking" as found above. Here the telephone
companies have an "arrangement" under which physical things
are used. That "arrangement" is the "Trans Canada Telephone
System" through which the eight major telephone companies in
Canada co-operate with one another in order to facilitate long
distance operations. Hence it is respectfully submitted that MT
& T and IT fall within the scope of inter-provincial undertak-
ings as defined by judicial decisions and hence are subject to
federal jurisdiction.
I should note at this point that counsel for the
plaintiff objected that allegations of fact in the
submission, in the absence of verification by
affidavit, should not be taken as proven for the
purposes of this application. With this I agree. On
the other hand, in my opinion, neither are the
allegations disproved by the affidavit filed by the
plaintiff in support of this application. For exam
ple; the existence of partnership arrangements
under which interprovincial telecommunication
service may be provided in Nova Scotia by the
plaintiff and the operator of an interprovincial
telecommunication service is not negatived.
The material also shows that on November
20th, copies of the union's submissions were for
warded to the plaintiff and to its solicitors together
with copies of a letter from the Board to the
union's solicitors, the body of which read as
follows:
We acknowledge receipt of the document entitled "Submis-
sions on Behalf of the Applicant" dated September 26, 1975,
which you have submitted pursuant to the Board's request in its
letter dated August 18, 1975.
While reserving any decision on the merits of your submis
sions, the Board considers it appropriate in the circumstances,
that all interested parties have the opportunity of responding to
the arguments you have made. Accordingly, a copy of your
submission is being transmitted to all of the parties listed
hereunder who are also being given a copy of this letter. These
parties are being given the opportunity of commenting on your
submission on or before December 18, 1975.
The body of the covering letter of the same date
to the plaintiff and other parties read:
Please find enclosed a copy of the document entitled "Sub-
missions on behalf of the Applicant", received from Mr. Peter
Landry, Counsel of the International Brotherhood of Electrical
Workers. Also enclosed, for your information is a copy of our
letter of acknowledgement to Mr. Landry of today's date.
You will note that the Board has reserved any decision on the
merits of Mr. Landry's submissions until the parties concerned
have had an opportunity to submit any written comments they
may wish to make on or before December 18, 1975.
In my view, it is apparent from this correspond
ence that while the Board, in its first communica-
tion to the plaintiff, that is to say, its letter of
March 3, 1975, purported to exercise its authority
by demanding compliance with certain statutory
regulations and a provision of the Canada Labour
Code it has not, since the first of the letters of the
plaintiff's solicitors, that of March 17th, 1975,
made so much as an assertion that it has jurisdic
tion over the plaintiff. Its response of April 2nd,
1975 is, in my opinion, not a demand, but a mere
request that the plaintiff comply without prejudice
to its position on the question of jurisdiction. This
was answered not merely by a denial of the
request, but by a suggestion on the part of the
plaintiff that the Board request proof from the
applicant union of the Board's jurisdiction "before
commencing the procedures".
The Board appears to have accepted this sugges
tion. It called on the union to support its position
and on receiving the union's submissions, it for
warded copies to the plaintiff. It thereupon invited
the plaintiff to comment on or before December
18, 1975 and in the meantime reserved "any deci
sion on the merit of Mr. Landry's submissions".
Neither a reply to the Board's letter nor comments
by the plaintiff on the union submission appear in
the Board's file and as the present application was
filed on December 18th, 1975, it is safe to assume
that no reply or comment was sent.
It is, therefore, by no means apparent from the
material before the Court either that the Board is
persuaded by the union's submissions, whether
commented on or not by the plaintiff, that it has
jurisdiction to proceed with the union application,
or that, at this stage, it has determined to assert
jurisdiction over the plaintiff. The plaintiff having
raised the objection, the Board appears to me to
have simply followed a course calculated to elicit
information upon which to determine whether it
should assume and assert jurisdiction or decline it.
So matters stood at the time when this application
was launched and, so far as appears from the
material before the Court, the plaintiff was not at
any time since April 2nd, 1975, and is not at the
present time, threatened with < span> exercise by the
Board of an unwarranted jurisdiction over it. The
Board may yet conclude, on what is before it, that
it should not assert jurisdiction. Or it may decide
to investigate the matter further before determin-
ing its course. In either case, it is not presently
threatening the exercise of jurisdiction over the
plaintiff, and this, in my view, is a matter to be
taken into account in exercising the Court's discre
tion to grant or deny the issue of prohibition
directed to the Board at this stage.
On the whole, I reach the conclusion that in the
exercise of the Court's discretion, the application
should be refused and it will, therefore, be dis
missed, with costs.
There will be no costs payable by or to the
intervener.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.