A-855-85
House of Commons (Applicant)
v.
Canada Labour Relations Board and Public Ser
vice Alliance of Canada (Respondents)
INDEXED AS: HOUSE OF COMMONS V. CANADA LABOUR RELA
TIONS BOARD
Court of Appeal, Pratte, Hugessen and Lacombe
JJ.-Ottawa, January 20, 21 and April 23, 1986.
Labour relations - House of Commons employees
Application to set aside order certifying Public Service
Alliance as bargaining agent - Part V Canada Labour Code
not applicable - House of Commons not operating 'federal
work, undertaking or business" as required by Part V
House of Commons not "person" therefore not "employer"
under s. 107(1) - Indications employees Crown servants
therefore excluded from application of Part V pursuant to s.
109(4) - Board exceeding jurisdiction - Application allowed
- Canada Labour Code, R.S.C. 1970, c. L-1, ss. 2, 107(1) (as
am. by S.C. 1972, c. 18, s. 1), 108 (as am., idem), 109(4) (as
am., idem) - Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.)
[R.S.C. 1970, Appendix II, No. 5] (as am. by Canada Act
1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act
1982, Item 1), ss. 17, 37, 44, 71, 80 - Senate and House of
Commons Act, R.S.C. 1970, c. S-8, s. 4 - House of Commons
Act, R.S.C. 1970, c. H-9, s. 18 (as am. by S.C. 1985, c. 39, s.
1) - Public Service Employment Act, R.S.C. 1970, c. P-32
Public Service Staff Relations Act, R.S.C. 1970, c. P-35 - An
Act for better ensuring the efficiency of the Civil Service of
Canada, by providing for the Superannuation of persons
employed therein, in certain cases, S.C. 1870, c. 4, s. 9
Public Service Superannuation Act, R.S.C. 1970, c. P-36, s. 2
- Financial Administration Act, R.S.C. 1970, c. F-10, s. 2
Government Employees Compensation Act, R.S.C. 1970, c.
G-8, s. 2(1) (as am. by S.C. 1980-81-82-83, c. 47, s. 21)
Translation Bureau Act, R.S.C. 1970, c. T-13, s. 4(1)
Public Sector Compensation Restraint Act, S.C. 1980-81-82-
83, c. 122, s. 3(1) - Garnishment, Attachment and Pension
Diversion Act, S.C. 1980-81-82-83, c. 100 (as am. by S.C.
1980-81-82-83, c. 171) - The Canada Civil Service Act,
1868, S.C. 1868, c. 34 - The Civil Service Amendment Act,
1908, S.C. 1908, c. 15, ss. 3(2), 45 - The Civil Service Act,
1918, S.C. 1918, c. 12, s. 34 - Civil Service Act, S.C.
1960-61, c. 57, s. 72 - The Industrial Relations and Disputes
Investigation Act, S.C. 1948, c. 54, s. 53 - Appropriation Act
No. 2, 1984-85, S.C. 1984, c. 16 - Federal Court Act, R.S.C.
1970 (2nd Supp.), c. 10, s. 28.
This is a section 28 application directed against a decision of
the Canada Labour Relations Board certifying the Public
Service Alliance as the bargaining agent for all general service
employees of the House of Commons. The applicant, the House
of Commons, contends that Part V of the Canada Labour Code
does not apply to employees under its control and that the
Board exceeded its jurisdiction in making the decision a quo.
Held, the application should be allowed.
Per Pratte J.: Part V of the Code applies in respect of
employees "employed ... in connection with the operation of
any federal work, undertaking or business". The question is
whether Parliament operates a federal undertaking or business.
Reference was made to the Supreme Court of Canada decision
in Canada Labour Relations Board et al. v. Yellowknife,
[1977] 2 S.C.R. 729 wherein the Court held that the Canada
Labour Code applied to employees of municipal corporations in
the Northwest Territories. Similarities were drawn between the
two cases. However, in spite of those similarities, the situation
of the House of Commons is fundamentally different from that
of a municipal corporation. In the carrying out of its duties, a
municipal corporation must perform various operations which
do not differ from those of private corporations. The operations
of the House are of another nature: they are ancillary to the
performance of its sole task of participating in the making of
laws and, for that reason, cannot be assimilated to those of
private employers. Because of that important distinction, it
cannot be inferred from the Yellowknife decision that the
operations of the House of Commons are embraced in the
phrase "federal work, undertaking or business".
The conclusion that Part V of the Code does not apply to
House of Commons employees was reinforced by the history of
the Canada Labour Code and the Civil Service Acts. The
predecessor of Part V of the Code was The Industrial Rela
tions and Disputes Investigation Act of 1948. That Act, like
the present Part V, provided for the certification of bargaining
agents and for compulsory collective bargaining. In 1961 a new
Civil Service Act was adopted. Although the Act did not apply
to employees of the House of Commons, it did confer on the
House of Commons the power to apply any provisions thereof
to its employees. It was assumed that if Part V of the Code
applied to employees of the House of Commons, then the 1948
Act would by necessity also apply to them. It would be absurd
if Parliament, having granted to employees of the House of
Commons the right to compulsory collective bargaining in 1948
would, in 1961, have given to their employers the discretionary
power to deprive them of that right. Such an intention should
not be ascribed to Parliament.
The application of the Code to the House of Commons would
compel the House to obey the decisions of the Minister of
Labour and the regulations of the Governor in Council and
could lead to a confrontation between the House and the
Speaker, on the one side, and the Canada Labour Relations
Board and the Court, on the other. Such results were to be
avoided.
Per Hugessen J.: The House of Commons is not an "employ-
er" within the meaning of subsection 107(1) of the Canada
Labour Code, which defines an employer as being a "person".
Nothing in the Constitution Act, 1867 nor in the law, custom
and convention of the Constitution gives the House corporate
status or personality. There is no authority indicating that the
House of Commons may be a person.
Moreover, the subject employees are specifically excluded
from Part V of the Code. Under subsection 109(4), Part V
"does not apply in respect of employment by Her Majesty in
right of Canada" except as provided by section 109. There are
some strong indications that the employees in question are in
reality servants of the Crown. In the first place, the senior
officers of the House are officers of the Crown appointed by
Order in Council. They, in turn, actually hire and direct the
employees. Secondly, the salaries and benefits of the employees
are dealt with in the various Appropriation Acts which grant to
"Her Majesty certain sums of money for the Government of
Canada". The House of Commons appears in the Schedule to
those Acts under the heading "Parliament". Finally, in many of
the incidentals of their employment the employees of the House
of Commons appear indistinguishable from other members of
the Public Service: they work in a building owned by the
Crown; their working tools are public property and their pay
cheques come from the Department of Supply and Services.
CASES JUDICIALLY CONSIDERED
APPLIED:
Gabias c. L'Assemblée législative de la province de
Québec, No. 138-195, Casgrain J., Superior Court, Dis
trict of Québec, May 3, 1965, not reported.
DISTINGUISHED:
Canada Labour Relations Board et al. v. Yellowknife,
[1977] 2 S.C.R. 729; Public Service Alliance of Canada
v. Francis et al., [1982] 2 S.C.R. 72.
CONSIDERED:
Tone River, (Conservators of), v. Ash (1829), 109 E.R.
479 (K.B.); The Queen v. MacLean (1881), 8 S.C.R. 210;
Kimmitt v. The Queen (1896), 5 Ex.C.R. 130.
REFERRED TO:
Newcastle (Duke of) v. Morris (1870), L.R. 4 H.L. 661.
COUNSEL:
John D. Richard, Q.C., Emilio Binavince and
Russell Zinn for applicant.
Robert Monette and Dianne Pothier for
respondent Canada Labour Relations Board.
Andrew J. Raven and N. J. Schultz for
respondent Public Service Alliance of
Canada.
James I. Minnes and Peter K. Doody for
Library of Parliament.
R. L. du Plessis, Q.C. and Mark A. Audcent
for Senate of Canada.
Denis J. Power, Q.C. for National Association
of Broadcast Employees and Technicians
(NABET).
Gérard Guay for House of Commons Security
Service Employees Association.
SOLICITORS:
Gowling & Henderson, Ottawa, for applicant.
Ogilvy, Renault, Montreal, for respondent
Canada Labour Relations Board.
Soloway, Wright, Houston, Greenberg,
O'Grady, Morin, Ottawa, for respondent
Public Service Alliance of Canada.
Scott & Aylen, Ottawa, for Library of
Parliament.
Senate of Canada on its own behalf.
Nelligan/Power, Ottawa, for National Asso
ciation of Broadcast Employees and Techni
cians (NABET).
Gérard Guay, Hull, Quebec, for House of
Commons Security Service Employees Asso
ciation.
The following are the reasons for judgment
rendered in English by
PRATTE J.: This section 28 application is direct
ed against a decision of the Canada Labour Rela
tions Board certifying the Public Service Alliance
as the bargaining agent for a unit comprising:
... all general service employees of The House of Commons of
Canada providing valet, elevator operation, dispatching, mes
senger, driving, cleaning and maintenance, warehousing, food
preparation and serving services, excluding supervisors and
those above.
The applicant contends that Part V of the
Canada Labour Code [R.S.C. 1970, c. L-1] does
not apply to employees under its control and that,
as a consequence, the Board exceeded its jurisdic
tion in making that order.
The House of Commons was created by section
17 of the Constitution Act, 1867 [30 & 31 Vict., c.
3 (U.K.) [R.S.C. 1970, Appendix II, No. 5] (as
am. by Canada Act 1982, 1982, c. 11 (U.K.),
Schedule to the Constitution Act 1982, Item 1)],
as one of the three constituent elements of
Parliament:
17. There shall be One Parliament for Canada, consisting of
the Queen, an Upper House styled the Senate, and the House
of Commons.
Under section 4 of the Senate and House of
Commons Act, R.S.C. 1970, c. S-8,' it possesses
certain powers and privileges:
4. The Senate and the House of Commons respectively, and
the members thereof respectively, hold, enjoy and exercise,
(a) such and the like privileges, immunities and powers as, at
the time of the passing of the British North America Act,
1867, were held, enjoyed and exercised by the Commons
House of Parliament of the United Kingdom, and by the
members thereof, so far as the same are consistent with and
not repugnant to that Act; and
(b) such privileges, immunities and powers as are from time
to time defined by Act of the Parliament of Canada, not
exceeding those at the time of the passing of such Act held,
enjoyed and exercised by the Commons House of Parliament
of the United Kingdom and by the members thereof
respectively.
Among those powers, there is the power to have
employees. It is because of the existence of that
power that the House of Commons Act, R.S.C.
1970, c. H-9, as amended [by S.C. 1985, c. 39] 2
provides for the creation of a Board of Internal
Economy of the House of Commons to act on all
matters of financial and administrative policy
affecting the House, "its offices and its staff" and
also provides for the suspension and removal, on
the ground of misconduct and unfitness, of "any
clerk, officer, messenger or other person attendant
on the House of Commons".
It is interesting to observe that while the Speak
er of the House is elected by the House pursuant
to section 44 of the Constitution Act, 1867, the
other most important officers of the House are
appointed by the Crown by Letters Patent. That is
the case of the Clerk, the Assistant Clerk and the
Sergeant-at-Arms. As to the other employees of
the House, which were formerly engaged by the
' Which was first enacted in 1868: S.C. 1868, c. 23, s. 1.
2 The first House of Commons Act was enacted in 1868: S.C.
1868, c. 27.
Committees of the House, they are now engaged
and supervised by the Clerk and Sergeant-at-
Arms, subject, of course, to the directions of the
Board of Internal Economy and the Speaker.
A provision, which remained in our statute
books from 1870 until 1953, reveals the impor
tance that Parliament itself attached to those
powers of the House over its employees. In 1870,
there was enacted a statute providing for the
superannuation of persons employed in the Civil
Service. 3 Section 9 of that Act made it applicable
to permanent officers and servants of the Senate
and the House of Commons; it read in part as
follows: (emphasis added)
9. The foregoing enactments shall apply to ... and to the
permanent officers and servants of the Senate and House of
Commons; who, for the purposes of this Act shall be held to be
in the Civil Service of Canada, saving always all legal rights
and privileges of either House, as respects the appointment or
removal of its officers and servants, or any of them;
The employees of the House, therefore, are not
ordinary public servants. For instance, it is clear
that neither the Public Service Employment Act,
R.S.C. 1970, c. P-32 nor the Public Service Staff
Relations Act, R.S.C. 1970, c. P-35 apply to them.
When a statute relating to public servants applies
to them, it expressly says so. 4
It is common ground that Parliament possesses
the legislative competence to make Part V of the
Canada Labour Code applicable to employees of
3 S.C. 1870, c. 4, s. 9 [sub nom. An Act for better ensuring
the efficiency of the Civil Service of Canada, by providing for
the Superannuation of persons employed therein, in certain
cases]. A provision similar to section 9 of the Act was found in
chapter 24 of the Revised Statutes of 1927 and chapter 50 of
the Revised Statutes of 1952 which were both repealed by S.C.
1952-53, c. 47, s. 38.
° See: Public Service Superannuation Act, R.S.C. 1970,
c. P-36, s. 2; Financial Administration Act, R.S.C. 1970, c.
F-10, s. 2; Government Employees Compensation Act, R.S.C.
1970, c. G-8, subs. 2(1) (as am. by S.C. 1980-81-82-83, c. 47, s.
21); Translation Bureau Act, R.S.C. 1970, c. T-13, subs. 4(1);
Public Sector Compensation Restraint Act, S.C. 1980-81-82-
83, c. 122, subs. 3(1); Garnishment, Attachment and Pension
Diversion Act, S.C. 1980-81-82-83, c. 100 (as am. by S.C.
1980-81-82-83, c. 171).
the House. The only question raised in these pro
ceedings is whether it has in effect done so.
Pursuant to section 108 [as am. by S.C. 1972, c.
18, s. 1], Part V of the Code
108.... applies in respect of employees who are employed
upon or in connection with the operation of any federal work,
undertaking or business ....
In section 2, the phrase "federal work, undertak
ing or business" is defined in the following terms:
2. In this Act
"federal work, undertaking or business" means any work,
undertaking or business that is within the legislative author
ity of the Parliament of Canada, including without restrict
ing the generality of the foregoing:
(a) a work, undertaking or business operated or carried on
for or in connection with navigation and shipping, whether
inland or maritime, including the operation of ships and
transportation by ship anywhere in Canada;
(b) a railway, canal, telegraph or other work or undertaking
connecting any province with any other or others of the
provinces, or extending beyond the limits of a province;
(e) a line of steam or other ships connecting a province with
any other or others of the provinces, or extending beyond the
limits of a province;
(d) a ferry between any province and any other province or
between any province and any other country other than
Canada;
(e) aerodromes, aircraft or a line of air transportation;
(f) a radio broadcasting station;
(g) a bank;
(h) a work or undertaking that, although wholly situated
within a province, is before or after its execution declared by
the Parliament of Canada to be for the general advantage of
two or more of the provinces; and
(i) a work, undertaking or business outside the exclusive
legislative authority of provincial legislatures;
If it were not for the decision of the Supreme
Court in Canada Labour Relations Board et al. v.
Yellowknife, [ 1977] 2 S.C.R. 729, I would have no
hesitation in saying that the House of Commons
does not operate a work, an undertaking or a
business and that, as a consequence, its employees
are not "employed upon or in connection with the
operation of [a] federal work, undertaking or busi
ness". Indeed, what the House does is to perform
its constitutional task of participating in the
making of laws. That is not, in my view, the
operation of a work, undertaking or business. Par-
liament does not operate a federal undertaking or
business; the House, which is nothing but an ele
ment of Parliament, does not either.
In Canada Labour Relations Board et al. v.
Yellowknife, the Canada Labour Relations Board
had certified a union as the bargaining agent for a
unit of employees of the City of Yellowknife, a
municipal corporation created by Parliament in
the Northwest Territories; that decision of the
Board had been set aside by this Court [[19761 1
F.C. 387] on the ground that the Board had
exceeded its jurisdiction in that the City of Yel-
lowknife was not operating a federal work, under
taking or business within the meaning of section 2
of the Canada Labour Code; the Supreme Court
reversed that judgment and held that the Labour
Code applied to employees of municipal corpora
tions in the Northwest Territories. Pigeon J.
expressed the opinion of the majority of the Court.
He first observed that the result of the construc
tion put upon the Code by this Court was that
employees of municipal corporations in the Terri
tories would not have the benefit of any compulso
ry collective bargaining legislation, a result that, in
his view, ran counter to the basic intent of Part V
of the Code as expressed in the preamble of the
statute of 1972 that enacted it in its present form.
He then mentioned that the authority of Parlia
ment to legislate in respect of any employees in the
Northwest Territories is beyond question and that
paragraph (i) of the definition of "federal work,
undertaking or business" indicates an intention to
exercise this jurisdiction. He then turned to the
question whether, in the context of the Labour
Code, the definition of the expression "federal
work, undertaking or business" embraces the oper
ation of a municipal corporation and, after having
recalled [at page 736] that "jurisdiction over
labour matters depends on legislative authority
over the operation, not over the person of the
employer", he pursued as follows [at page 738]:
In my view, it would not be proper to seek to put a restricted
meaning on any of the words "work, undertaking or business"
as used in the Labour Code so as to exclude from their scope all
activities of municipal corporations. Some of these operations,
like waterworks and sewage systems, undoubtedly come within
any concept of "work". Others, like protection or sanitation
services, cannot be excluded from the scope of "undertaking"
without doing violence to the language, and "business" has
been said to mean "almost anything which is an occupation, as
distinguished from a pleasure—anything which is an occupa
tion or duty which requires attention ... " ( per Lindley, L.J. in
Rolls v. Miller, at p. 88). There is no doubt that the word
"business" is often applied to operations carried on without an
expectation of profit. In my view, it would be contrary to the
whole concept of classifying employees for jurisdictional pur
poses by reference to the character of the operation, to attempt
to make a distinction depending upon whether the employer is a
private company or a public authority. Different considerations
may obtain where the employer is a government or government
corporation and this is apparent from s. 109 of the Labour
Code. However, this is a question with which we are not
concerned in this case.
It cannot be denied that much of what has been
said by Pigeon J. in that case tends to support the
view of the respondents in this case that the
Labour Code applies to the employees of the
House of Commons. First, the result of the con
struction put upon the Code by the applicant is
that employees of both the House and the Senate
would be denied the benefit of compulsory collec
tive bargaining. Second, the Parliament of Canada
has no less authority to legislate in respect of
parliamentary employees than in respect of
employees in the Northwest Territories. Third, the
operations of the House, like those of municipal
corporations, are carried on without any expecta
tion of profit and the House, in a very wide sense,
can perhaps be said to be, like municipal corpora
tions, a public authority.
In spite of these similarities between the two
cases, the situation of the House is, in my view,
fundamentally different from that of a municipal
corporation. In the carrying out of its duties, a
municipal corporation must perform a variety of
operations which do not differ from those of pri
vate corporations. The operations of the House are
of another nature: they are all ancillary to the
performance of its sole task of participating in the
making of laws and, for that reason, unlike most
operations of a municipal corporation, cannot be
assimilated to operations of private employers.
Because of that important distinction, I am of
opinion that it cannot be inferred from the decision
of the Supreme Court in that case that the opera
tions of the House of Commons are embraced in
the phrase "federal work, undertaking or busi
ness". On the contrary, giving that phrase what
appears to me to be its plain and ordinary mean
ing, I incline to the view that it does not comprise
the activities of the House.
I am confirmed in that opinion by the history of
the Civil Service Acts and the Labour Code.
First, a few words about the Civil Service Acts.
The first of those Acts was enacted in 1868. 5 It did
not apply to employees of the House. Forty years
later, however, the scope of application of the then
existing Civil Service Act was enlarged by The
Civil Service Amendment Act, 1908, 6 so as to
include the employees of the House of Commons,
Senate and Library of Parliament. That change
was effected by subsection 3(2) and section 45 of
that Act.
3....
2. So much of this Act and of The Civil Service Act as
relates to appointment, classification, salaries and promotions
shall apply to the permanent officers, clerks and employees of
both Houses of Parliament and of the Library of Parliament.
45. Wherever under sections 5, 8, 10 (paragraph b of subsec
tion 1), 21, 22, 23, 24, 26 (subsection 2), 32, 33, 36 and 37
(subsection 4), of this Act or under The Civil Service Act, any
action is authorized or directed to be taken by the Governor in
Council or by order in council, such action, with respect to the
officers, clerks and employees of the House of Commons or the
Senate, shall be taken by the House of Commons or the Senate,
as the case may be, by resolution, and with respect to the
officers, clerks and employees of the Library of Parliament, and
to such other officers, clerks and employees as are under the
joint control of both Houses of Parliament, shall be taken by
both Houses of Parliament by resolution, or, if such action is
required during the recess of Parliament, by the Governor in
Council, subject to ratification by the two Houses at the next
ensuing session.
That situation, where most of the provisions of
the Civil Service Act applied to parliamentary
employees, was continued by section 34 of The
5 The Canada Civil Service Act, 1868, S.C. 1868, c. 34.
6 S.C. 1908, c. 15, subs. 3(2) and s. 45.
Civil Service Act, 1918' and subsisted until 1961.
In that year, a new Civil Service Act was adopted'
which did not apply to employees of the House of
Commons, Senate and Library of Parliament but
conferred on the House of Commons and Senate
the power to apply any of its provisions to their
officers, clerks and employees. Section 72 of that
Act, of which, we were told, the Senate and the
House never took advantage, read thus:
72. (1) The Senate and House of Commons may, in the
manner prescribed by subsections (2) and (3), apply any of the
provisions of this Act to the officers, clerks and employees of
both Houses of Parliament and of the Library of Parliament.
(2) Any action with respect to the officers, clerks and
employees of the Senate or the House of Commons authorized
or directed to be taken by the Senate or the House of Commons
under subsection (1), or by the Governor in Council under any
of the provisions of this Act made applicable to them under
subsection (1), shall be taken by the Senate or the House of
Commons, as the case may be, by resolution, or, if such action
is required when Parliament is not sitting, by the Governor in
Council, subject to ratification by the Senate or the House of
Commons, as the case may be, at the next ensuing session.
(3) Any action with respect to the officers, clerks and
employees of the Library of Parliament and to such other
officers, clerks and employees as are under the joint control of
both Houses of Parliament authorized or directed to be taken
by the Senate and House of Commons under subsection (1), or
by the Governor in Council under any of the provisions of this
Act made applicable to them under subsection (I), shall be
taken by both Houses of Parliament by resolution, or, if such
action is required when Parliament is not sitting, by the Gover
nor in Council, subject to ratification by both Houses of
Parliament at the next ensuing session.
(4) Nothing in this Act shall be construed to curtail the
privileges enjoyed by the officers, clerks and employees of the
Senate, House of Commons or Library of Parliament with
respect to rank and precedence, attendance, office hours or
leave of absence, or with respect to engaging in such employ
ment when Parliament is not sitting, as may entitle them to
receive extra salary or remuneration.
The Act of 1961 remained in force until 1967
when it was replaced by the Public Service
Employment Act 9 and the Public Service Staff
Relations Act 10 which do not apply to employees
of the Senate, the House and the Library of
S.C. 1918, c. 12.
8 S.C. 1960-61, c. 57.
9 S.C. 1966-67, c. 71, now R.S.C. 1970, c. P-32.
10 S.C. 1966-67, c. 72, now R.S.C. 1970, c. P-35.
Parliament and do not contain any provision simi
lar to section 72 of the Act of 1961.
The certification order here in issue was made
by the Board pursuant to Part V of the Canada
Labour Code. The predecessor of that part of the
Code was The Industrial Relations and Disputes
Investigation Act of 1948" which, like the present
Part V, provided for the certification of bargaining
agents and compulsory collective bargaining. That
Act had exactly the same scope of application as
Part V. 12 If, therefore, it is assumed for sake of
discussion that the present Part V applies to
employees of the House of Commons, it necessari
ly follows that the Act of 1948 also applied to
them. In other words, once the Act of 1948 came
into force, those employees, who, until then, had
been subject to the Civil Service Act in so far as
their appointment, classification, salaries and pro
motion were concerned were removed from the
scope of application of that Act and granted the
right, that was then denied to all other public
" S.C. 1948, c. 54.
12 The scope of application of the Act was described as
follows in section 53:
53. Part I of this Act shall apply in respect of employees
who are employed upon or in connection with the operation
of any work, undertaking or business that is within the
legislative authority of the Parliament of Canada including,
but not so as to restrict the generality of the foregoing,
(a) works, undertakings or businesses operated or carried
on for or in connection with navigation and shipping,
whether inland or maritime, including the operation of
ships and transportation by ship anywhere in Canada;
(b) railways, canals, telegraphs and other works and
undertakings connecting a province with any other or
others of the provinces, or extending beyond the limits of a
province;
(c) lines of steam and other ships connecting a province
with any other or others of the provinces or extending
beyond the limits of a province;
(d) ferries between any province and any other province or
between any province and any country other than Canada;
(e) aerodromes, aircraft and lines of air transportation;
(J) radio broadcasting stations;
(g) such works or undertakings as, although wholly situate
within a province, are before or after their execution
declared by the Parliament of Canada to be for the general
advantage of Canada or for the advantage of two or more
of the provinces; and
(h) any work, undertaking or business outside the exclusive
legislative authority of the legislature of any province;
and in respect of the employers of all such employees in their
relations with such employees and in respect of trade unions
and employers' organizations composed of such employees or
employers.
servants, of compulsory collective bargaining. In
those circumstances, one would have expected the
new Civil Service Act that came into force in 1961
not to have any application to those employees.
Indeed, its provisions are incompatible with com
pulsory collective bargaining. However, such was
not the case since the Civil Service Act of 1961, as
1 have already said, conferred on each House the
power to apply any provision of the Act to its
employees. Parliament, then, after having granted
to employees of both Houses the right to compul
sory collective bargaining in 1948, would, in 1961,
have given to their employers the discretionary
power to deprive them of that right. One should
refrain, in my view, from ascribing so absurd an
intention of Parliament.
All this shows, in my view, that Parliament
never intended the Industrial Relations and Dis
putes Investigation Act of 1948 to apply to
employees of the House. It follows that it never
intended, either, that Part V of the Canada
Labour Code should apply to them.
Of course, Parliament could have expressly
excluded the employees of the House and Senate
from the application of those statutes. However,
the reason why it did not deem it necessary to do it
is readily understood. It is a well established prin
ciple that an express provision of a statute is
necessary to abrogate a privilege of Parliament or
its members. 13 Now, parliamentarians, rightly or
wrongly, consider the right of the House and the
Senate to appoint and control their staff as one of
their privileges. 14
"Newcastle (Duke of) v. Morris (1870), L.R. 4 H.L. 661.
14 See: S.C. 1870, c. 4, s. 9, quoted above [at p. 377] after
footnote 3.
Beauchesne, Rules and Forms of the House of Commons of
Canada (4th ed.), p. 329, s. 446:
446. The control and management of the officers of the
Houses are as completely within the privilege of the Houses
as any regulation of its own proceedings within its own walls.
These officers are under the guidance of certain rules and
orders of the House which are among the regulation of its
(Continued on next page)
I will conclude with two observations. First, the
application of the Code to the House of Commons
would, in many instances, compel the House to
obey the decisions of the Minister of Labour and
the regulations of the Governor in Council; this is
a result which I find difficult to reconcile with the
independence of the House. Second, and more
importantly, the application of the Code to the
House would, in many cases, lead to a confronta
tion between the House and the Speaker, on the
one side, and the Board and the Court, on the
other; this is certainly to be avoided.
I would grant the application, set aside the order
under attack and refer the matter back to the
Board in order that it be decided on the basis that
Part V of the Canada Labour Code does not apply
to the employees of the House of Commons.
LACOMBE J.: I agree.
* * *
The following are the reasons for judgment
rendered in English by
Hua ESSEN J.: I have had the benefit of reading
the reasons for judgment prepared for delivery by
my brother, Pratte J.
(Continued from previous page)
proceedings and as essentially matters of privilege as the
appointment of committees, the conduct of public business
and the procedure of the Houses, generally, including the
acts of the Speaker himself in the Chair.
Maingot, Parliamentary Privilege in Canada (1982), p. 157
(where he lists the right of the House to appoint and
"manage" its staff as one of its privileges).
The situation is not different in the U.K. See: G. F. Lock,
"Labour Law, Parliamentary Staff and Parliamentary Privi
lege" (1983), 12 Industrial Law Journal 28. See, also, the
Hansard for October 29, 1975 (H.C. Deb. (U.K.) Vol. 898,
col. 1694) where it appears that, on the introduction in the
House of certain amendments to the Employment Protection
Bill and other labour laws having the effect of extending the
application of those laws to the staff of the House, the
Assistant Speaker drew the attention of the House to the fact
that privilege is involved in these amendments.
I am in general agreement with him and in
particular with his view, as I understand it, that as
a matter of ordinary statutory construction Part V
of the Canada Labour Code, like its predecessor,
The Industrial Relations and Disputes Investiga
tion Act, 15 was never intended to apply to the
employees whose certification is here under attack,
the staff of the House of Commons. Since that
view is enough to dispose of the present section 28
application, I would normally be content to say no
more. However, because of the importance of this
matter and in particular of its constitutional
dimensions, I think it appropriate to indicate very
briefly two further arguments which, in my opin
ion, also require the same result.
In the first place, I am of the view that the
House of Commons is not an "employer" within
the meaning given to that term by subsection
107(1) of the Canada Labour Code [as am. by
S.C. 1972, c. 18, s. 1], which defines an employer
as being a "person".
By no process of reasoning or of imagination can
I conceive of the House as being a person. It is an
assembly of persons, albeit, no doubt, the most
important one in the country. Nothing in the
Constitution Act, 1867 nor in the law, custom and
convention of the Constitution as I understand it,
gives to the House corporate status or personality.
Indeed everything points the other way. It is of the
essence of a corporation that it shall be perpetual.
But the House of Commons is by its nature an
ephemeral thing, having by constitutional prescrip
tion a maximum life span of five years. When the
House is dissolved it ceases to exist. It is presum
ably for this reason that it was thought necessary
to have a special statutory provision (section 18 of
the House of Commons Act) 16 for the Board of
Internal Economy, the body charged with "all
matters of financial and administrative policy
15 S.C. 1948, c. 54.
16 R.S.C. 1970, c. H-9 (as am. by S.C. 1985, c. 39, s. 1).
affecting the House of Commons, its offices and
its staff" to continue to operate following dissolu
tion. There is no similar provision with regard to
the House itself.
There is some suggestion in the authorities that
Parliament may be a corporation. Halsbury' 7 says:
... Parliament is a corporation aggregate consisting of the
Sovereign, the Lords Spiritual and Temporal, and the
Commons.
Two authorities are quoted in support of this
assertion. The first, Tone River, (Conservators of),
v. Ash,' 8 does not support the view taken by the
learned editor of Halsbury and the case appears to
stand for no more than the proposition that a
statute may create a corporation inferentially as
well as by express words.
The second authority is Cowell's Interpreter,
whose second edition, London, 1727, states:
Corporation Temporal by Authority of the Common Law, is
the Parliament, consisting of the King the Head; the Lords
Spiritual and Temporal, and Commons, the Body.
The statement in Cowell, although it does not
specifically so indicate, would, in its turn, appear
to have its source in a rather ambiguous reference
in Y.B. 14, Hen. VIII, page 3, whose approximate
rendition in môdern language would be
Jury est Corporation par le Common Law, comme le Parle-
ment du Roi, et Seigneurs, et les Communes sont une Corpo
ration ...
[TRANSLATION] A jury is a corporation at common law, as the
King in Parliament, the Lords and the Commons are a
corporation....
The inclusion of the jury in this reference, some
what like the thirteenth stroke of a clock, casts
doubt on all the rest; I can think of no body more
' 7 Laws of England, 4th ed., London, 1974, Vol. 9, para.
1231.
18 (1829), 109 E.R. 479 (K.B.).
ephemeral or less imbued with the usual attributes
of corporate status than the Common Law jury,
which came into being for one purpose only and
which ceased to exist as soon as that purpose was
accomplished or even sooner if one of its members
were to die.
Whatever be the status of Parliament, however,
there is no authority that I know of to indicate that
the House of Commons may be a person.
There is authority the other way. In Gabias c.
L'Assemblée législative de la province de
Québec, 19 the plaintiff, who had been expelled as a
sitting member of the Assembly, sought an injunc
tion to prevent the Assembly and its officers from
carrying out the resolution of expulsion. The pro
ceedings were dismissed on a preliminary question
of law, one of the grounds being the defendant's
absence of personality. Casgrain J., after quoting
sections 71 and 80 of the Constitution Act, 1867,
which provide for the Legislature and Legislative
Assembly of Quebec in terms indistinguishable
from what is found in sections 17 and 37 with
regard to the Parliament and House of Commons
of Canada, said as follows:
[TRANSLATION] There is thus nothing in these provisions
which confers on the Legislative Assembly a legal entity in the
legal sense, with the right to bring an action at law. All the
Constitution says is that the Legislative Assembly consists of
sixty-five representatives of the people (now ninety-five) who
meet at least once a year to enact legislation. It is a legislative
body which has no legal personality apart from that of each
member and which, accordingly, may not be used as such.
In my view, this reasoning applies with equal or
19 Unreported judgment, May 3, 1965, Superior Court, Dis
trict of Québec, No. 138-195. I am indebted to Professor
Stephen A. Scott, of the Faculty of Law of McGill University,
for sending me an unpublished note on this case including the
full text of the judgment. While the matter was widely reported
in the press at the time, it is a pity that it has not, as far as I
have been able to determine, found its way into any recognized
legal publication.
even greater force to the House of Commons. 20
Nor do I think that the decision in Public
Service Alliance of Canada v. Francis et al. 2 '
requires any different conclusion. That case con
cerned the certification granted by the Canada
Labour Relations Board for the employees of an
Indian Band Council. The Court held that the
Band Council, even though not an incorporated
body, was an employer for the purposes of Part V
of the Canada Labour Code. As I read that deci
sion, it is based on two principal considerations,
the first being that the Band Council was a crea
ture of statute whose statutory powers required the
employment of staff and the second being that, if
the Band Council were not the employer, there
was no one else who could be so considered.
While, in a sense, the House of Commons may
be said to be a creature of the Constitution Act,
1867, such a qualification, in my view, belittles
both the House and the Constitution. The House is
far more than a creature of the Constitution: it is
central to it and the single most important institu
tion of our free and democratic system of govern
ment. The Constitution, for its part, is far more
than a statute: it is the fundamental law of the
land.
Furthermore, the employees covered by the cer
tification presently under attack are not in the
position of the employees of the Band Council, for
whom there was no other possible employer. On
the contrary, the staff of the House are quite
simply, in my view, employees of the Crown.
20 It has not escaped my notice that, if the House lacks
personality, it logically must also lack the status to appear as
applicant in the present proceedings. The point however was
not taken and, since I have no doubt that standing would be
granted to an officer of the House to bring proceedings to set
aside an order which is, after all, a nullity, I do not think it
necessary to pursue the matter further. It is of some interest to
note that in the Gabias case, supra, the Assembly did not
appear and it was the Attorney General who came before the
Court to urge the nullity of the proceeding.
21 [1982] 2 S.C.R. 72.
This brings me to my second additional reason
for agreeing with the conclusion proposed by
Pratte J.: not only do I think that Part V of the
Canada Labour Code does not extend to the sub
ject employees and that the House is not an
employer within the meaning of the Code, it is also
my view that they are specifically excluded. The
relevant statutory provision is subsection 109(4)
[as am. by S.C. 1972, c. 18, s. 1]:
109....
(4) Except as provided by this section, this Part does not
apply in respect of employment by Her Majesty in right of
Canada.
I recognize that here I tread on delicate ground
for, while the matter was put to the parties at the
hearing, none were prepared to argue that the staff
of the House were employees of the Crown. The
reason is, of course, obvious. The House, for its
part, placed its claim on an assertion of privilege
and would not admit to any role of the Crown in
the matter while, for the respondents, such a
suggestion would be suicidal. It seems to me how
ever that the indications that the employees here in
question are in reality servants of the Crown are
very strong.
In the first place, as Pratte J. has pointed out,
the senior officers of the House are officers of the
Crown who are appointed by Order in Council. It
is they who, in their turn, actually hire and direct
the employees. Secondly, the sums for the payment
of the salaries and benefits of such employees are
dealt with in the various Appropriation Acts which
are, of course, as their titles say, Acts "for grant
ing to Her Majesty certain sums of money for the
Government of Canada". Under the general head
ing "Parliament", the Senate, the House of Com
mons and the Library of Parliament appear in the
Schedule to those Acts in their proper alphabetical
order along with all the other departments and
agencies of Government. 22
22 See, for example, S.C. 1984, c. 16 [Appropriation Act No.
2, 1984-85].
Finally, in many of the incidentals of their
employment the staff of the House of Commons
appears indistinguishable from other members of
the Public Service: they work in a building owned
by the Crown, their working tools, be they brooms,
telephones or computers, are public property, their
pay cheques come from the Department of Supply
and Services. They are not, of course, covered by
the Public Service Employment Act and by the
Public Service Staff Relations Act, but that is
very simply because those statutes are of limited
application to an enumerated (though vast) por
tion of the Public Service (see Schedule I of the
Public Service Staff Relations Act).
My views in this respect are not weakened by
decisions such as The Queen v. MacLean (1881), 8
S.C.R. 210, and Kimmitt v. The Queen (1896), 5
Ex.C.R. 130. As I read those cases, they stand for
no more than the simple proposition that the
Crown cannot be held to a contract entered into
without its privity by the House or by one of its
committees.
Nor do I see anything inimical to the House's
privileges in a finding that the employees are in
fact employees of the Crown. On the contrary, it
seems to me that one of those privileges is precisely
that the House shall have the direction and control
of its staff just as it does of its officers, the Clerk
and the Sergeant-at-Arms, even though they be
technically officers of the Crown. The Parliament
at Westminster sits in a royal palace; yet the
privilege of the House is such that the Sovereign
herself may not set foot within that precinct of
which she is in name the owner.
There is perhaps some analogy to be made here
to the third fundamental constituent of Govern
ment, the Judiciary. Courts also have been con
cerned for hundreds of years with protecting their
privileges against royal incursions. They have
managed to do so notwithstanding that they sit in
buildings owned by the Crown and are served by
its employees. If the staff of the courts of justice
are servants of the Crown, I know of no reason,
principle or authority which requires that the staff
of the House of Commons should be otherwise.
For these reasons, I would conclude as proposed
by Pratte J.
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