Case: Ramkey Communications Inc. v. Labourers’ International Union of North America, 2019 ONCA 859 (CanLII)
Keywords: labour relations; certification; presumptive constitutional jurisdiction; derivative jurisdiction
The Appellant Labourers’ International Union of North America applies to the Ontario Labour Relations Board to certify a group of Ontario construction labourers employed by the Respondent, Ramkey Communications Inc.
The Respondent opposes certification, arguing the workers’ labour relations should be federally regulated since they perform “essential work” for federally regulated telecommunications companies.
The Board grants certification on the basis the presumption of provincial jurisdiction is not displaced. On judicial review, the Divisional Court quashes the Board’s decision on the basis Ramkey’s construction technicians are engaged in “essential” federal undertakings. The Court of Appeal disagrees.
The Court of Appeal concludes the Divisional Court erred “…by failing to give effect to the Board’s clear finding that Rogers was not dependent on the services of Ramkey’s construction technicians” and declines to impose “exceptional federal jurisdiction” in this case.
Who has jurisdiction over construction labourers employed in Ontario? Ultimately, the answer depends on the presumption of constitutional jurisdiction over labour relations. As stated by the Court of Appeal, “…the presumption, absent evidence to the contrary, is that those employees are subject to provincial jurisdiction.” (See para. 57).
Since Provinces enjoy authority over property and civil rights under s. 92(13) of the Constitution Act, 1867, labour relations are considered to be a provincial matter except in two circumstances:
- when the employment relationship in question relates to a work, undertaking, or business within the legislative authority of Parliament; or
- when it is an integral part of a federally regulated undertaking. (See para. 32).
For the Court of Appeal, this case deals with that second scenario only. Practically speaking, the question for the Court was whether the employment of Ramkey’s technicians was an integral part of a telecommunications network such that Parliament enjoys “derivative jurisdiction” over it. (See para. 33).
The “heart” of this case is whether the Divisional Court applied the test (as recently articulated by the Supreme Court of Canada in Tessier Ltée v. Quebec (Commission de la santé et de la sécurité du travail), 2012 SCC 23 (CanLII)) for displacing presumptive jurisdiction correctly. That ends up becoming a very fact-specific endeavour:
As Tessier instructs, at para. 46, I therefore consider the relationship from the perspective of the federal undertaking and of the construction work said to be integrally related, assessing (1) how important Ramkey’s construction services for the federal undertaking were to Ramkey’s construction division, and (2) the extent to which the effective performance of the federal undertaking was dependent on Ramkey’s construction services. (See para. 62).
Although the Court of Appeal noted Rogers had been Ramkey’s “dominant client” (see para. 63), the Court concluded Parliament did not enjoy jurisdiction over these workers:
I acknowledge that, in Tessier, Abella J. observed, at para. 45, that the test for derivative federal jurisdiction is flexible: “Different decisions have emphasized different factors and there is no simple litmus test”. Here, however, in the absence of dependency – and in circumstances where Ramkey’s construction technicians ceased to do any work for Rogers – it simply cannot be said that Ramkey’s construction technicians are vital or integral to Rogers’ operations as a federal telecommunications undertaking.
Respectfully, the Divisional Court erred by considering the extent to which the delivery of telecommunications services by Rogers and other telecommunications companies like Rogers was dependent on having a functioning network line and on work of the type performed by Ramkey’s construction technicians. The proper focus is the extent to which Rogers and the other telecommunications companies, to which Ramkey’s construction technicians provided construction services, were dependent on the services of Ramkey’s construction technicians — the particular employees under scrutiny: Tessier, at para. 38. (See paras. 65-66).
That being said, the Court of Appeal cautioned against interpreting its decision as having endorsed the full reasons of the Board. For example, citing Construction Montcalm Inc. v. Min. Wage Com., 1978 CanLII 18 (SCC), the Board had suggested there was a special “construction presumption” in favour of the Province – even when the employees in question are constructing a federally regulated undertaking. (See para. 18). The Court of Appeal explicitly did not agree with the Board on this point. (See para. 68). It remains to be seen whether the parties will seek leave to appeal and test the Supreme Court of Canada’s appetite to weigh in on these points of disagreement.
Counsel for the Appellant Labourers’ International Union of North America: Lorne Richmond and Ben Katz (Goldblatt Partners LLP, Toronto)
Counsel for the Respondent Ramkey Communications Inc.: Frank Cesario (Hicks Morley Hamilton Stewart Storie LLP, Toronto) and Amanda Cohen (Holzman, Judith, Law Offices, Maple)
Counsel for the Respondent Utility Contractors Association of Ontario: Bonnea Channe and Giovanna Di Sauro (Filion Wakely Thorup Angeletti LLP, Toronto)
Counsel for the Respondent Ontario Labour Relations Board: Aaron Hart (Ontario Labour Relations Board, Toronto)
Counsel for the Intervener Attorney General of Ontario: Courtney Harris and Ravi Amarnath (Constitutional Law Branch, Minister of the Attorney General (ON), Toronto)