A-360-77
Holmes Transportation (Quebec) Ltd< (Petition-
er)
v.
Transport Drivers, Warehousemen and General
Workers, Local 106 (Respondent)
Court of Appeal, Jackett C.J., Pratte and Le Dain
JJ.—Montreal, December 13, 1977.
Judicial review — Labour relations — Application to set
aside order of Canada Labour Relations Board certifying
respondent as bargaining agent for employees of applicant's
trucking operation — Allegation of bias — No bias proved —
Court cannot interfere with Board's decision — Federal Court
Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28(1)(b),(c).
Jurisdiction — Allegation that trucking operation is local
undertaking in Province of Quebec — Trailers belonging to
related U.S. company — Applicant carrying out Canadian
portion of carrying goods between U.S. points to Canadian
points — Deemed international trucking operation and conse
quently under federal jurisdiction — The British North
America Act, 1867, (R.S.C. 1970, Appendix II) ss. 91(29) and
92(10) — Canada Labour Code, R.S.C. 1970, c. L-1, s. 2.
Attorney-General for Ontario v. Winner [1954] A.C. 541,
followed. Kootenay and Elk Railway Co. v. Canadian
Pacific Railway Co. [1974] S.C.R. 955, followed.
APPLICATION for judicial review.
COUNSEL:
Bernard K. Schneider for petitioner.
Robert Castiglio for respondent.
L. M. Huart for Canada Labour Relations
Board.
Gaspard Côté, Q.C., for Attorney General of
Canada.
Pierre-Paul Vigneault for Attorney General
of Quebec.
SOLICITORS:
Bernard K. Schneider, Montreal, for petition
er.
Décary, Jasmin, Rivest, Laurin & Castiglio,
Montreal, for respondent.
Canada Labour Relations Board, Ottawa, for
Canada Labour Relations Board.
Deputy Attorney General of Canada for
Attorney General of Canada.
Deputy Minister of Justice, Quebec, for
Attorney General of Quebec.
The following are the reasons for judgment
delivered orally in English by
JACKETT C.J.: This is a section 28 application to
set aside an order of the Canada Labour Relations
Board certifying the respondent as bargaining
agent for a unit of employees engaged on the
applicant's trucking operation.
Two attacks were made on the validity of that
order.
The first attack was that the Board had no
jurisdiction to make the order because the appli
cant's trucking operation is a local undertaking in
the Province of Quebec.
With reference thereto, it is to be noted that this
Court has not been asked to receive any evidence
but has been asked to find, on the evidence that
was before the Board, that the applicant's trucking
activities were not, as such, within the legislative
jurisdiction of the Parliament of Canada.
The significant facts, established on a balance of
probability by that evidence as I appreciate it, are:
(a) that such activities consist, for the most
part, of using the applicant's drivers and tractors
to haul trailers belonging to a related United
States company, and
(b) that the applicant is carrying out the
Canadian portion of the carrier's obligations
under contracts for the carriage of goods be
tween United States points on the one hand and
Canadian points on the other hand.
I am not prepared to enunciate a test whereby it
may be determined whether particular trucking
activities in Canada constitute
(i) a local undertaking in a province (with inci
dental interchange arrangements with interna
tional or interprovincial undertakings), or
(ii) an integral part of an interprovincial or
international trucking operation.
Nevertheless, in my view, having regard only to
the evidence that is before us, the applicant's
trucking activities are an integral part of an inter
national trucking operation. As such, in my view,
they fall within the legislative jurisdiction of the
Parliament of Canada under section 91(29) of the
British North America Act, 1867, read with sec
tion 92(10) thereof, and they also fall within the
definition of "federal work, undertaking or busi
ness" in the Canada Labour Code'.
The second attack made on the certification
order was against the validity of the Board's find
ing of fact concerning support of the employees for
the respondent union.
That attack was based, in part, on what is, in
effect, an allegation of bias. The submission was
that the finding of fact was against the weight of
evidence and must, therefore, have been actuated
by bias. In my view, such submission is based on a
non-sequitur. Furthermore, the allegation of bias
having been made, I should say that a study of the
proceedings does not, in my view, reveal any possi
ble ground for a suggestion of bias.
Apart from bias, the only submission in support
of the attack on the Board's finding of fact was an
attempt to have this Court review that finding of
fact. In my view, it is clear that there was evidence
on which a fact finding tribunal, properly instruct
ed as to the law, could have reached the conclusion
that the Board did reach. It follows that this Court
cannot interfere with the Board's decision under
section 28(1)(b) of the Federal Court Act. Fur
thermore, in the absence of evidence on which this
Court can find that such finding was "erroneous",
there is no basis for interference with the Board's
' Any doubt that such provisions would extend to a trucking
operation was, in my view, removed by Attorney-General for
Ontario v. Winner [1954] A.C. 541. I find support for the view
that activities can be an integral part of such an international
undertaking, even though they are carried on in a particular
province by a person who has no direct interest in the balance
of the undertaking, in the opinions expressed, concerning rail
ways, in Kootenay and Elk Railway Company v. Canadian
Pacific Railway Company [1974] S.C.R. 955.
decision under section 28(1)(c) of the Federal
Court Act.
In my view, for the above reasons, the section 28
application should be dismissed.
* * *
PRATTE J. concurred.
* * *
The following are the reasons for judgment
delivered orally in English by
LE DAIN J.: I agree that the application should
be dismissed. The facts found by the Board show
that the applicant is engaged with the American
company, to which it is related by common owner
ship, in an integrated transportation undertaking
of an extraprovincial or international character.
This is not a case of independent connecting carri
ers, each engaged in general transportation opera
tions from one point of origin or destination to
another. The applicant's transportation activity be
tween Montreal and Phillipsburg would not exist
without that of the American company. This is
clearly indicated by the terms of its trucking
permit, which contains the following conditions:
1. The service under clauses e) and f) shall be operated solely
for the purpose of giving a service for the transportation of
merchandise originating at/or destined to points in the United
States which HOLMES TRANSPORTATION INC. may serve
directly or indirectly by transhipment, in accordance with
certificate of public convenience and necessity No. MC-30139
issued by the Interstate Commerce Commission, on April 13th,
1966.
2. The service given under clauses e) and f) of this permit must
be conducted by transhipment at the Canadian Customs
House, Phillipsburg, with HOLMES TRANSPORTATION INC. or
by interchange of trailers with HOLMES TRANSPORTATION
INC., on the condition, however, that the said trailers or semi
trailers are registered in accordance with the regulations of the
Board and the Laws of the Province of Quebec; it is under
stood, however, that any reciprocity agreement between the
Province of Quebec and the State of Maine with respect to the
registration of trailers shall apply only to trailers owned or
operated by HOLMES TRANSPORTATION INC. on an exclusive
use basis for one year or more, provided a copy of the lease is
filed with the Quebec Transport Commission.
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.