Consolidated Fastfrate Inc. v. Western Canada Council of Teamsters et al., (2009) 469 A.R. 50 (SCC)

• Judge: McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ.
• Court: Supreme Court (Canada)
• Case Date: February 19, 2009
• Jurisdiction: Canada (Federal)
• Citations: (2009), 469 A.R. 50 (SCC);2009 SCC 53

Consolidated Fastfrate v. Teamsters (2009), 469 A.R. 50 (SCC);

      470 W.A.C. 50

MLB headnote and full text

Temp. Cite: [2009] A.R. TBEd. NO.135

Consolidated Fastfrate Inc. (appellant) v. Western Canada Council of Teamsters, Consolidated Fastfrate Transport Employees' Association of Calgary and Alberta Labour Relations Board (respondents) and Attorney General of Ontario and Attorney General of Quebec (intervenors)

(32290; 2009 SCC 53; 2009 CSC 53)

Indexed As: Consolidated Fastfrate Inc. v. Western Canada Council of Teamsters et al.

Supreme Court of Canada

McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ.

November 26, 2009.

Summary:

Consolidated Fastfrate Inc. (Fastfrate) was a freight forwarding business with branches across Canada. The Consolidated Fastfrate Transport Employees' Association of Calgary (the Association) was certified by the Alberta Labour Relations Board (ALRB) to represent Fastfrate's Calgary employees. The Western Canada Council of Teamsters (the Teamsters) obtained a federal certification order from the Canada Industrial Relations Board (CIRB). The Association applied to the ALRB for declarations affirming its bargaining certificate, bargaining rights and collective agreement. The ALRB held that Fastfrate's labour relations were subject to federal jurisdiction. Fastfrate sought judicial review.

The Alberta Court of Queen's Bench, in a decision reported at (2005), 390 A.R. 354, allowed the application, quashing the ALRB decision and ordering that Fastfrate's labour relations continued to be governed by the provincial legislation. The ALRB certification order and the collective agreement between Fastfrate and the Association were affirmed. The Teamsters appealed.

The Alberta Court of Appeal, Conrad, J.A., dissenting, in a decision reported at (2007), 412 A.R. 97; 404 W.A.C. 97, allowed the appeal. The ALRB decision was restored. Fastfrate appealed.

The Supreme Court of Canada, McLachlin, C.J.C., Binnie and Fish, JJ., dissenting, allowed the appeal. The decision of the Court of Queen's Bench was restored. The labour relations of Fastfrate's Calgary operation were subject to provincial jurisdiction.

Constitutional Law - Topic 1003

Interpretation of Constitution Act - General principles - Division of legislative powers - [See second Constitutional Law - Topic 6642 ].

Constitutional Law - Topic 1014

Interpretation of Constitution Act - General principles - History - [See second Constitutional Law - Topic 6642 ].

Constitutional Law - Topic 6642

Federal jurisdiction (s. 91) - Interprovincial works and undertakings - Transportation (incl. railways) - Consolidated Fastfrate Inc. (Fastfrate) was a freight forwarding business with branches across Canada - Each branch collected and organized shipments within the province, but any interprovincial transport was contracted to third parties - At issue was whether labour relations for Fastfrate's Calgary branch fell under federal or provincial jurisdiction - The Supreme Court of Canada held that the labour relations of Fastfrate's Calgary operation were subject to provincial jurisdiction - The question was whether Fastfrate's provision of services qualified it as an interprovincial undertaking even though it did not itself perform any interprovincial carriage of goods - An undertaking that performed consolidation and deconsolidation and local pickup and delivery services did not become an interprovincial undertaking simply because it had an integrated national corporate structure and contracts with third party interprovincial carriers - In the absence of any interprovincial carriage performed by Fastfrate, itself, there was no compelling reason to depart from the general rule that works and undertakings were regulated by the provinces - See paragraphs 2 and 3.

Constitutional Law - Topic 6642

Federal jurisdiction (s. 91) - Interprovincial works and undertakings - Transportation (incl. railways) - Consolidated Fastfrate Inc. (Fastfrate) was a freight forwarding business with branches across Canada - Each branch collected and organized shipments within the province, but any interprovincial transport was contracted to third parties - At issue was whether labour relations for Fastfrate's Calgary branch fell under federal or provincial jurisdiction - The Supreme Court of Canada held that the labour relations of Fastfrate's Calgary operation were subject to provincial jurisdiction - Section 92(10)(a) of the Constitution Act, 1867 provided a limited exception to the provincial authority regarding "local works and undertakings" for federal jurisdiction over "Lines of Steam or other Ships, Railways, Canals, Telegraphs, and other Works and Undertakings connecting the Province with any other or others of the Provinces, or extending beyond the Limits of the Province" - The court discussed the historical context of s. 92(10)(a) and its underlying purpose, noting that while the historical origins of s. 92(10)(a) illuminated the principled vision of federalism behind it, the words had to be considered on their own terms - The phrase "other works or undertakings connecting the province with any other" had to be read ejusdem generis with the specific examples that preceded it - The common thread among the enumerated transportation works and undertakings in s. 92(10)(a) was the interprovincial transport of goods or persons - There was no reference to, or implication of, third parties connected to the means of actual transport through contracts being subject to federal jurisdiction - The genus of the "works and undertakings" contemplated in s. 92(10)(a) was a physical connection, not a notional one through contract - Therefore, a requirement for federal jurisdiction over transportation undertakings was that the undertaking, itself, physically operated or facilitated carriage across interprovincial boundaries - This approach best reflected the text of s. 92(10) and preserved the historical intent of the Constitution Act, 1867, which saw federal jurisdiction over both works and undertakings and labour relations as the exception, rather than the rule - See paragraphs 31 to 44.

Constitutional Law - Topic 6642

Federal jurisdiction (s. 91) - Interprovincial works and undertakings - Transportation (incl. railways) - Consolidated Fastfrate Inc. (Fastfrate) was a freight forwarding business with branches across Canada - Each branch collected and organized shipments within the province, but any interprovincial transport was contracted to third parties - At issue was whether labour relations for Fastfrate's Calgary branch fell under federal or provincial jurisdiction - The Supreme Court of Canada held that the labour relations of Fastfrate's Calgary operation were subject to provincial jurisdiction - The court discussed the jurisprudential history of freight forwarding, noting that interpretive consistency in the s. 92(10) context was important both to preserve the federal-provincial balance and to allow regulators to know the extent of their jurisdiction and parties to reasonably predict the jurisdiction under which they fell - There was an existing body of freight-forwarding jurisprudence that had been cited approvingly - The court agreed with the line of cases holding that freight forwarders that were not themselves engaged in the interprovincial transport of freight and that simply contracted with interprovincial carriers remained subject to provincial jurisdiction - The objective of predictability in the freight-forwarding context strongly suggested that the industry should be considered holistically and that the prior jurisprudence of the courts concerning the industry should be respected - See paragraphs 45 to 67.

Constitutional Law - Topic 6642

Federal jurisdiction (s. 91) - Interprovincial works and undertakings - Transportation (incl. railways) - Consolidated Fastfrate Inc. (Fastfrate) was a freight forwarding business with branches across Canada - Each branch collected and organized shipments within the province, but any interprovincial transport was contracted to third parties - At issue was whether labour relations for Fastfrate's Calgary branch fell under federal or provincial jurisdiction - The Supreme Court of Canada held that the labour relations of Fastfrate's Calgary operation were subject to provincial jurisdiction - Fastfrate's operations were entirely intraprovincial - The court rejected the argument that Fastfrate's web of contractual relations with third-party carriers and its customers meant that it functioned as an undertaking connecting the provinces pursuant to s. 92(10)(a) of the Constitution Act, 1867 - Contracting alone did not make intraprovincial undertakings subject to federal jurisdiction - There was no justifiable basis for expanding the scope of s. 92(10)(a) in the manner proposed - Nor would merely facilitating interprovincial transport, without something more, attract federal jurisdiction - The "something more" that would be required was the "actual transportation of goods or persons across provincial boundaries" - A shipper, whether it was a plant that shipped its own rail cars or a freight forwarder that shipped its own boxes or envelopes, still remained a shipper - The business that performed the interprovincial transportation, i.e., the carrier that crossed provincial boundaries, was the undertaking that attracted federal jurisdiction under s. 92(10)(a) - The operations of Fastfrate were not in this category - See paragraphs 68 to 80.

Constitutional Law - Topic 6686

Federal jurisdiction (s. 91) - Federal works and undertakings - Ancillary powers - Labour relations - [See all Constitutional Law - Topic 6642 ].

Constitutional Law - Topic 7080

Provincial jurisdiction (s. 92) - Local works and undertakings - Transportation - [See all Constitutional Law - Topic 6642 ].

Courts - Topic 19

Stare decisis - Authority of judicial decisions - Constitutional issues - [See third Constitutional Law - Topic 6642 ].

Labour Law - Topic 576

Labour relations boards and judicial review - Judicial review - General - Standard of review - Consolidated Fastfrate Inc. (Fastfrate) was a freight forwarding business with branches across Canada - Transport across provincial boundaries was contracted to third parties - The Teamsters obtained a federal certification order that consolidated multiple Fastfrate bargaining units, including one in Calgary that was already represented by the defendant Association - The Alberta Labour Relations Board (ALRB) dismissed the Association's application for declarations affirming its bargaining rights, holding that Fastfrate's labour relations were subject to federal jurisdiction - Fastfrate's application for judicial review was allowed - The ALRB decision was quashed - The Teamsters' appeal was allowed - Fastfrate appealed - The Supreme Court of Canada agreed with the parties that the applicable standard of review in cases of constitutional interpretation was correctness - However, the ALRB's constitutional analysis rested on its factual findings - Where it was possible to treat the constitutional analysis separately from the factual findings that underlay it, curial deference was owed to the initial findings of fact - The ALRB's factual findings regarding the operations and organizational structure of Fastfrate merited deference - See paragraph 26.

Statutes - Topic 502

Interpretation - General principles - Intention of legislature - [See second Constitutional Law - Topic 6642 ].

Statutes - Topic 1604

Interpretation - Extrinsic aids - History - [See second Constitutional Law - Topic 6642 ].

Statutes - Topic 2584

Interpretation - Interpretation of words and phrases - Ejusdem generis rule - When rule applies - General words following particular words - [See second Constitutional Law - Topic 6642 ].

Cases Noticed:

Consolidated Fastfrate Inc. v. Western Canada Council of Teamsters et al. (2005), 114 C.L.R.B.R.(2d) 1, refd to. [para. 4].

Reference re Industrial Relations and Disputes Investigation Act, [1955] S.C.R. 529, refd to. [para. 11].

General Teamsters, Local 362 v. D.H.L. International Express Ltd. (1984), 27 C.L.R.B.R.(2d) 95, disapproved [para. 12]; refd to. [para. 114].

Cannet Freight Cartage Ltd., Re, [1976] 1 F.C. 174; 11 N.R. 606 (F.C.A.), refd to. [para. 13]; dist. [para. 112].

R. v. Cottrell Forwarding Co. (1981), 33 O.R.(2d) 486; 124 D.L.R.(3d) 674 (Div. Ct.), refd to. [paras. 13, 111].

Consolidated Fastfrate Inc. v. Western Canada Council of Teamsters et al. (2005), 390 A.R. 354; 59 Alta. L.R.(4th) 266; 2005 ABQB 977, refd to. [para. 14].

Consolidated Fastfrate Inc. v. Western Canada Council of Teamsters et al. (2007), 412 A.R. 97; 404 W.A.C. 97; 79 Alta. L.R.(4th) 201; 2007 ABCA 198, refd to. [paras. 17, 88].

Cuddy Chicks Ltd. v. Labour Relations Board (Ont.) et al., [1991] 2 S.C.R. 5; 122 N.R. 361; 47 O.A.C. 271, refd to. [para. 26].

Lévis (City) v. Fraternité des policiers de Lévis Inc. et al., [2007] 1 S.C.R. 591; 359 N.R. 199; 2007 SCC 14, refd to. [para. 26].

Toronto Electric Commissioners v. Snider, [1925] A.C. 396 (P.C.), refd to. [para. 27].

Northern Telecom Ltd. v. Communications Workers of Canada and Canada Labour Relations Board, [1980] 1 S.C.R. 115; 28 N.R. 107, refd to. [paras. 28, 85].

Canadian Western Bank et al. v. Alberta, [2007] 2 S.C.R. 3; 362 N.R. 111; 409 A.R. 207; 402 W.A.C. 207, refd to. [paras. 29, 89].

R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; 58 N.R. 81; 60 A.R. 161, refd to. [para. 32].

R. v. Blais (E.L.J.), [2003] 2 S.C.R. 236; 308 N.R. 371; 180 Man.R.(2d) 3; 310 W.A.C. 3; 2003 SCC 44, refd to. [para. 32].

Quebec (Commission du salaire minimum) v. Bell Telephone Co. of Canada, [1966] S.C.R. 767, refd to. [paras. 41, 98].

Radio Communication in Canada (Regulation and Control of), Re, [1932] A.C. 304 (P.C.), refd to. [paras. 41, 98].

Ontario (Attorney General) v. Winner, [1954] A.C. 541; [1954] 4 D.L.R. 657 (P.C.), refd to. [paras. 41, 98].

Consumers' Association of Canada v. Postmaster General, [1975] F.C. 11; 11 N.R. 181 (F.C.A.), refd to. [para. 42].

United Transportation Union et al. v. Central Western Railway Corp., [1990] 3 S.C.R. 1112; 119 N.R. 1, refd to. [paras. 46, 82].

Ottawa-Carleton Regional Transit Commission v. Amalgamated Transit Union, Local 279 et al. (1983), 1 O.A.C. 177; 4 D.L.R.(4th) 452 (C.A.), refd to. [para. 59].

Dionne et al. v. Public Service Board (Que.) et al., [1978] 2 S.C.R. 191; 18 N.R. 271, refd to. [paras. 60, 87].

CNCP Telecommunications v. Alberta Government Telephones and CRTC, [1989] 2 S.C.R. 225; 98 N.R. 161, refd to. [paras. 63, 85].

Windsor Airline Limousine Services Ltd. v. U.S.W.A. (1999), 56 C.L.R.B.R.(2d) 70, refd to. [para. 70].

Canadian Pacific Railway Co. v. British Columbia (Attorney General), [1950] A.C. 122 (P.C.), refd to. [para. 73].

Montreal (City) v. Montreal Street Railway, [1912] A.C. 333 (P.C.), refd to. [para. 78].

Québec (Procureur général) v. Téléphone Guévremont Inc. (1992), 99 D.L.R.(4th) 241 (Que. C.A.), affd. [1994] 1 S.C.R. 878; 168 N.R. 7; 61 Q.A.C. 175, refd to. [para. 99].

Capital Cities Communications Inc. et al. v. Canadian Radio-Television Commission et al., [1978] 2 S.C.R. 141; 18 N.R. 181, refd to. [para. 107].

Statutes Noticed:

Constitution Act, 1867, sect. 91(29), sect. 92(10)(a), sect. 92(13) [para. 25].

Authors and Works Noticed:

Browne, Gerald Peter, Documents on the Confederation of British North America (1969), pp. 158 to 161 [para. 34].

Canada, Parliamentary Debates on the subject of the Confederation of the British North American Provinces, 3rd Sess., 8th Parliament (February 6, 1865), generally [para. 33].

Coyne, H.E.B., The Railway Law of Canada (1947), pp. v, vi [para. 38].

English, H.E., Telecommunications for Canada, An Interface of Business and Government, p. 360 [para. 97].

Fraser, I.H., Some Comments on Subsection 92(10) of the Constitution Act, 1867 (1984), 29 McGill L.J. 557, p. 605 [para. 42].

Hogg, Peter W., Constitutional Law of Canada (5th Ed.) (2007 Looseleaf Supp.), vol. 1, pp. 476 [para. 32]; 645 [para. 42]; 646 [para. 66]; 654 [para. 75].

Kennedy, W.P.M., Documents of the Canadian Constitution 1759-1915 (1918), p. 613 [para. 33].

Kennett, Steven A., Jurisdictional Uncertainty and Pipelines: Is a Judicial Solution Possible? (1996), 35 Alta. L. Rev. 553, generally [para. 12].

Labour Law Casebook Group, Labour and Employment Law: Cases, Materials, and Commentary (7th Ed. 2004), p. 85 [para. 27].

Lederman, W.R., Telecommunications and the Federal Constitution of Canada, in English, H.E., Telecommunications for Canada: An Interface of Business and Government, p. 360 [para. 97].

McNairn, Colin H., Transportation, Communication and the Constitution: The Scope of Federal Jurisdiction (1969), 47 Can. Bar Rev. 355, pp. 355 [para. 36]; 359 [para. 42].

Simeon, Richard, Division of Powers and Public Policy (1985), pp. 44, 45 [para. 36].

Whyte, John D., Constitutional Aspects of Economic Development Policy in Simeon, Richard, Division of Powers and Public Policy (1985), pp. 44, 45 [para. 36].

Counsel:

Thomas W.R. Ross and Trisha Gain, for the appellant;

Clayton Cook, for the respondent, the Western Canada Council of Teamsters;

Shawn W. McLeod, for the respondent, the Alberta Labour Relations Board;

No one appearing for the respondent, the Consolidated Fastfrate Transport Employees' Association of Calgary;

Michael T. Doi and Mark Crow, for the intervenor, the Attorney General of Ontario;

Alain Gingras, for the intervenor, the Attorney General of Quebec.

Solicitors of Record:

McLennan Ross, Calgary, Alberta, for the appellant;

McGown, Johnson, Calgary, Alberta, for the respondent, the Western Canada Council of Teamsters;

Alberta Labour Relations Board, Edmonton, Alberta, for the respondent, the Alberta Labour Relations Board;

Attorney General of Ontario, Toronto, Ontario, for the intervenor, the Attorney General of Ontario;

Attorney General of Quebec, Sainte-Foy, Quebec, for the intervenor, the Attorney General of Quebec.

This appeal was heard on February 19, 2009, by McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ., of the Supreme Court of Canada. On November 26, 2009, the court's decision was delivered in both official languages with the following opinions:

Rothstein, J. (LeBel, Deschamps, Abella, Charron and Cromwell, JJ., concurring) - see paragraphs 1 to 81;

Binnie, J. (McLachlin, C.J.C., and Fish, J., concurring), dissenting - see paragraphs 82 to 119.