Southeast Resource Development Council Corp. v. United Food and Commercial Workers Union, Local 832 et al., (2004) 182 Man.R.(2d) 161 (QB)

• Jurisdiction: Manitoba
• Judge: McKelvey, J.
• Neutral Citation: 2004 MBQB 35
• Citation: (2004), 182 Man.R.(2d) 161 (QB),2004 MBQB 35,[2004] 8 WWR 633,[2004] CarswellMan 99,182 Man R (2d) 161,182 ManR(2d) 161,(2004), 182 ManR(2d) 161 (QB),182 Man.R.(2d) 161
• Date: 01 March 2004
• Court: Court of Queen's Bench of Manitoba (Canada)

Southeast Resource v. UFCW (2004), 182 Man.R.(2d) 161 (QB)

MLB headnote and full text

Temp. Cite: [2004] Man.R.(2d) TBEd. MR.061

Southeast Resource Development Council Corp. operating as Southeast Medical Referral Services (applicant) v. United Food and Commercial Workers Union, Local No. 832 and The Manitoba Labour Board (respondents)

(CI 03-01-33307; CI 03-01-35170; 2004 MBQB 35)

Indexed As: Southeast Resource Development Council Corp. v. United Food and Commercial Workers Union, Local 832 et al.

Manitoba Court of Queen's Bench

Winnipeg Centre

McKelvey, J.

March 1, 2004.

Summary:

Southeast Medical Referral Services applied for judicial review of a decision of the Manitoba Labour Board certifying the United Food and Commercial Workers Union as the bargaining agent for Southeast employees and imposing a first collective agreement between the parties.

The Manitoba Court of Queen's Bench dismissed the application.

Constitutional Law - Topic 6364

Federal jurisdiction (s. 91) - Indians and lands reserved for Indians - Labour relations - Southeast Medical Referral Services was incorporated in Manitoba and provided coordination and delivery of services in Winnipeg for status Indians in Manitoba, Ontario and Saskatchewan - Southeast ap-plied for judicial review of a decision of the Manitoba Labour Board certifying the United Food and Commercial Workers Union as the bargaining agent for Southeast employees - Southeast argued that the Board lacked jurisdiction to certify a union as Southeast's operations were an integral part or necessarily incidental to federal jurisdiction pursuant to s. 91(24) of the Constitution Act, 1867 and therefore the Manitoba Labour Relations Act was not applicable - The Manitoba Court of Queen's Bench dismissed the application - The court held that the Board made no errors in finding that the normal activities of Southeast consisted of transportation, travel and accommodation arrangements, which were not demonstrative of the characteristics required to place it at the core of federal jurisdiction over Indians - Labour relations did not go to the core of "Indianness" - It involved collective bargaining with a Manitoba corporation - See paragraphs 38 to 42.

Constitutional Law - Topic 6641

Federal jurisdiction (s. 91) - Interprovincial works and undertakings - General - Southeast Medical Referral Services was incorporated in Manitoba and provided coordination and delivery of services in Winnipeg for status Indians in Manitoba, Ontario and Saskatchewan - Southeast applied for judicial review of a decision of the Manitoba Labour Board certifying the United Food and Commercial Workers Union as the bargaining agent for Southeast employees - Southeast argued that the Board lacked jurisdiction to certify a union as Southeast's operations were inter-provincial because a number of aboriginals came to Winnipeg for medical treatment from Ontario and Saskatchewan and Southeast were therefore under federal jurisdiction pursuant to s. 91(29) of the Constitution Act, 1867 - The Manitoba Court of Queen's Bench dismissed the application - The court held that Southeast's actual services, being medical travel, interpretation and escorts, were undertaken in the Province of Manitoba - The drivers and dispatchers operated almost exclusively in Winnipeg - Accordingly, Southeast was not under federal jurisdiction - See paragraphs 36 and 37.

Labour Law - Topic 438

Labour relations boards and judicial review - Boards - Jurisdiction - Provincial boards - [See Constitutional Law - Topic 6364 ].

Labour Law - Topic 604

Labour relations boards and judicial review - Judicial review - Jurisdiction - Provincial Boards - Whether decision patently unreasonable - Southeast Medical Referral Services applied for judicial review of a decision of the Manitoba Labour Board imposing a first collective agreement between the parties - Southeast argued that the Board's decision in relation to wages, paid lunch hours and seniority was patently unreasonable - Southeast submitted that the Board erred in dismissing evidence that was indicative of financial difficulty and accepting evidence of wage levels of similar corporations in the industry - The Manitoba Court of Queen's Bench rejected the argument and dismissed the application - The court held that under the Board's jurisdiction to mandate a first collective agreement pursuant to s. 87 of the Manitoba Labour Relations Act, the Board was entitled to review and weigh evidence of similar corporations under s. 87(6)(a) - The court held that the Board had reviewed and weighed all evidence available to it and the decision was not patently unreasonable - See paragraphs 66 to 72.

Labour Law - Topic 810

Labour relations boards and judicial review - Procedure - Evidence - General - Southeast Medical Referral Services applied for judicial review of a decision of the Manitoba Labour Board certifying the United Food and Commercial Workers Union as the bargaining agent for Southeast employees and imposing a first collective agreement between the parties - Southeast sought to file two affidavits in support of the application - The Manitoba Court of Queen's Bench held that it had to proceed with caution when considering new evidence on an application for judicial review because if significant affidavit material was allowed, a different case might be before the court than was before the Board - The court refused to admit the affidavits - The court held that "there is no material in either affidavit, which, given any weight or sufficiency, would have affected the arguments already in existence before the Board and before me" as the affidavits related to the financial situation of Southeast - See paragraphs 73 to 83.

Cases Noticed:

Montcalm Construction Inc. v. Minimum Wage Commission (Que.) et al., [1979] 1 S.C.R. 754; 25 N.R. 1; 93 D.L.R.(3d) 641, refd to. [para. 6].

Four B. Manufacturing Ltd. v. United Garment Workers of America et al., [1980] 1 S.C.R. 1031; 30 N.R. 421; 102 D.L.R.(3d) 385, folld. [para. 7].

R. v. Dick, [1985] 2 S.C.R. 309; 62 N.R. 1, refd to. [para. 11].

Delgamuukw et al. v. British Columbia et al., [1997] 3 S.C.R. 1010; 220 N.R. 161; 99 B.C.A.C. 161; 162 W.A.C. 161, refd to. [para. 11].

Saskatchewan Indian Gaming Authority Inc. v. National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada) et al. (2000), 193 Sask.R. 9 (Q.B.), refd to. [para. 14].

Letter Carriers Union v. Canadian Union of Postal Workers (1973), 40 D.L.R.(3d) 105 (S.C.C.), consd. [para. 16].

St. Regis Indian Band Council v. Canada Labour Relations Board et al., [1981] 1 F.C. 225; 33 N.R. 56 (F.C.A.), refd to. [para. 19].

R. v. Paul Indian Band and Alberta (Attorney General) and Canada (Attorney General), [1984] 1 C.N.L.R. 87; 50 A.R. 190 (C.A.), refd to. [para. 19].

Qu'Appelle Indian Residential School Council v. Canadian Human Rights Commission et al., [1988] 2 F.C. 226; 14 F.T.R. 31 (T.D.), refd to. [para. 19].

Sappier v. Tobique Indian Band (Council) (1988), 87 N.R. 1 (F.C.A.), refd to. [para. 19].

Sagkeeng Alcohol Rahab Centre Inc. v. Abraham et al., [1994] 3 F.C. 449; 79 F.T.R. 53 (T.D.), consd. [para. 19].

Nisga'a Valley Health Board v. B.C. Government & Services Employees' Union (1995), 27 C.L.R.B.R.(2d) 301 (B.C.L.R.B.), consd. [para. 19].

Kitkatla Indian Band et al. v. British Columbia (Minister of Small Business, Tourism and Culture) et al. (2002), 286 N.R. 131 (S.C.C.), refd to. [para. 38].

Native Child & Family Services of Toronto v. Canadian Union of Public Employees, [1995] O.L.R.D. No. 4298, refd to. [para. 39].

Syndicat national des employés de la commission scolaire régionale de l'Outaouais (CSN) v. Union des employés de service, local 298 (FTQ), [1988] 2 S.C.R. 1048; 95 N.R. 161; 24 Q.A.C. 244, refd to. [para. 51].

International Longshoremen's and Warehousemen's Union, Ship and Dock Foremen, Local 514 v. Prince Rupert Grain Ltd. (1996), 198 N.R. 99 (S.C.C.), refd to. [para. 51].

Four Star Management Ltd. v. Canadian Union of Public Employees Local 1975 et al. (2002), 228 Sask.R. 27 (Q.B.), refd to. [para. 54].

Canada (Attorney General) v. Public Service Alliance of Canada (1993), 150 N.R. 161 (S.C.C.), refd to. [para. 55].

Hubbell v. Manitoba (Manitoba Labour Board), [1986] M.J. No. 287 (Q.B.), refd to. [para. 56].

Yarrow Lodge Ltd. et al. and Hospital Employees Union et al. (1993), 21 C.B.L.B.R.(2d) 1 (B.C.L.R.B.), consd. [para. 58].

AOV Adults Only Video Ltd. v. Labour Board (Man.) et al. (2003), 177 Man.R.(2d) 56; 304 W.A.C. 56 (C.A.), consd. [para. 74].

Counsel:

Ronald L. Olesky, for the applicant;

David Lewis, for the UFCW Union, Local No. 832;

Holly Penner, for the Attorney General of Manitoba;

T. David Gisser, for the Manitoba Labour Board.

This application was heard by McKelvey, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following decision on March 1, 2004.