Total Oilfield Rentals Limited Partnership v. Canada (Attorney General) et al., 2014 ABCA 250

• Judge: Slatter, O'Ferrall and Veldhuis, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: May 06, 2014
• Citations: 2014 ABCA 250;(2014), 577 A.R. 203

Total Oilfield Rentals Ltd. v. Can. (A.G.) (2014), 577 A.R. 203; 613 W.A.C. 203 (CA)

MLB headnote and full text

Temp. Cite: [2014] A.R. TBEd. AU.022

Total Oilfield Rentals Limited Partnership (respondent/applicant) v. The Attorney General of Canada (appellant/respondent) and The Attorney General of Alberta (intervener/intervener)

(1301-0158-AC; 2014 ABCA 250)

Indexed As: Total Oilfield Rentals Limited Partnership v. Canada (Attorney General) et al.

Alberta Court of Appeal

Slatter, O'Ferrall and Veldhuis, JJ.A.

August 14, 2014.

Summary:

Total Oilfield Rentals Limited Partnership was in the business of renting oilfield equipment and transporting that equipment to job sites in British Columbia, Alberta, Saskatchewan and North Dakota. At issue was whether Total Oilfield Rentals trucking operations were governed by the federal Motor Vehicle Transportation Act and Commercial Vehicles Drivers' Hours of Service Regulations or by provincial highways and motor vehicle legislation and regulations.

The Alberta Court of Queen's Bench, in a decision reported 562 A.R. 75, determined that Total Oilfield Rentals was governed by provincial highways and motor vehicle legislation and regulations. The Attorney General of Canada appealed.

The Alberta Court of Appeal, Slatter, J.A., dissenting, allowed the appeal. The federal Motor Vehicle Transport Act and its associated regulations applied to Total Oilfield Rentals' trucking operation.

Constitutional Law - Topic 22

General - Raising constitutional issues - Standard of review re constitutional questions - At issue was what was the test for determining jurisdiction over a particular transportation undertaking (the first issue) - The Alberta Court of Appeal stated that "The standard of review of constitutional interpretation is correctness, but curial deference is owed to fact findings underlying the constitutional analysis if it is possible to treat those fact findings separately ... The first issue, constitutional interpretation, is a pure question of law. Courts must apply the correct test for making a constitutional determination. Whether a chambers judge applied the correct test for determining transportation jurisdiction is reviewed for correctness" - See paragraphs 30 and 31.

Constitutional Law - Topic 22

General - Raising constitutional issues - Standard of review re constitutional questions - The Alberta Court of Appeal stated that "The second issue, whether Total Oilfield is a transportation undertaking when applying the fact findings which underpin the constitutional analysis, is a question of mixed fact and law. The chamber judge's underlying fact findings about Total Oilfield are entitled to deference and will be reviewed for palpable and overriding error. However, whether or not Total Oilfield is a transportation undertaking requires applying the legal definition of a 'transportation undertaking' to the fact findings about Total Oilfield's trucking operations. In constitutional cases judges must correctly apply the law to the facts. Therefore, the chamber judge's determination that Total Oilfield is not at least in part a transportation undertaking will be reviewed for correctness" - See paragraph 32.

Constitutional Law - Topic 22

General - Raising constitutional issues - Standard of review re constitutional questions - The Alberta Court of Appeal stated that "The third issue, which level of government has jurisdiction over Total Oilfield's trucking operations, also presents a question of mixed fact and law. The frequency with which Total Oilfield's trucks cross provincial boundaries is an underlying question of fact entitled to deference. Whether that frequency is sufficient to engage federal jurisdiction requires applying the 'continuous and regular' test. Again, judges must correctly apply this test to the relevant underlying findings of fact. Therefore, the chamber judge's determination that Alberta has jurisdiction over Total Oilfield's trucking operations will be reviewed for correctness" - See paragraph 33.

Constitutional Law - Topic 6642

Federal jurisdiction - Interprovincial works - Transportation - Total Oilfield Rentals LP (head office Alberta) rented oilfield equipment and transported that equipment to job sites in British Columbia, Alberta, Saskatchewan and North Dakota - Occasionally Total Oilfield hauled third-party goods for hire - At issue was whether the federal or provincial government had "transportation jurisdiction" over Total Oilfield's trucking operations - The Alberta Court of Appeal held that Total Oilfield's trucking operations were an interprovincial transportation undertaking within federal jurisdiction because: (1) although land transportation by truck was an "other Works or Undertakings" within provincial jurisdiction (Constitution Act, s. 92(10)(a)), that jurisdiction was subject to an exception when the "local Works and Undertakings" were not "Local" because they are "extending beyond the Limits of the Province"; (2) the volume and frequency of Total Oilfield's interprovincial trucking satisfied the "continuously and regularly" test developed to assess whether the transportation undertaking was "extending beyond the Limits of the Province" such as to be excepted from exclusive provincial jurisdiction and; (3) s. 91(29) of the Constitution Act, 1867, provided that if a class of subject assigned exclusively to the provinces was "expressly excepted", it was assigned to the Government of Canada - Therefore, the federal Motor Vehicle Transportation Act and its associated regulations applied to Total Oilfield Rentals' trucking operation - See paragraphs 85 to 150.

Constitutional Law - Topic 6642

Federal jurisdiction - Interprovincial works - Transportation - Total Oilfield Rentals LP (head office Alberta) rented oilfield equipment and transported that equipment to job sites to other provinces and North Dakota - Occasionally Total Oilfield hauled third-party goods for hire - Total Oilfield claimed that it was not a transportation "undertaking" for constitutional purposes because it was not a transportation "company" - The Alberta Court of Appeal stated that transportation "undertaking" was not synonymous with transportation "company" - That was contrary to the established principle that a single company could operate multiple undertakings - The court concluded that Total Oilfield's trucking operations were a transportation undertaking within the meaning of s. 92(10) of the Constitution Act, 1867 - Total Oilfield was a company that used its fleet of trucks to physically carry goods (i.e., its own rental equipment and sometimes third-party goods) across "territory", here meaning land, within and between British Columbia, Alberta, Saskatchewan, Manitoba, Yukon, North West Territories and North Dakota - See paragraphs 85 to 92.

Constitutional Law - Topic 6642

Federal jurisdiction - Interprovincial works - Transportation - Total Oilfield Rentals LP (head office Alberta) rented oilfield equipment and transported that equipment to job sites to other provinces and North Dakota - Occasionally Total Oilfield hauled third-party goods for hire - Total Oilfield claimed that it was not a transportation "undertaking" for constitutional purposes because its transportation activities were part of its equipment rental activities - The Alberta Court of Appeal held that the fact that its transportation services were complementary to its rental business did not mean Total Oilfield's trucking operations were not a "transportation undertaking" - "It follows that the transportation of equipment is a legally distinct activity from equipment rental. The Alberta's Traffic Safety Act and Canada's Motor Vehicle Transport Act regulate transportation activities, not rental contracts" - See paragraphs 93 to 96.

Constitutional Law - Topic 6642

Federal jurisdiction - Interprovincial works - Transportation - The Alberta Court of Appeal explained that s. 92(10)(a) of the Constitution Act, 1867, divided jurisdiction over transportation undertakings on a territorial basis - Section 92(10)(a) provided that the Provincial Legislature had exclusive jurisdiction over "local" works and undertakings, other than those connecting the Province with any other Provinces, or extending beyond the Limits of the Province - "In other words, a 'local' works and undertakings that does not connect 'the Province with any other or others of the Provinces, or extending beyond the Limits of the Province' falls under exclusive provincial legislative authority. However, by virtue of section 91(29) of the Constitution Act, 1867, any enumerated or 'other' works or undertakings within the meaning of section 92(10)(a) that is 'connecting the Province with any other or others of the Provinces, or extending beyond the Limits of the Province' is within the exclusive legislative authority of Parliament ... "In summary, legislative authority over transportation undertakings is shared between the Parliament of Canada and the Provincial Legislatures. Parliament has exclusive jurisdiction over interprovincial and international transportation undertakings, whereas the provinces have exclusive jurisdiction over local, intraprovincial transportation undertakings" - See paragraphs 34 to 41.

Constitutional Law - Topic 6642

Federal jurisdiction - Interprovincial works - Transportation - The Alberta Court of Appeal discussed what constituted a "transportation undertaking" for purposes of the Constitution Act, 1867 - See paragraphs 42 to 62.

Constitutional Law - Topic 6642

Federal jurisdiction - Interprovincial works - Transportation - The Alberta Court of Appeal held that determining transportation jurisdiction was different than determining labour relations jurisdiction - Assessing whether a transportation undertaking would be federally or provincially regulated was determined by ss. 92(10)(a) and 91(29) of the Constitution Act, 1867 - Determining labour relations jurisdiction was a different matter - Constitutional jurisdiction over labour relations was provincial (property and civil rights - s. 92(13)) unless the employment related to a work, undertaking, or business within the legislative authority of Parliament or when it was an integral part of a federally regulated undertaking - Therefore, a determination that a particular transportation undertaking was subject to federal or provincial labour law did not affect which level of government had "transportation jurisdiction" over its trucking activities - See paragraphs 63 to 70.

Constitutional Law - Topic 6642

Federal jurisdiction - Interprovincial works - Transportation - The Alberta Court of Appeal stated that "To determine whether a particular transportation undertaking is 'extending beyond the Limits of the Province', courts must determine whether the transportation undertaking 'continuously and regularly' crosses provincial or international borders ..." - The court elaborated on the "continuous and regular" test - The court stated, inter alia, that "Whether vehicles continuously and regularly cross provincial borders is a question of fact. Whether transportation operations 'continuously'" cross provincial borders is concerned with whether a series of cross-border trips are an anomalous or exceptional event, or whether cross-border trips are a normal part of a company's transportation operations. If the latter, the operations are continuous. Whether transportation operations 'regularly' cross provincial borders is concerned with the frequency (daily, weekly, monthly, etc.) of cross-border trips ... Moreover, when an integrated transportation undertaking engages in both intraprovincial and interprovincial transportation, a small fraction of interprovincial activity is sufficient to engage federal transportation jurisdiction ..." - See paragraphs 71 to 82.

Constitutional Law - Topic 6642

Federal jurisdiction - Interprovincial works - Transportation - The Alberta Court of Appeal stated that "To determine whether a particular transportation undertaking is 'extending beyond the Limits of the Province', courts must determine whether the transportation undertaking 'continuously and regularly' crosses provincial or international borders ..." - The court held that the "continuous and regular" test was the correct test for determining transportation jurisdiction - The court stated that "... the question answered by the 'continuous and regular' test is whether a transportation undertaking's transportation activities are regularly (frequency) and continuously (exceptionally) interprovincial or international in scope. If so, federal jurisdiction is engaged; if not, the provinces have exclusive legislative authority" - See paragraph 83.

Constitutional Law - Topic 7080

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

Cases Noticed:

Tessier Ltée v. Quebec (Commission de la santé et de la sécurité du travail), [2012] 2 S.C.R. 3; 430 N.R. 1; 2012 SCC 23, refd to. [paras. 22, 120].

Conklin & Garrett Ltd. v. Director of Elevating Devices (Ont.) (1989), 36 O.A.C. 293 (Div. Ct.), refd to. [para. 26].

R. v. Foremost Transport Personnel and Management Services Ltd. et al., [1982] A.J. No. 581; 42 A.R. 237; 23 Alta. L.R.(2d) 271 (Alta. C.A.), refd to. [para. 26].

Consolidated Fastfrate Inc. v. Western Canada Council of Teamsters et al., [2009] 3 S.C.R. 407; 395 N.R. 276; 469 A.R. 50; 470 W.A.C. 50; 2009 SCC 53, refd to. [paras. 30, 117].

Ontario (Attorney General) v. Winner, [1954] A.C. 541; [1954] 4 D.L.R. 657 (P.C.), refd to. [para. 38].

Radio Communication in Canada (Regulation and Control of), Re, [1932] A.C. 304 (P.C.), refd to. [para. 44].

Toronto Electric Commissioners v. Snider, [1925] A.C. 396, refd to. [para. 65].

Industrial Relations and Disputes Investigation Act, Reference Re, [1955] S.C.R. 525, refd to. [para. 65].

Tank Truck Transport, Re, [1960] O.R. 497; 25 D.L.R.(2d) 161 (Ont. H.C.), affd. [1963] 1 O.R. 272; 36 D.L.R.(2d) 636 (Ont. C.A.), refd to. [para. 71].

R. v. Cooksville Magistrate's Court Ex Parte Liquid Cargo Lines Ltd., [1965] 1 O.R. 84, refd to. [para. 71].

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; 44 O.R.(2d) 560 (C.A.), refd to. [paras. 71, 148].

Canadian Pacific Railway Co. v. British Columbia (Attorney General), [1950] A.C. 122; [1950] 1 D.L.R. 721 (P.C.), refd to. [paras. 73, 123].

Agence Maritime Inc. v. Conseil canadien des relations ourrières, [1969] S.C.R. 851, refd to. [para. 80].

Brinks Canada Ltd. v. Retail, Wholesale and Department Store Union, Local 454, [1976] S.J. No. 416 (C.A.), refd to. [para. 81].

R. v. Niagara Chemical, [1982] 3 W.W.R. 452 (Sask. Q.B.), refd to. [para. 107].

R. v. Best Sleep Centre Inc. (2002), 169 Man.R.(2d) 81 (Prov. Ct.), refd to. [para. 107].

Montcalm Construction Inc. v. Minimum Wage Commission et al., [1979] 1 S.C.R. 754; 25 N.R. 1, refd to. [para. 125].

Statutes Noticed:

Constitution Act, 1867, sect. 91(10)(a) [para. 34]; sect. 91(29) [para. 36].

Authors and Works Noticed:

Hogg, Peter W., Constitutional Law of Canada (5th Ed.) (2007 Looseleaf Supp.), p. 22-2 [para. 39].

Counsel:

G.N. Stapon, Q.C., and A.J. Gray, for the respondent;

C.A. Ashcroft, for the appellant;

L.H. Riczu, for the intervener.

This appeal was heard on May 6, 2014, in Calgary, Alberta, before Slatter, O'Ferrall and Veldhuis, JJ.A., of the Alberta Court of Appeal. The following decision was delivered by the court on August 14, 2014, including the following opinions:

O'Ferrall and Veldhuis, JJ.A. - see paragraphs 1 to 110;

Slatter, J.A., dissenting - see paragraphs 111 to 151.