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Ontario Hydro v. Ontario (Labour Relations Board), [1993] 3 S.C.R. 327

 

Ontario Hydro              Appellant

 

v.

 

Ontario Labour Relations Board,

Society of Ontario Hydro Professional

and Administrative Employees,

Canadian Union of Public Employees ‑‑ C.L.C.

Ontario Hydro Employees Union, Local 1000,

Coalition to Stop the Certification of

the Society on Behalf of Certain Employees,

Tom Stevens, C. S. Stevenson,

Michelle Morrissey‑O'Ryan and George Orr                                             Respondents

 

and

 

The Attorney General of Canada                                                     Respondent

 

and

 

The Attorney General for Ontario,

the Attorney General of Quebec and

the Attorney General for New Brunswick                                        Interveners

 

and between

 

Canadian Union of Public Employees ‑‑ C.L.C.

Ontario Hydro Employees Union, Local 1000                                              Appellants

 

v.

 

Ontario Hydro, Ontario Labour Relations Board,

Society of Ontario Hydro Professional

and Administrative Employees,

Coalition to Stop the Certification of the

Society on Behalf of Certain Employees,

Tom Stevens, C. S. Stevenson, Michelle Morrissey‑O'Ryan

and George Orr           Respondents

 

and

 

The Attorney General of Canada                                                     Respondent

 

and

 

The Attorney General for Ontario,

the Attorney General of Quebec and

the Attorney General for New Brunswick                                        Interveners

 

Indexed as:  Ontario Hydro v. Ontario (Labour Relations Board)

 

File Nos:  22355, 22387.

 

1992:  November 9; 1993:  September 30.

 


Present:  Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory and Iacobucci JJ.

 

on appeal from the court of appeal for ontario

 

                   Constitutional law ‑‑ Distribution of legislative powers ‑‑ Works for general advantage of Canada ‑‑ Works and undertakings constructed for the production, use and application of atomic energy declared to be works for the general advantage of Canada ‑‑ Validity and effect of declaration ‑‑ Whether federal labour relations legislation applicable to employees working at provincial nuclear electrical generating stations ‑‑ Constitution Act, 1867 , ss. 91(29) , 92(10) (c), 92A(1) (c) ‑‑ Atomic Energy Control Act, R.S.C., 1985, c. A‑16 , preamble, s. 18 .

 

                   Constitutional law ‑‑ Distribution of legislative powers ‑‑ Peace, order and good government ‑‑ Atomic energy ‑‑ Whether federal labour relations legislation applicable to employees working at provincial nuclear electrical generating stations ‑‑ Constitution Act, 1867 , s. 91  ‑‑ Atomic Energy Control Act, R.S.C., 1985, c. A‑16 , s. 18 .

 

                   Ontario Hydro, a provincially owned corporation, produces electric power through electrical generating stations, five of which are nuclear generating stations.  These stations fall within the  ambit of s. 18 of the federal Atomic Energy Control Act, which provides that all works and undertakings "constructed for the production, use and application of atomic energy" are works for the general advantage of Canada.  Each of Ontario Hydro's nuclear reactors is covered by a licence issued pursuant to regulations made under the Act.  The respondent Society applied for certification pursuant to the Ontario Labour Relations Act as exclusive bargaining agent for a unit of employees of Ontario Hydro, including those employed at the nuclear plants.  The respondent Coalition challenged the application on the ground that the employees who worked at the nuclear generating stations fell within the jurisdiction of the Canada Labour Code .  The Coalition claimed that the declaration in s. 18 of the Act, combined with ss. 91(29)  and 92(10) (c) of the Constitution Act, 1867 , brought Ontario Hydro's nuclear generating stations within exclusive federal jurisdiction with respect to labour relations.  The Ontario Labour Relations Board found that it had no jurisdiction to deal with the proposed unit since it included employees who worked at the nuclear facilities and were governed by the Canada Labour Code .  The Ontario Divisional Court quashed the Board's decision.  A majority of the Ontario Court of Appeal set aside the judgment of the Divisional Court and reinstated the Board's decision.

 

                   Held (Sopinka, Cory and Iacobucci JJ. dissenting):  The appeals should be dismissed.  The Canada Labour Code  applies to employees of Ontario Hydro who are employed on or in connection with those nuclear facilities that come under s. 18 of the Atomic Energy Control Act.

 

                   Per La Forest, L'Heureux‑Dubé and Gonthier JJ.:  Section 92(10) (c) of the Constitution Act, 1867  authorizes Parliament to declare local works to be for the general advantage of Canada.  When such a declaration is made, any work subject to the declaration falls, by virtue of s. 91(29) , within the legislative jurisdiction of Parliament as if such work was expressly enumerated in s. 91 .  The legislative jurisdiction conferred over a declared work refers to the work as a going concern or functioning unit, which involves control over its operation and management.  Labour relations are vital parts of the operation of a work and an integral part of Parliament's exclusive powers to legislate in relation to declared works.  A province has power by general legislation to affect the operation of a declared work, but it cannot legislate respecting that work qua work.  Legislation governing labour relations on such works is legislation in relation to that work and therefore falls outside provincial legislative competence.  The current goals of labour relations have nothing to do with the source of the legislative power.  Finally, it is unnecessary to consider the possible difference in scope between "undertakings" and "works" for the purposes of the various items in s. 92(10) .  A work under s. 92(10) (c) means a work as a going concern, and to manage that going concern Parliament must have power to regulate the labour relations between management and labour engaged in operating the work.  There is thus no logical or practical difference in the need for control of the labour relations in the management of an undertaking and in the management of a work.

 

                   The declaratory power should not be narrowly construed to conform to theoretical principles of federalism.  The Constitution must be read as it is, and it expressly provides for the transfer of provincial powers to the federal Parliament over works declared to be for the general advantage of Canada. Further, in this case, the preamble of the Atomic Energy Control Act does not restrict the federal power to safety and security considerations only.  While the preamble may set forth the purpose for which Parliament declared works for the development of atomic energy to be for the general advantage and may give at times some clue as to what works were intended to be covered by the declaration, once a work falls within the ambit of a declaration, the legislative power flowing therefrom is governed by the Constitution.

 

                   Section 92A(1) (c) in the Constitution Act, 1867  does not affect  Parliament's authority to legislate with respect to nuclear electrical generating stations.  Section 92(10) (c) extends to works created under other headings in s. 92 , and s. 92A  is not different in that respect.  The danger to provincial autonomy over the generation of electrical energy lay in the possible transformation of these enterprises into purely federal undertakings under s. 92(10) (a) by reason of their connection or extension beyond the province.  Section 92A  ensures the management by the provinces, including the regulation of labour relations, of the sites and facilities for the generation and production of electrical energy that might otherwise be threatened by s. 92(10) (a).  But it was not meant to interfere with the paramount power vested in Parliament by virtue of the declaratory power (or for that matter Parliament's general power to legislate for the peace, order and good government of Canada) over "[a]ll works and undertakings constructed for the production, use and application of atomic energy".

 

                   Parliament's exclusive jurisdiction over nuclear electrical generating stations is also founded on its power to legislate over matters of national concern under the peace, order and good government clause in s. 91  of the Constitution Act, 1867 .  There is no doubt that the production, use and application of atomic energy constitute a matter of national concern, which is predominantly extra‑provincial and international in character and implications, and possesses sufficiently distinct and separate characteristics to make it subject to Parliament's residual power.  What was said in the context of a work subject to the declaratory power applies equally to a work over which Parliament has jurisdiction under its general power in relation to matters of national concern.  Labour relations are an integral part of that jurisdiction.

 

                   Ontario Hydro was not immune from the operation of the Canada Labour Code  on the basis that it was a provincial instrumentality set up to advance provincial purposes.

 

                   Per Lamer C.J.: The federal legislative jurisdiction over works such as nuclear generating stations, whether it arises pursuant to Parliament's declaratory power under s. 92(10) (c) of the Constitution Act, 1867  or pursuant to Parliament's power under s. 91 of that Act to make laws for the peace, order and good government of Canada (the "p.o.g.g." power), must be carefully described to respect and give effect to the division of legislative authority. Accordingly, Parliament's jurisdiction over a declared work must be limited so as to respect the powers of the provincial legislatures while remaining consistent with the appropriate recognition of the federal interests involved.  The p.o.g.g. power is similarly subject to balancing federal principles, limiting in this case the p.o.g.g. jurisdiction to the national concern aspects of atomic energy (namely, the fact of nuclear production and its safety concerns).

 

                   The power to regulate the labour relations of Ontario Hydro's employees involved in the production of nuclear energy is an integral and essential part of Parliament's declaratory and p.o.g.g. jurisdictions.  Parliament's interest as set out in the preamble of the Atomic Energy Control Act to control and supervise the application and use of atomic energy reveals its interest in regulating labour relations matters at nuclear facilities.  This compelling interest is made clear by the Act's regulations dealing with health, safety and security, which include a strong employment and labour relations component, and by the conditions of the licences.  While none of the regulations seek to regulate the collective bargaining process, or refer explicitly to terms or conditions which must be included in collective agreements, the matters of concern to management and labour in drafting and negotiating a collective agreement are reflected in the regulations.  The federal interest in the employees working on or in connection with facilities for the production of nuclear energy extends where those employees are unionized to the labour relations regime which governs the relationship between the employer and the employees, through their bargaining agent.  On the international level, there is also a consistent recognition that supervising employment on or in connection with facilities for the production of nuclear energy is an integral part of assuring the safety of nuclear facilities and materials.

 

                   Further, Parliament's declaratory jurisdiction under s. 92(10) (c) extends not only to the work but also to the integrated activity carried on therein.  No convincing distinction can be drawn between what is called the "undertaking" of the work and the "integrated activities related to" that work.  The jurisdiction to regulate a work and its related integrated activity prima facie includes jurisdiction to make laws respecting its labour relations.  Here, the employees involved in the production of nuclear energy at Ontario Hydro's nuclear facilities clearly fall within Parliament's jurisdiction over labour relations.  Their "normal or habitual activities" are intimately related to the federal interest in nuclear energy, since the extent of the federal government's interest in nuclear power production is its interest in health, safety and security, matters completely within the daily control of those operating nuclear facilities.  The provincial trappings of Ontario Hydro's nuclear facilities should not mask their essentially federal operational nature.

 

                   The federal jurisdiction over labour relations does not apply to all Ontario Hydro's employees.  Only those actually employed on or in connection with facilities for the production of nuclear energy are federally regulated.  The others remain under provincial jurisdiction pursuant to s. 92A(1) (c) of the Constitution Act, 1867 .

 

                   Parliament is not precluded from exercising its labour relations jurisdiction over Ontario Hydro employees involved in the production of nuclear energy by the fact that the province has exercised that jurisdiction for a long period.  There is no doctrine of laches in the context of constitutional division of powers.

 

                   Per Sopinka, Cory and Iacobucci JJ. (dissenting):  Parliament may, under its declaratory power, decide as a matter of policy to withdraw a work or an undertaking linked to a work from what would normally be provincial jurisdiction by declaring the work or undertaking to be a work for the general advantage of Canada, or of two or more provinces.  Parliament's jurisdiction over a declared work, however, is not plenary and extends only to those aspects of the work which are integral to the federal interest in the work.  This limit is consistent with the traditional approach to division of powers.  The Constitution Act, 1867  set up a federalist system of government for Canada and should be interpreted so as not to allow the powers of either Parliament or the provincial legislatures to subsume the powers of the other.  The federal declaratory power applies to works which fall within any of the categories assigned to the provinces under ss. 92  and 92A  of the Constitution Act, 1867 .  Parliament did not give up its declaratory power over nuclear electrical generating stations when s. 92A  was added to the Constitution in 1982.

 

                   While the valid declaration in s. 18 of the Atomic Energy Control Act brought Ontario Hydro's nuclear electrical generating stations as works within Parliament's exclusive jurisdiction, control over labour relations at these facilities is not integral to Parliament's effective regulation of its interest in nuclear plants.  The preamble to the Act provides a statement of the federal interest in atomic energy and the parameters of that interest in the operations of the nuclear electrical generating facilities. The federal interest in these facilities is the fact of nuclear production and all its attendant safety, health and security concerns.  Nothing in the Act, the regulations or the licences reveals any interest in labour relations.  Labour relations legislation is generally concerned with regulating the process of industrial relations and aims at securing both industrial peace and better working conditions for workers.  The two potential labour relations concerns which could impact on the safe operation of a nuclear plant ‑‑ staffing and work stoppages ‑‑ are tempered by the conditions of the licences issued under the Act.  Moreover, if specific safety issues were of concern to Parliament, it could legislate with respect to those issues under its valid interest in safety flowing from its jurisdiction over the declared works.  This necessary trenching on provincial jurisdiction is more in harmony with the principles of federalism than is the wholesale withdrawing of labour relations from provincial jurisdiction.  The conclusion that labour relations is not integral to the exercise of federal jurisdiction is strengthened by s. 92A  of the Constitution Act, 1867 .  This section expressly provides for provincial jurisdiction over the management of electrical generating sites, including those fuelled by nuclear reactors.  Further, Ontario Hydro as a whole is a provincial undertaking.  Provincial control over labour relations thus appears to be integral to provincial jurisdiction over the nuclear electrical generating facilities.  Finally, for the same reason that labour relations of a federal undertaking must be regulated federally, labour relations of a provincial undertaking should be regulated provincially.

 

                   Like its jurisdiction under the declaratory power, Parliament's jurisdiction over atomic energy under the national concern branch of the p.o.g.g. power is not plenary and does not extend to the labour relations between Ontario Hydro and those of its employees employed in the nuclear electrical generating stations.  Absent special circumstances, the same balancing principles of federalism apply to both the p.o.g.g. power and the declaratory power.  Federal control over labour relations at Ontario Hydro's nuclear facilities is simply not required for the exercise of Parliament's jurisdiction over atomic energy.  The labour relations at issue in this case are not part of the single, distinctive and indivisible matter identified as atomic energy.

 

                   It follows that it is the Ontario Labour Relations Act which constitutionally applies to the labour relations between Ontario Hydro and those of its employees at its nuclear electrical generating facilities.  Had the Canada Labour Code  been applicable, however, Ontario Hydro would not have been immune from the operation of federal labour legislation by virtue of interjurisdictional Crown immunity.

 

Cases Cited

 

By La Forest J.

 

                   Applied:  Bell Canada v. Quebec (Commission de la santé et de la sécurité du travail), [1988] 1 S.C.R. 749; referred to:  Commission du salaire minimum v. Bell Telephone Co. of Canada, [1966] S.C.R. 767; Canadian National Railway Co. v. Courtois, [1988] 1 S.C.R. 868; Alltrans Express Ltd. v. British Columbia (Workers' Compensation Board), [1988] 1 S.C.R. 897; City of Montreal v. Montreal Street Railway Co., [1912] A.C. 333; Wilson v. Esquimalt and Nanaimo Railway Co., [1922] 1 A.C. 202; Canadian Pacific Railway Co. v. Corporation of the Parish of Notre Dame de Bonsecours, [1899] A.C. 367; Chamney v. The Queen, [1975] 2 S.C.R. 151; The Queen v. Thumlert (1959), 20 D.L.R. (2d) 335; Reference re Industrial Relations and Disputes Investigation Act, [1955] S.C.R. 529; Letter Carriers' Union of Canada v. Canadian Union of Postal Workers, [1975] 1 S.C.R. 178; Reference re Legislative Jurisdiction over Hours of Labour, [1925] S.C.R. 505; Re Canada Labour Code, [1992] 2 S.C.R. 50; Shur Gain Division, Canada Packers Inc. v. National Automobile, Aerospace and Agricultural Implement Workers Union of Canada, [1992] 2 F.C. 3; Reference re Waters and Water‑Powers, [1929] S.C.R. 200; Luscar Collieries Ltd. v. McDonald, [1925] S.C.R. 460; Reference re Disallowance and Reservation, [1938] S.C.R. 71; Severn v. The Queen (1878), 2 S.C.R. 70; Reference re Resolution to Amend the Constitution, [1981] 1 S.C.R. 753; General Motors of Canada Ltd. v. City National Leasing, [1989] 1 S.C.R. 641; Attorney‑General for Ontario v. Winner, [1954] A.C. 541; R. v. Picard, Ex parte International Longshoremen's Association, Local 375 (1967), 65 D.L.R. (2d) 658; Northern Telecom Ltd. v. Communications Workers of Canada, [1980] 1 S.C.R. 115; Reference re Bill 30, An Act to amend the Education Act (Ont.), [1987] 1 S.C.R. 1148; Canadian Industrial Gas & Oil Ltd. v. Government of Saskatchewan, [1978] 2 S.C.R. 545; Central Canada Potash Co. v. Government of Saskatchewan, [1979] 1 S.C.R. 42; British Columbia Power Corp. v. Attorney‑General of British Columbia (1963), 44 W.W.R. 65; Re Tank Truck Transport Ltd. (1960), 25 D.L.R. (2d) 161 (H.C.), aff'd [1963] 1 O.R. 272 (C.A.); Reference re Anti‑Inflation Act, [1976] 2 S.C.R. 373; R. v. Crown Zellerbach Canada Ltd., [1988] 1 S.C.R. 401; Pronto Uranium Mines Ltd. v. Ontario Labour Relations Board, [1956] O.R. 862; Denison Mines Ltd. v. Attorney‑General of Canada, [1973] 1 O.R. 797; Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3; Alberta Government Telephones v. Canada (Canadian Radio‑television and Telecommunications Commission), [1989] 2 S.C.R. 225.

 

By Lamer C.J.

 

                   Considered:  Pronto Uranium Mines Ltd. v. Ontario Labour Relations Board, [1956] O.R. 862; referred to:  Bell Canada v. Quebec (Commission de la santé et de la sécurité du travail), [1988] 1 S.C.R. 749; Canadian National Railway Co. v. Courtois, [1988] 1 S.C.R. 868; Alltrans Express Ltd. v. British Columbia (Workers' Compensation Board), [1988] 1 S.C.R. 897; Reference re Industrial Relations and Disputes Investigation Act, [1955] S.C.R. 529; Northern Telecom Canada Ltd. v. Communication Workers of Canada, [1983] 1 S.C.R. 733; Northern Telecom Ltd. v. Communications Workers of Canada, [1980] 1 S.C.R. 115; R. v. Crown Zellerbach Canada Ltd., [1988] 1 S.C.R. 401; Four B Manufacturing Ltd. v. United Garment Workers of America, [1980] 1 S.C.R. 1031; Alberta Government Telephones v. Canadian Radio‑television and Telecommunications Commission, [1985] 2 F.C. 472; Reference re Upper Churchill Water Rights Reversion Act, [1984] 1 S.C.R. 297; Central Canada Potash Co. v. Government of Saskatchewan, [1979] 1 S.C.R. 42.

 

By Iacobucci J. (dissenting)

 

                   The King v. Eastern Terminal Elevator Co., [1925] S.C.R. 434; Bell Canada v. Quebec (Commission de la santé et de la sécurité du travail), [1988] 1 S.C.R. 749; Canadian National Railway Co. v. Courtois, [1988] 1 S.C.R. 868; Alltrans Express Ltd. v. British Columbia (Workers' Compensation Board), [1988] 1 S.C.R. 897; Commission de transport de la Communauté urbaine de Québec v. Canada (National Battlefields Commission), [1990] 2 S.C.R. 838; Reference re Waters and Water‑Powers, [1929] S.C.R. 200; The Queen v. Thumlert (1959), 20 D.L.R. (2d) 335; Quebec Railway Light & Power Co. v. Town of Beauport, [1945] S.C.R. 16; Commission du salaire minimum v. Bell Telephone Co. of Canada, [1966] S.C.R. 767; Reference re Industrial Relations and Disputes Investigation Act, [1955] S.C.R. 529; Chamney v. The Queen, [1975] 2 S.C.R. 151; Shur Gain Division, Canada Packers Inc. v. National Automobile, Aerospace and Agricultural Implement Workers Union of Canada, [1992] 2 F.C. 3; General Motors of Canada Ltd. v. City National Leasing, [1989] 1 S.C.R. 641; Reference re Resolution to Amend the Constitution, [1981] 1 S.C.R. 753; R. v. Crown Zellerbach Canada Ltd., [1988] 1 S.C.R. 401; Multiple Access Ltd. v. McCutcheon, [1982] 2 S.C.R. 161; Citizens Insurance Co. of Canada v. Parsons (1881), 7 App. Cas. 96; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; Toronto Electric Commissioners v. Snider, [1925] A.C. 396; Construction Montcalm Inc. v. Minimum Wage Commission, [1979] 1 S.C.R. 754; Northern Telecom Ltd. v. Communications Workers of Canada, [1980] 1 S.C.R. 115; Reference re Anti‑Inflation Act, [1976] 2 S.C.R. 373; Pronto Uranium Mines Ltd. v. Ontario Labour Relations Board, [1956] O.R. 862; Central Western Railway Corp. v. U.T.U., [1989] 2 F.C. 186.

 

Statutes and Regulations Cited

 

Act to amend the Act incorporating "The Bell Telephone Company of Canada", S.C. 1882, c. 95, s. 4.

 

Atomic Energy Control Act, R.S.C., 1985, c. A‑16 , preamble, ss. 9 (b), 18 .

 

Atomic Energy Control Regulations, C.R.C. 1978, c. 365, ss. 7(2), (3), 8, 9(2), 11(1), 13(1), 17, 27, 28.

 

Bell Canada Act, S.C. 1987, c. 19 , s. 5 .

 

Canada Labour Code, R.S.C., 1985, c. L‑2 , ss. 2  "federal work, undertaking or business", 2(h), 4.

 

Cape Breton Development Corporation Act, R.S.C., 1985, c. C‑25 , s. 35 .

 

Constitution Act, 1867 , ss. 55 , 56 , 57 , 90 , 91 , 91(29) , 92(10) , (13) , (16) , 92A(1) (c), (6) .

 

Constitution Act, 1982 , s. 50 .

 

Labour Relations Act, R.S.O. 1980, c. 228.

 

Labour Relations Act, R.S.O. 1990, c. L.2.

 

Power Corporation Act, R.S.O. 1990, c. P.18.

 

Treaty on the Non‑Proliferation of Nuclear Weapons, Can. T.S. 1970  No. 1, Art. III.

 

Authors Cited

 

Adams, George W.  Canadian Labour Law, 2nd ed. Aurora, Ont.:  Canada Law Book, 1993 (loose‑leaf).

 

Beatty, David M.  Putting the Charter to Work:  Designing a Constitutional Labour Code.  Kingston:  McGill‑Queen's University Press, 1987.

 

Brun, Henri, et Guy Tremblay.  Droit constitutionnel, 2e éd. Cowansville:  Yvon Blais, 1990.

 

Cairns, Robert D., Marsha A. Chandler and William D. Moull.  "Constitutional Change and the Private Sector:  The Case of the Resource Amendment" (1986), 24 Osgoode Hall L.J. 299.

 

Csik, B. J.  "International Guidance on the Qualifications of Nuclear Power Plant Operations Personnel".  In Operational Safety of Nuclear Power Plants, vol. II. Vienna:  International Atomic Energy, 1984, 315.

 

Hanssen, Kenneth.  "The Federal Declaratory Power Under the British North America Act" (1968‑69), 3 Man. L.J. 87.

 

Hogg, Peter W.  Constitutional Law of Canada, vol. 1, 3rd ed. (Supplemented).  Scarborough, Ont.:  Carswell, 1992 (loose‑leaf).

 

Hogg, Peter W.  "The Charter of Rights  and American Theories of Interpretation" (1987), 25 Osgoode Hall L.J. 87.

 

IAEA Yearbook 1992.  Vienna:  International Atomic Energy Agency, 1992.

 

La Forest, Gérard V., and Associates.  Water Law in Canada:  The Atlantic Provinces.  Ottawa:  Information Canada, 1973.

 

Lajoie, Andrée.  Le pouvoir déclaratoire du Parlement:  Augmentation discrétionnaire de la compétence fédérale au Canada.  Montréal:  Presses de l'Université de Montréal, 1969.

 

Laskin's Canadian Constitutional Law, vol. 1, 5th ed.  By Neil Finkelstein.  Toronto:  Carswell, 1986.

 

Moull, William D.  "The Legal Effect of the Resource Amendment ‑‑ What's New in Section 92A ".  In J. Peter Meekison, Roy J. Romanow and William D. Moull, Origins and Meaning of Section 92A :  The 1982 Constitutional Amendment on Resources.  Montréal:  Institute for Research on Public Policy, 1985, 33.

 

                   APPEALS from a judgment of the Ontario Court of Appeal (1991), 1 O.R. (3d) 737, 43 O.A.C. 184, 77 D.L.R. (4th) 277, 91 CLLC {PP} 14,014, setting aside a judgment of the Divisional Court (1989), 69 O.R. (2d) 268, 33 O.A.C. 302, 60 D.L.R. (4th) 542, 89 CLLC {PP} 14,044, quashing a decision of the Ontario Labour Relations Board, [1988] OLRB Rep. Feb. 187.  Appeals dismissed, Sopinka, Cory and Iacobucci JJ. dissenting.

 

                   Neil Finkelstein, Jeffrey W. Galway and George Vegh, for Ontario Hydro.

 

                   R. Ross Wells and Christopher M. Dassios, for CUPE ‑‑ C.L.C. Ontario Hydro Employees Union, Local 1000.

 

                   Kathleen A. MacDonald, for the respondent the Ontario Labour Relations Board.

 

                   Paul J. J. Cavalluzzo, for the respondent Society of Ontario Hydro Professional and Administrative Employees.

 

                   Eric A. Bowie, Q.C., Lewis E. Levy, Q.C., and Roslyn J. Levine, for the respondent the Attorney General of Canada.

 

                   M. Philip Tunley and John Terry, for the intervener the Attorney General for Ontario.

 

                   Alain Gingras and André Couture, for the intervener the Attorney General of Quebec.

 

                   Bruce Judah, for the intervener the Attorney General for New Brunswick.

 

                   The following are the reasons delivered by

 

                   Lamer C.J. --

 

I.  Introduction

 

                   I have read with interest the thorough and thoughtful reasons of my colleague, Justice Iacobucci, and although I agree with much of his analysis of the law applicable to these appeals, I cannot, with respect, agree with his disposition of these appeals.  Although there are two appeals before the Court, they are in substance one, and I shall refer to the proceedings herein as "the appeal".

 

                   I agree with Iacobucci J. that Parliament's legislative jurisdiction over works such as nuclear generating stations, whether it arises pursuant to a declaration under s. 92(10) (c) of the Constitution Act, 1867 , or pursuant to Parliament's power under s. 91 of that Act to make laws for the peace, order and good government of Canada (the "p.o.g.g." power), is not "plenary".  Rather, federal jurisdiction over such works must be carefully described to respect and give effect to the division of legislative authority on which our federal constitutional scheme is based.  Under s. 92(10) (c), I fully agree with Iacobucci J. that "Parliament's jurisdiction over a declared work must be limited so as to respect the powers of the provincial legislatures but consistent with the appropriate recognition of the federal interests involved" (p. 404).  The p.o.g.g. power is similarly subject to balancing federal principles, limiting the federal government's p.o.g.g. jurisdiction to "the national concern aspects of atomic energy . . . namely the fact of nuclear production and its safety concerns" (p. 425).

 

                   However, I cannot agree with Iacobucci J.'s assessment of how this balance ought to be struck; specifically, I am of the view that the power to regulate the labour relations of those employed on or in connection with facilities for the production of nuclear energy is integral to Parliament's declaratory and p.o.g.g. jurisdictions.  I reach this conclusion through an examination of the national and international regulatory framework applicable to the production of nuclear energy, previous decisions of this and other courts respecting constitutional jurisdiction over labour relations, and the effect of s. 92A(1) (c) of the Constitution Act, 1867 .

 

II.  Analysis

 

A. Regulatory Framework

 

                   (a) The Atomic Energy Control Act

 

                   The production of nuclear energy in Canada is regulated by legislation (the Atomic Energy Control Act, R.S.C., 1985, c. A-16  (the "AECA ")), regulations made under that Act, and licences granted by the Atomic Energy Control Board pursuant to that Act and the regulations.

 

                   The declaration in s. 18  AECA , that "[a]ll works and undertakings constructed (a) for the production, use and application of atomic energy ... are, and each of them is declared to be, works or a work for the general advantage of Canada" is the primary indication of Parliament's interest in the production of atomic energy.  The scope of that interest is suggested by the preamble to the AECA , which states:

 

                   Whereas it is essential in the national interest to make provision for the control and supervision of the development, application and use of atomic energy and to enable Canada to participate effectively in measures of international control of atomic energy that may hereafter be agreed on;

 

                   I cannot, with respect, agree that the preamble does not reveal a federal interest in regulating labour relations.  Rather, I think that stating Parliament's interest in the "control and supervision of the . . . application and use of atomic energy" directly implicates regulation of the activities involved in that application and use, which in turn involves the regulation of those employed in producing nuclear power.  In fact, Iacobucci J. agrees at p. 416 that "the uniquely federal aspect of Ontario Hydro's nuclear electrical generating stations is the fact of nuclear production, with all its attendant safety, health and security concerns" (emphasis added).  With respect, I believe that all of the concerns attendant on the production of nuclear energy arise in the regulation of labour relations at nuclear production facilities, as is shown by the way in which the general content of the preamble is particularized in the AECA  and its regulations.

 

                   As the discussion below of the regulations made under the AECA  makes clear, the Atomic Energy Control Board is given broad regulation-making power, through which the production of nuclear energy is primarily controlled and supervised.  Section 9 (b) AECA , for example, allows the Board to make regulations "for developing, controlling, supervising and licensing the production, application and use of atomic energy".  It is through this regulation-making power that the Board has made clear the federal government's interest in labour relations matters affecting nuclear energy, and to which I shall now turn.

 

                   (b)  The Atomic Energy Control Regulations

 

                   The Atomic Energy Control Regulations, C.R.C. 1978, c. 365, evince a strong federal interest in the employment of the men and women who operate Ontario Hydro's nuclear production facilities.  Although none of the provisions seek to regulate the collective bargaining process, or refer explicitly to terms or conditions which must be included in collective agreements covering such workers, the regulations do show in a more general way that Parliament's interest in health, safety and security at nuclear production facilities is in large part an interest in the employment of those persons who operate such facilities.

 

                   An application made to the Atomic Energy Control Board, under s. 7(2) in Part I of the regulations, for a licence to, inter alia, use any prescribed substance must, if the Board so requires, set out "(g) a description of the qualifications, training and experience of any person who is to use the prescribed substance".  The licence granted by the Board may include conditions respecting measures to be taken to protect against excessive doses of radiation (s. 7(3)(a)), instruction to be given to workers respecting radiation hazards and procedures (s. 7(3)(c)), measures to be taken against theft, loss or unauthorized use of prescribed substances (s. 7(3)(f)), and the qualifications, training and experience of anyone who is to use or supervise the use of prescribed substances (s. 7(3)(g)).

 

                   Similar provisions govern the licensing procedure for operating a nuclear facility described in Part II of the regulations.

 

                   Where a licence has been issued, records must be kept of the names of all persons involved in the use and handling of prescribed substances, doses of radiation received by any person, and medical examinations required under the regulations (Part III, s. 11(1)).

 

                   Part IV of the regulations concerns security, and prohibits unauthorized disclosure of various types of information about prescribed substances and nuclear facilities (s. 13(1)).  Furthermore, the Board may designate "protected places" for secrecy into which unauthorized persons may not enter.

 

                   Part V of the regulations concerns health and safety, and s. 17 requires radiation dosage notification and examination procedures for atomic radiation workers, as well as prohibiting some persons from working as atomic radiation workers.  Indeed, Part V is almost exclusively concerned with employees at nuclear facilities such as Ontario Hydro's.

 

                   Part VI, the general part of the regulations, imposes several employment-related obligations on licensees, including providing appropriate safety equipment and clothing, and providing adequate warning to any person (which would include employees) who may be affected by an escape of radioactive material.  Employees are under similar obligations to observe safety procedures and use safety equipment and clothing.

 

                   I think that it can be foreseen how these stringent and detailed obligations of licensees such as Ontario Hydro might be reflected in collective agreements between the management and employees of nuclear facilities, especially where dosage monitoring, notification, and protection are concerned.  The various restrictions on who may be employed at the facility might be incorporated into the collective agreement.  The Atomic Energy Control Board's training and experience requirements might influence the negotiation and drafting of promotion and seniority clauses.  An employee's failure to use the required safety equipment, or to observe required safety procedures, could be the subject of discipline governed by the collective agreement.  The labour relations board might have to distinguish between a legitimate plant shut-down and an illegal lock-out during a labour dispute.  The requirement that the collective agreement conform to the regulatory requirements of the statute, regulations and licence might be relevant to proceedings to determine whether the parties were bargaining in good faith.  Other examples of the mutual concerns in the regulations and most collective agreements are not difficult to anticipate.

 

                   I draw these parallels not to suggest that the regulations will dictate the substantive content of collective agreements for those employed on or in connection with nuclear energy production facilities, but rather to show that the matters of concern to management and labour in drafting and negotiating a collective agreement are reflected in the regulations, and that the interests in both cases are quite similar.  As is the case with the AECA , Parliament's regulation of nuclear facilities, under the concerns of health, safety and security, includes a strong employment and labour relations component.

 

                   (c)  Licences

 

                   One of the licences described in the AECA  and the regulations has been put before this Court (Reactor Operating Licence No. 10/86, for the Bruce Nuclear Generating Station "A").

 

                   Article A.A.3 sets out detailed staffing requirements, including written Atomic Energy Control Board approval of certain employees, minimum staffing requirements, and notice of staffing changes.  Article A.A.19 requires the prompt reporting of any attempted or actual breaches of security, threats or sabotage (sub-article (iv)), and of "actual or impending instances of industrial disputes or civil demonstrations which could affect the safety or security of the nuclear facility" (sub-article (v)), and "any event which constitutes or reveals a violation of the conditions of this licence, the Physical Security Regulations or the Atomic Energy Control Regulations" (sub-article (ix)).  This last sub-article covers all of the personnel requirements of the regulations and licence described above.

 

                   It is said that the lack of any imposition of federal control over labour disputes in the licence indicates that such control is not integral to federal jurisdiction.  However, with respect, I believe that what demonstrates that jurisdiction over labour relations is integral to federal jurisdiction over the production of energy power is not an actual exercise of that jurisdiction (indeed, no such jurisdiction has been exercised in this case, as I discuss below), but a commonality of interests and concerns between the existing federal regulatory framework, and the matters to which labour relations legislation is addressed.  The licence provisions do indicate a strong and compelling federal interest in labour relations matters at nuclear facilities, not the least of which is the reporting of potential labour disturbances because of their serious health, safety and security implications.  It appears to me that the reporting of labour disturbances to the Atomic Energy Control Board, mandated by the licence, in fact dovetails neatly with federal regulation and supervision of the disturbance itself.

 

                   Therefore, I think that the domestic regulation of the production of nuclear energy demonstrates a strong federal interest in the employment of those employed on or in connection with facilities for the production of nuclear energy.  Where those employees are unionized, that federal interest extends to the labour relations regime which governs the relationship between the employer and the employees, through their bargaining agent.

 

                   (d)  International Regulation

 

                   The production of nuclear energy is also closely monitored and regulated at the international level, primarily by the International Atomic Energy Agency ("IAEA") and the treaties and agreements negotiated through the IAEA to which Canada is a party.  The IAEA is mainly concerned with the promotion of the peaceful and safe use of atomic energy, and the prevention of the diversion of nuclear materials to non-peaceful uses.

 

                   Many of the security provisions affecting employees in the regulations described above (especially those in Part IV), and the licences under which nuclear facilities operate, can be traced to Canada's international obligations in the field of nuclear energy.  Canada is a "non-nuclear weapon" party to the Treaty on the Non-Proliferation of Nuclear Weapons, Can. T.S. 1970 No. 1, which in Article III imposes "safeguards" on such parties to prevent the diversion of nuclear materials to other than peaceful purposes.

 

                   Other IAEA activities demonstrate the vital link between the safe production of nuclear energy and the persons employed in that enterprise.  For example, in the IAEA Yearbook 1992, at p. D25, the development of a concept called "safety culture" is discussed.  Recognizing that (at p. D49) "[a] principal root cause of failures is human error, which is often the initiator of incidents", safety culture, the Yearbook explains, directs individuals, managers, and policy makers to implement strategies and organizational structures to prevent and detect such errors.

 

                   A paper presented to an international symposium on the operational safety of nuclear power plants organized by the IAEA also warned against treating employees engaged in the production of nuclear energy like other utility employees.  B. J. Csik of the IAEA, in "International Guidance on the Qualifications of Nuclear Power Plant Operations Personnel" (Operational Safety of Nuclear Power Plants (1984), vol. II, 315) noted with disapproval (at p. 323) that:

 

                   Some utilities maintain the attitude in their personnel management policy that a nuclear power plant is just another electric generation plant, even though they are fully aware of the differences between nuclear and fossil-fuelled units for all other purposes.

 

                   On the international level, then, there is a consistent recognition that supervising employment on or in connection with facilities for the production of nuclear energy is an integral part of assuring the safety of nuclear facilities and materials.  The question remains whether the jurisprudence of this and other courts supports the strong practical reasons in favour of placing the responsibility for both matters with the federal government.

 

B.  Labour Relations Jurisprudence

 

                   The trilogy (Bell Canada v. Quebec (Commission de la santé et de la sécurité du travail), [1988] 1 S.C.R. 749; Canadian National Railway Co. v. Courtois, [1988] 1 S.C.R. 868; and Alltrans Express Ltd. v. British Columbia (Workers' Compensation Board), [1988] 1 S.C.R. 897), with the cases Beetz J. relied upon in the trilogy, emphasize the intimate link between the power to regulate an industrial activity like producing nuclear energy, and the authority to make laws respecting the management of that activity, which authority usually extends to making laws respecting labour relations.  For example, Beetz J. described (at p. 825) the following passage (from Reference re Industrial Relations and Disputes Investigation Act, [1955] S.C.R. 529 (the Stevedoring case), at p. 592, per Abbott J.) as "a classic statement on point":

 

                   The right to strike and the right to bargain collectively are now generally recognized, and the determination of such matters as hours of work, rates of wages, working conditions and the like, is in my opinion, a vital part of the management and operation of any commercial or industrial undertaking.  This being so, the power to regulate such matters, in the case of undertakings which fall within the legislative authority of Parliament lies with Parliament and not with the Provincial Legislatures.

 

                   My colleague distinguishes this and other such general statements by observing that Ontario Hydro as a whole is a "provincial", rather than a "federal" "undertaking", so that these passages in fact demonstrate the necessity of provincial control over labour relations at Ontario Hydro.  Federal jurisdiction over Ontario Hydro's nuclear facilities, it is suggested, extends only so far as the "work" and the "integrated activities related to the work".  However, with respect, the description of Ontario Hydro as a provincial undertaking to limit federal jurisdiction under s. 92(10) (c) to the work alone proves too much; a scrupulous application of the works/undertakings distinction relied upon by Iacobucci J. would leave Parliament jurisdiction over nothing more than the physical shell of the nuclear generating facilities, a result which none of the parties supporting provincial jurisdiction go so far as to assert.

 

                   To avoid finding such an empty and ineffective jurisdiction over the work alone, commentators and courts have accepted that Parliament's jurisdiction over a work subject to a declaration includes some level of control over the activities which occur on or in connection with it; such activities have often been described as the "undertaking" connected with the work, although the strict terms of s. 92(10) (c) would seem to limit Parliament's jurisdiction to the work only.  For example, the author of Laskin's Canadian Constitutional Law (5th ed. 1986), vol. 1, asserts (at p. 629) that the effect of a declaration "must surely be to bring within federal authority not only the physical shell or facility but also the integrated activity carried on therein; in other words, the declaration operates on the work in its functional character".  My colleague holds that this latter authority does not include labour relations.  However, if federal jurisdiction applies to the "integrated activities related to the work", I see no convincing distinction between what is called the "undertaking" of Ontario Hydro's nuclear facilities (which must be distinguished from the "undertaking" of Ontario Hydro's non-nuclear facilities and operations) and the "integrated activities related to" those nuclear facilities.  With respect, I think further that the trilogy suggests the same parallel.

 

                   Bell Canada, the subject of the lead judgment in the trilogy, is itself the subject of a declaration by S.C. 1987, c. 19 , s. 5 , which is confined to the strict limits of s. 92(10) (c):  "The works of the Company are hereby declared to be works for the general advantage of Canada."  At the time the trilogy was decided, a declaration to the same effect was contained in S.C. 1882, c. 95, s. 4.  While Bell Canada was also within federal jurisdiction under s. 92(10) (a), the declaration, if it is not completely redundant, must have been seen as necessary to complete Parliament's control over the enterprise.  In the trilogy, Beetz J. used Bell Canada as the paradigm of a "federal undertaking", the labour relations of which would be federally regulated, notwithstanding that Parliament's jurisdiction was at least partly founded under s. 92(10) (c).  I would therefore not interpret Beetz J.'s references in the trilogy to "federal undertakings" as restrictively as is suggested, but rather would rely on those cases for the simple but compelling proposition that jurisdiction to regulate a work and its related integrated activity, here the production of nuclear energy, prima facie includes jurisdiction to make laws respecting its labour relations.

 

                   The special problems raised by such divided activities within a single enterprise were canvassed by this Court in Northern Telecom Canada Ltd. v. Communication Workers of Canada, [1983] 1 S.C.R. 733.  Most of Northern Telecom's employees were subject to provincial labour law.  However, some employees were "installers", who installed telephone equipment in Bell Canada's telephone network.  The Canada Labour Relations Board determined that the installers were not employed on or in connection with the federal enterprise that was Bell Canada, and so were outside of its jurisdiction.  This Court held that the installers were sufficiently integrated into the operations of Bell Canada to fall within federal labour relations jurisdiction.  Writing for the majority of this Court, Estey J. described the inquiry before the Court, as it had been outlined by Dickson J. (as he then was) in an earlier incarnation of the litigation (Northern Telecom Ltd. v. Communications Workers of Canada, [1980] 1 S.C.R. 115).  Dickson J. wrote (at p. 133):

 

                   In the case at bar, the first step is to determine whether a core federal undertaking is present and the extent of that core undertaking.  Once that is settled, it is necessary to look at the particular subsidiary operation, i.e., the installation department of Telecom, to look at the "normal or habitual activities" of that department as "a going concern", and the practical and functional relationship of those activities to the core federal undertaking.

 

Estey J. found that the installers were an integral part of the core federal undertaking, so that they fell under federal jurisdiction.

 

                   Applying the same test to employees involved in the production of nuclear energy at Ontario Hydro's nuclear facilities, I think it is clear that their "normal or habitual activities" are intimately related to the federal interests in nuclear energy, since the extent of the federal government's interest in nuclear power production is its interests in health, safety and security, matters completely within the daily control of those operating nuclear facilities.  The IAEA materials make this clear.

 

                   Therefore, I would conclude under both the declaratory jurisdiction and the p.o.g.g. jurisdiction, that the labour relations of Ontario Hydro's employees involved in the production of nuclear energy, related as it is to the federal interest in atomic energy, is an integral and essential part of Parliament's jurisdiction, as it was found to be in previous cases like the trilogy in connection with other integrated activities connected to federally declared works.

 

                   The courts below, and the parties in this appeal supporting federal jurisdiction over labour relations, relied on the decision of the Ontario High Court of Justice in Pronto Uranium Mines Ltd. v. Ontario Labour Relations Board, [1956] O.R. 862.  My colleague fully reviews the facts and result in this decision, which upheld federal p.o.g.g. jurisdiction over atomic energy and a resulting jurisdiction over labour relations, but seeks to limit its persuasive authority on four bases: (i) it was decided before this Court's decision in R. v. Crown Zellerbach Canada Ltd., [1988] 1 S.C.R. 401; (ii) its conclusion is not supported by any reasons; (iii) the issue of jurisdiction over labour relations was conceded by the parties; and (iv) it does not accord with decisions of this Court which have indicated that federal and provincial powers must accommodate one another to the extent possible.

 

                   Responding to the first ground of distinction, with respect, I see nothing in Pronto which is inconsistent with this Court's decision in Crown Zellerbach.  While I agree that Crown Zellerbach set a high threshold for finding jurisdiction under the national concern branch of p.o.g.g., I think that atomic energy meets that threshold, as does Iacobucci J. when he states at p. 425 that "there is no dispute that Parliament has jurisdiction over atomic energy under the national concern branch of the p.o.g.g. power".  Where I understand my colleague to disagree with the holding in Pronto, based on the subsequent jurisprudence of this Court, is the question of whether labour relations are integral to a great enough extent to Parliament's p.o.g.g. jurisdiction to merit recognition.  If they are not, then the p.o.g.g. jurisdiction cannot be allowed to so entrench on provincial jurisdiction.  I do not understand my colleague to claim that where such jurisdiction is integral, the scale of impact must nevertheless be reconcilable with provincial jurisdiction.  Given my position that labour relations are integral to Parliament's p.o.g.g. jurisdiction, I do not see that anything in Pronto fails to satisfy the high threshold in Crown Zellerbach.

 

                   On the second and third grounds, the fact that the parties did not dispute the issue, and that McLennan J. did not, therefore, need to detail his reasoning does not mean that the decision is wrong:  McLennan J. could not have accepted the parties' concessions on the very question before him (the jurisdiction of the Ontario Labour Relations Board) if he was of the view that Parliament did not have jurisdiction over labour relations as part of its p.o.g.g. jurisdiction.  In fact, his concise reasoning with respect to what must necessarily be included in Parliament's jurisdiction over labour relations over atomic energy was based on the Stevedoring case, and McLennan J. even expressed his holding in a paraphrase of the words of Rand J. in that decision.

 

                   Finally, on the fourth ground, the precise accommodation to be worked out between the federal and provincial governments is the issue in this appeal, and in my view, the division of authority I arrive at, which is the same as that found by McLennan J., respects this accommodation, for the reasons I have outlined above.

 

                   Therefore, while this Court is by no means bound by the decision in Pronto, the judgment is not entirely without persuasive force, presaging as it does the close link between Parliament's interests in regulating nuclear energy and its interest in regulating the labour relations of those involved in the production of nuclear energy.

 

                   An instructive contrast is provided by this Court's decision in Four B Manufacturing Ltd. v. United Garment Workers of America, [1980] 1 S.C.R. 1031.  Four B was an Ontario corporation operating a factory on a Mohawk Indian reserve, pursuant to a licence issued by the Minister of Indian Affairs and Northern Development under the Indian Act, R.S.C. 1970, c. I-6.  The company was privately owned and operated by four members of the Band, in a building leased from the Band Council.  Of Four B's 68 employees, 48 were Band members, 10 were former Band members, and 10 were non-Indians.  The respondent union was certified as the bargaining agent for the employees under the Ontario Labour Relations Act, R.S.O. 1970, c. 232, but Four B objected to the jurisdiction of the Ontario Labour Relations Board to make the certification order.  Four B asserted that labour relations at the company were within the exclusive jurisdiction of Parliament, pursuant to s. 91(24)  of the Constitution Act, 1867 .

 

                   Beetz J., for the majority of the Court, rejected Four B's submission.  He began by stating the principles applicable in Four B, based on the jurisprudence of this Court (at p. 1045):

 

With respect to labour relations, exclusive provincial legislative competence is the rule, exclusive federal competence is the exception.  The exception comprises, in the main, labour relations in undertakings, services and businesses which, having regard to the functional test of the nature of their operations and their normal activities, can be characterized as federal undertakings, services or businesses. . . .

 

Applying these principles to Four B, Beetz J. concluded (at p. 1046):

 

                   There is nothing about the business or operation of Four B which might allow it to be considered as a federal business:  the sewing of uppers on sport shoes is an ordinary industrial activity which clearly comes under provincial legislative authority for the purposes of labour relations.  Neither the ownership of the business by Indian shareholders, nor the employment by that business of a majority of Indian employees, nor the carrying on of that business on an Indian reserve under a federal permit, nor the federal loan and subsidies, taken separately or together, can have any effect on the operational nature of that business. [Emphasis added.]

 

                   This focus on the nature of the activity involved and the operational nature of the business, instead of on the external trappings of the business, is equally apt in the case of Ontario Hydro's nuclear facilities.  With respect, Iacobucci J.'s reliance on the fact that Ontario Hydro, as a whole, is a provincial undertaking fails to appreciate the nature of the activity involved in, and the operational nature of, Ontario Hydro's nuclear facilities in particular.  Unlike the situation in Four B, producing nuclear energy is not an "ordinary industrial activity" which is only incidentally carried on by federally regulated persons.  Instead, the activity itself is within the federal legislative domain.  Similarly, the "operational nature" of the business of producing nuclear energy directly engages Parliament's interest in controlling and supervising the application and use of atomic energy.  As in Four B, then, the provincial trappings of Ontario Hydro's nuclear facilities should not mask their essentially federal operational nature.

 

 

C.  The Effect of Section 92A(1) (c)

 

                   Ontario Hydro and the intervenors supporting its position argue as if the federal government were seeking jurisdiction over the labour relations of all Ontario Hydro employees, simply because some Ontario Hydro employees are engaged in the production of nuclear energy.  If this were the case, I would agree that Ontario Hydro's status as "a provincial undertaking" was relevant, and that s. 92A(1) (c) operates to foreclose such a result.  Provincial jurisdiction over all aspects of the majority of Ontario Hydro's operations, pursuant to s. 92A(1) (c), remains undisturbed by my holding in this case that the labour relations of those employed on or in connection with facilities for the production of nuclear energy are federally regulated.

 

                   This is how I would respond to concerns that s. 92A(1) (c) be given some meaning in this case.  Only those employees actually employed on or in connection with facilities for the production of nuclear energy are federally regulated.  In his affidavit, Arvo Niitenberg, Ontario Hydro's Senior Vice-President of Operations, explains that generating electricity requires a source of energy, a turbine, and a generator.  The source of energy at nuclear facilities is a nuclear fission reaction, which generates heat energy, which is then used to turn water into steam.  That steam drives the turbine, which spins the generator, which produces the electricity by means of an electromagnet and wire coils.  The affidavit makes it clear that, once the steam is produced, there is no difference between thermal (i.e., fossil-fuel) and nuclear electrical generation.  Although I would leave it to the Ontario Labour Relations Board to exclude those particular employees from its jurisdiction who are covered by the Canada Labour Code , in general terms I am of the view that it is only those employees involved in the first of the three parts of the generation phase who would be federally regulated.  That is, those employees engaged in using nuclear reactors to generate heat energy would be covered by the federal legislation, while those who are involved with using that heat energy to run the turbine, which in turn runs the generator, would be provincially regulated.  The former employees are employed in the production of nuclear (heat) energy, and come under federal jurisdiction under both the declaratory and p.o.g.g. powers; the latter employees are employed in the production of electricity, and the management of their activities falls to the provinces under s. 92A(1) (c).

 

                   It appears to me that Ontario Hydro's facilities where nuclear power is used actually involve two plants:  one for the production of nuclear (heat) energy, and another for the generation of electricity using that heat energy.  Once the heat energy is produced, it matters little how it was produced for the rest of the generation phase.  As the parties have not, unfortunately, presented detailed evidence of job classifications and descriptions at Ontario Hydro's nuclear facilities, I would leave the precise details to the appropriate Labour Relations Boards.  The Ontario Labour Relations Board in this case did not indicate that it foresaw any difficulty in making such a determination, should its decision as to its jurisdiction be upheld on judicial review.

 

D.  Other Factors

 

                   (a) Laches

 

                   It was suggested by parties and interveners supporting provincial jurisdiction in this appeal that the failure of the federal government to actually regulate the labour relations of Ontario Hydro employees involved in the production of nuclear energy should weaken its present claim that federal jurisdiction over labour relations is integral to the federal regulation of atomic energy.

 

                   There is no doctrine of laches in constitutional division of powers doctrine; one level of government's failure to exercise its jurisdiction, or failure to intervene when another level of government exercises that jurisdiction, cannot be determinative of the constitutional analysis.  In this respect, I would adopt the statement of Reed J. in Alberta Government Telephones v. Canadian Radio-television and Telecommunications Commission, [1985] 2 F.C. 472 (T.D.), at p. 488:

 

The fact that constitutional jurisdiction remains unexercised for long periods of time or is improperly exercised for a long period of time, however, does not mean that there is thereby created some sort of constitutional squatters rights.  (Refer:  Attorney General of Manitoba v. Forest, [1979] 2 S.C.R. 1032 for a case in which unconstitutional action had remained unchallenged for ninety years.)

 

                   I do not understand any of the parties or interveners to suggest that any form of the doctrine of laches applies.  At best, the failure of the federal government to exercise its jurisdiction weakens the factual argument that such federal jurisdiction is necessary, but does not dispose of it.

 

                   However, just because labour relations have been successfully regulated under provincial law up to this challenge does not mean that authority to regulate them should be left there for the sake of expediency.  Similarly, the hypothesis that a provincial labour relations regime could respond to safety concerns as well as a federal regime, does not dispose of the question of which level of government should respond to such concerns.

 

                   (b) Problems of Divided Jurisdiction

 

                   It is important to remember the words of Estey J. in the 1983 Northern Telecom decision, supra, at p. 760, that this Court is not concerned "with the question of relative efficiency as between the assignment of the labour relations here in question to the federal or the provincial jurisdiction".  To similar effect are the comments of McIntyre J., for the Court, in Reference re Upper Churchill Water Rights Reversion Act, [1984] 1 S.C.R. 297, at p. 334:  ". . . it is not for this Court to consider the desirability of legislation from a social or economic perspective where a constitutional issue is raised".  McIntyre J. also quoted Laskin C.J. in Central Canada Potash Co. v. Government of Saskatchewan, [1979] 1 S.C.R. 42, who wrote at p. 76:

 

They [governments] are entitled to expect that the Courts, and especially this Court, will approach the task of appraisal of the constitutionality of social and economic programmes with sympathy and regard for the serious consequences of holding them ultra vires.  Yet, if the appraisal results in a clash with the Constitution, it is the latter which must govern.

 

                   In this case, Galligan J.A., and the parties and interveners supporting provincial jurisdiction, argued that "it would make no labour relations sense" to divide Ontario Hydro's labour relations between those employees engaged in the production of nuclear energy, and those employed in the other aspects of the generation phase, as well as the transmission and distribution phases.  While this is no doubt a concern, given my finding that Parliament has jurisdiction over the labour relations of these employees, it cannot be allowed to be a determinative one.

 

                   I am confident that the Ontario Labour Relations Board is capable of determining which employees fall under its jurisdiction, as was the Board itself.  Labour lawyers have worked out much more complicated matters than divided jurisdiction within Ontario Hydro's nuclear generating facilities.

 

III.  Disposition

 

                   I would dismiss the appeals, and confirm the order of the Court of Appeal reinstating the decision of the Ontario Labour Relations Board, and declaring that the Canada Labour Code  does apply to employees of Ontario Hydro who are employed on or in connection with those nuclear facilities that come under s. 18  AECA .  I would make no order as to costs.

 

                   The judgment of La Forest, L'Heureux-Dubé and Gonthier JJ. was delivered by

 

                   La Forest J. -- The issue in these appeals is whether the Ontario Labour Relations Act, R.S.O. 1990, c. L.2, or the federal Act, the Canada Labour Code, R.S.C., 1985, c. L-2 , constitutionally applies to govern the labour relations between Ontario Hydro and its employees at Hydro's nuclear electrical generating stations.

 

Background

 

                   Ontario Hydro, a provincially owned corporation established for the purpose of generating and distributing electric power, produces electric power through 81 electrical generating stations of which five are nuclear generating stations.  The Society of Ontario Hydro Professional and Administrative Employees applied for certification pursuant to the Ontario Labour Relations Act as exclusive bargaining agent for a unit of employees of Ontario Hydro, including those employed at the nuclear plants.  Another group of employees, the Coalition to Stop the Certification of the Society, challenged the application on the ground that the employees who worked at the nuclear generating stations fell within the jurisdiction of the Canada Labour Relations Board established under the Canada Labour Code .  The Ontario Labour Relations Board held it had no jurisdiction to certify the bargaining unit in the Society's application because the unit included employees who worked at the nuclear generating station, which in its view were governed by the Canada Labour Code :  [1988] OLRB Rep. Feb. 187.  This decision was quashed by the Ontario Divisional Court  (1989), 69 O.R. (2d) 268, 33 O.A.C. 302, 60 D.L.R. (4th) 542, 89 CLLC {PP} 14,044, but was reinstated by a majority of the Ontario Court of Appeal (1991), 1 O.R. (3d) 737, 43 O.A.C. 184, 77 D.L.R. (4th) 277, 91 CLLC {PP} 14,014.  Leave was sought and granted to appeal to this Court, [1991] 3 S.C.R. x.  The Chief Justice stated the following constitutional question:

 

Does the Labour Relations Act of Ontario, R.S.O. 1980, c. 228 [now R.S.O. 1990, c. L.2], or the Canada Labour Code, R.S.C., 1985, c. L-2 , constitutionally apply to the matter of labour relations between Ontario Hydro and those of its employees who are employed in Ontario Hydro's nuclear electrical generating stations which have been declared to be for the general advantage of Canada under s. 18 of the Atomic Energy Control Act, R.S.C., 1985, c. A-16 ?

 

                   As in the courts below, those who supported federal jurisdiction relied on Parliament's power to declare works, although wholly situate within a province, to be for the general advantage of Canada (ss. 92(10) (a) and 91(29)  of the Constitution Act, 1867 ), and its general power to legislate for the peace, order and good government of Canada in the opening words of s. 91 of that Act.  I note that all works and undertakings constructed "for the production, use and application of atomic energy" were declared works for the general advantage of Canada by s. 18 of the Atomic Energy Control Act, R.S.C., 1985, c. A-16 , and none of the parties contests that Ontario Hydro's nuclear facilities fall within the ambit of the declaration.  The appellants argue, however, that this does not bring within Parliament's jurisdiction the labour relations at those facilities, about which it has purported to legislate under the Canada Labour Code , which by the combined effect of ss. 2 (h) and 4  applies to works and undertakings within the legislative authority of Parliament, including works declared to be for the general advantage of Canada.

 

                   Those who supported provincial jurisdiction relied on the province's traditional power under s. 92  of the Constitution Act, 1867  to exclusively make laws in relation to local works and undertakings (s. 92(10) ), property and civil rights (s. 92(13) ), and matters of a merely local or private nature (s. 92(16) ), but they placed especial reliance on s. 92A(1)  (enacted by the Constitution Act, 1982 , s. 50 ), which empowers the provinces to exclusively make laws in relation to non-renewable natural resources, forestry resources, and electrical energy, and specifically on s. 92A(1) (c), which reads as follows:

 

                   92A.    (1)  In each province, the legislature may exclusively make laws in relation to

 

                                                                   . . .

 

                          (c)       development, conservation and management of sites and facilities in the province for the generation and production of electrical energy.

 

Ontario Hydro, while conceding that it was not a Crown agent, also argued that it should be immune from federal regulation because it was a provincial instrumentality set up to advance provincial purposes.

 

                   Justice Iacobucci (who fully sets forth the facts, judicial history and relevant legislation) is of the view that Parliament has exclusive jurisdiction under its declaratory power and the general power under s. 91  of the Constitution Act, 1867  over some aspects of the nuclear generating facilities, but that the control of labour relations at these facilities is not integral to Parliament's effective regulation of these facilities, and in consequence are governed as a provincial matter under the Labour Relations Act.  The Chief Justice, on the other hand, is of the view that the power to regulate the labour relations of those employed at these facilities for the production of nuclear energy is integral to Parliament's declaratory and general power.  For the reasons that follow, I agree with the conclusion reached by the Chief Justice.  In my view, the regulation of the labour relations of employees engaged in the production of nuclear energy falls within the exclusive powers granted to Parliament under the combined effect of the opening and closing words and head (29) of s. 91 , and s. 92(10) (c) of the Constitution Act, 1867 .  I shall first discuss the declaratory power.

 

The Declaratory Power

 

                   Section 92(10) (c) of the Constitution Act, 1867  authorizes Parliament to declare local works (which by s. 92(10)  would otherwise fall within provincial power) to be for the general advantage of Canada.  When such a declaration is made, any work subject to the declaration falls, by virtue of s. 91(29) , within the legislative jurisdiction of Parliament.  The effect of the declaration is the same as if such work was expressly enumerated in s. 91 ; see City of Montreal v. Montreal Street Railway Co., [1912] A.C. 333, at p. 342.  This is scarcely surprising.  The opening and closing words of s. 91  make it clear that (notwithstanding anything in the Act) Parliament's exclusive legislative authority extends to such classes of subjects as are expressly excepted from the provincial enumeration of powers, including, of course, those specified in s. 92(10) (c); see also Commission du salaire minimum v. Bell Telephone Co. of Canada, [1966] S.C.R. 767 (Bell Canada 1966), at pp. 771-72, per Martland J. for the Court.  A work subject to a declaration thus falls within the exclusive legislative power of Parliament, and provincial jurisdiction over the work is ousted; see Wilson v. Esquimalt and Nanaimo Railway Co., [1922] 1 A.C. 202, at p. 207.  Laws of general application in the province (such as taxation) will, of course, apply to the work, but these cannot touch an integral part of Parliament's jurisdiction over the work.  The province cannot legislate respecting the work qua work.  As early as 1899, the Privy Council made it clear that classes of subjects expressly excepted from the enumeration of provincial subjects of provincial legislative power (which, of course, includes works subject to a declaration) included the power not only to construct, repair and alter such a work but its management as well; see Canadian Pacific Railway Co. v. Corporation of the Parish of Notre Dame de Bonsecours, [1899] A.C. 367, at pp. 372-73.

 

                   The law on the matter has not really changed since then, though it has been subjected to considerable elaboration.  Thus, as Iacobucci J. notes, recent authorities underscore that federal jurisdiction over declared works includes jurisdiction to regulate their operations; see Chamney v. The Queen, [1975] 2 S.C.R. 151, at p. 159; see also The Queen v. Thumlert (1959), 20 D.L.R. (2d) 335 (Alta. S.C., App. Div.), at p. 341.  A declaration incorporates a work as a functioning unit; in Laskin's words, the declaration "must surely be to bring within federal authority not only the physical shell or facility but also the integrated activity carried on therein; in other words, the declaration operates on the work in its functional character"; see Laskin's Canadian Constitutional Law (5th ed. 1986), vol. 1, at p. 629.  For my part, I am at a loss to see how one can have exclusive power to operate and manage a work without having exclusive power to regulate the labour relations between management and the employees engaged in that enterprise.  That is what this Court has repeatedly stated; see Bell Canada 1966, supra, and Bell Canada v. Quebec (Commission de la santé et de la sécurité du travail), [1988] 1 S.C.R. 749 (Bell Canada 1988), esp. at pp. 839-40.  As Beetz J. put it in the latter case, "these are two elements of the same reality" (p. 798).

 

                   In my view, most of the issues raised in this case have been fully disposed of by Beetz J. in his characteristically clear and thorough manner in the Bell Canada 1988 case and its companion cases in the 1988 trilogy (Canadian National Railway Co. v. Courtois, [1988] 1 S.C.R. 868, and Alltrans Express Ltd. v. British Columbia (Workers' Compensation Board), [1988] 1 S.C.R. 897), but it seems necessary, in light of the argument, to draw attention to those parts of his analysis specifically relevant here.  I begin by noting that in the Bell Canada 1988 case, at p. 825, he approved what he described as the classic statement on the subject by Abbott J. in Reference re Industrial Relations and Disputes Investigation Act, [1955] S.C.R. 529 (the Stevedoring case), at p. 592, which reads as follows:

 

                   The right to strike and the right to bargain collectively are now generally recognized, and the determination of such matters as hours of work, rates of wages, working conditions and the like, is in my opinion a vital part of the management and operation of any commercial or industrial undertaking.  This being so, the power to regulate such matters, in the case of undertakings which fall within the legislative authority of Parliament lies with Parliament and not with the Provincial Legislatures.  [Emphasis added by Beetz J.]

 

                   I should observe that Beetz J. had earlier very generally described "working conditions" for the purposes of the trilogy as including the conditions of work settled by contracts of employment or collective agreements.  As he put it, at pp. 798-99:  "working conditions are conditions under which a worker or workers, individually or collectively, provide their services, in accordance with the rights and obligations included in the contract of employment by the consent of the parties or by operation of law, and under which the employer receives those services".

 

                   It is argued, however, that Bell Canada 1988 and other earlier cases were confined to "undertakings" in s. 92(10) (a) and (b) and not to works in s. 92(10) (c).  Simply put, I cannot accept this.  I have already observed that the Bonsecours case in its terms applied to all the exceptions in s. 92(10) .  And that is true of several of the cases relied upon by Beetz J. in Bell Canada 1988.  Thus in Letter Carriers' Union of Canada v. Canadian Union of Postal Workers, [1975] 1 S.C.R. 178 (cited in Bell Canada 1988, at p. 820), Ritchie J. stated at p. 181 that "it has been established that it is not within the competency of a provincial legislature to legislate concerning industrial relations of persons employed in a work, business or undertaking coming within the exclusive jurisdiction of the Parliament of Canada" (emphasis added).  Similar statements may be found in the Stevedoring case, supra.  Thus Fauteux J., at p. 585 (cited in Bell Canada 1988, at p. 825) spoke of "labour operations within this limited field of works, undertakings and businesses as to which the regulation by law is, under the B.N.A. Act, committed to the legislative authority of Parliament".  Beetz J. in Bell Canada 1988, at pp. 830-31, like Martland J. before him in Bell Canada 1966, at pp. 774-75, also relied on Duff J.'s statement in Reference re Legislative Jurisdiction over Hours of Labour, [1925] S.C.R. 505, at p. 511, regarding the federal powers of regulation touching the employment of persons on works or undertakings.

 

                   Beetz J. himself makes it clear on at least three occasions (pp. 761-62, 816-17 and 820) that despite the fact that labour relations ordinarily fall within s. 92(13)  of the Constitution Act, 1867  (his "proposition two") that is not so of works or undertakings legislative jurisdiction over which is vested in Parliament.  He says at pp. 761-62:

 

                   Notwithstanding the rule stated in proposition two, Parliament is vested with exclusive legislative jurisdiction over labour relations and working conditions when that jurisdiction is an integral part of its primary and exclusive jurisdiction over another class of subjects, as is the case with labour relations and working conditions in the federal undertakings covered by ss. 91(29)  and 92(10) a., b. and c. of the Constitution Act, 1867 , that is undertakings such as Alltrans Express Ltd., Canadian National and Bell Canada.  It follows that this primary and exclusive jurisdiction precludes the application to those undertakings of provincial statutes relating to labour relations and working conditions, since such matters are an essential part of the very management and operation of such undertakings, as with any commercial or industrial undertaking. . . .   [Emphasis added.]

 

I emphasize that Beetz J. there includes s. 92(10) (c), i.e., declared works, among those undertakings subject to exclusive federal power.  And he continues in the next paragraph (at p. 762):

 

                   It should however be noted that the rules stated in this third proposition appear to constitute only one facet of a more general rule:  works, such as federal railways, things, such as land reserved for Indians, and persons, such as Indians, who are within the special and exclusive jurisdiction of Parliament, are still subject to provincial statutes that are general in their application, whether municipal legislation, legislation on adoption, hunting or the distribution of family property, provided however that the application of these provincial laws does not bear upon those subjects in what makes them specifically of federal jurisdiction. . . .  [Emphasis added.]

 

I underline that in the last line of this statement Beetz J. explains that provincial laws cannot apply to matters specifically of federal jurisdiction, and that in the previous paragraph he had unequivocally asserted that labour relations are an integral part of Parliament's primary and exclusive jurisdiction over matters covered by, inter alia, s. 92(10) (c) "declared works".

 

                   These statements are scarcely surprising.  As I noted earlier, the legislative jurisdiction conferred over a declared work refers to the work as a going concern or functioning unit, which involves control over its operation and management.  And as I recently noted in Re Canada Labour Code, [1992] 2 S.C.R. 50, at p. 78, inevitably "labour relations tribunals impinge upon powers that have traditionally been considered to be management prerogatives".  Labour relations are integral and vital parts of the operation of a work.  There is no room for mutual modification of federal and provincial power.  A province undoubtedly has power by general legislation to affect the operation of a declared work, but legislation governing labour relations on such works is legislation in relation to that work and falls outside provincial legislative competence; see the reasons of Pratte J.A. (Stone J.A. concurring) in Shur Gain Division, Canada Packers Inc. v. National Automobile, Aerospace and Agricultural Implement Workers Union of Canada, [1992] 2 F.C. 3, at pp. 35-37, and the other Federal Court of Appeal cases there cited.  Labour relations are an integral part of Parliament's exclusive power to legislate in relation to declared works.  No evidence is required to establish this.

 

                   I add in passing that the current goals of labour relations, upon which my colleague Iacobucci J. places considerable stress, have nothing to do with the source of the legislative power.  As I understand it, he argues for provincial power over labour relations from what he perceives to be the primary purpose of labour relations, i.e., the preservation of industrial peace and empowerment of workers.  The provinces undoubtedly have a direct interest in such goals in furtherance of their general jurisdiction over property and civil rights, but this general power must give way in specific areas exclusively assigned to the federal Parliament, specifically in relation to federal works, i.e., works falling within federal legislative competence.  In legislating on labour relations in this area, Parliament is engaged in regulating the work.  In doing so, it may adopt, and indeed, has adopted legislation similar to provincial legislation.  But this it does under its legislative power to manage and control the work, and this, of course, affects property and civil rights.  The fact that Parliament in operating and controlling federal works adopts labour relations policies that are similar to policies adopted by the provinces does not make these policies fall within property and civil rights within s. 92(13) .  Beetz J. made it clear that the regulation of labour relations in the exercise of a federal power constitutes an exception to the general provincial power to legislate on the matter as property and civil rights in the province.

 

                   It is not necessary for me to engage in a consideration of the possible difference in scope between "undertakings" and "works" for the purposes of the various items in s. 92(10) .  I mentioned earlier that a work under s. 92(10) (c) means a work as a going concern, and to manage that going concern Parliament must have power to regulate the labour relations between management and labour engaged in operating the work.  I see no logical or practical difference in the need for control of the labour relations in the management of an undertaking and in the management of a work as so understood.  In that sense, a work is an undertaking, an undertaking, however, that must include a work.  Rand J. in the Stevedoring case, supra, at p. 553, appears to have had this idea in mind in the following statement:

 

                   The former [i.e., declared works], so far as the works themselves are likewise undertakings, would be such as yield some mode of service of a public or quasi-public nature.  I see no distinction to be made between them and dominion works and undertakings generally.  Undertakings, existing without works, do not appear in 92(10)(c) and cannot be the subject of such a declaration.

 

This would appear to have been the sense in which Beetz J., in Bell Canada 1988, referred to undertakings in s. 92(10) (c) because he knew, of course, that that provision referred to works only.  As well, we saw, he relies on numerous statements that refer to both works and undertakings.

 

                   In this context, I note that s. 18 of the Atomic Energy Control Act, inter alia, makes both "works and undertakings . . . for the production, use and application of atomic energy" subject to the declaration.  This probably was meant to include matters necessary to the operation of a nuclear facility, and as such would be superfluous.  Certainly, it was not meant to cover the whole of the undertaking of Ontario Hydro.  The declaration is confined to facilities constructed for the production, use and application of atomic energy, not to those constructed for the production of electrical energy by other means.  The precise determination of which persons are employed in one type of facility or the other may, no doubt, give rise to problems of categorization.  That issue is not, however, before us, we have no evidence on it, and I refrain from commenting on the matter.

 

Specific Arguments

 

                   What has already been said is sufficient to dispose of this aspect of the case but I shall attempt to respond to a number of specific arguments made by the appellants.

 

                   It was argued that the declaratory power must be read narrowly to make it conform to principles of federalism.  There is no doubt that the declaratory power is an unusual one that fits uncomfortably in an ideal conceptual view of federalism.  But the Constitution must be read as it is, and not in accordance with abstract notions of theorists.  It expressly provides for the transfer of provincial powers to the federal Parliament over certain works.  That is clearly set forth in the statement of Duff J. in Reference re Waters and Water-Powers, [1929] S.C.R. 200, at p. 220, cited by Iacobucci J. at pp. 397-98.  This is scarcely an isolated statement.  Mignault J. had expressed the same thought in at least as strong terms in the following passage in Luscar Collieries Ltd. v. McDonald, [1925] S.C.R. 460, at p. 480:

 

                   The power conferred on Parliament to declare that works wholly situate within the province are for the general advantage of Canada or for the advantage of two or more of the provinces, is obviously a far-reaching power.  Parliament is the sole judge of the advisability of making this declaration as a matter of policy which it alone can decide.  And when the power is exercised in conformity with the grant, it vests in Parliament exclusive legislative authority over the local work which it removes from the provincial to the federal field of jurisdiction.

 

                   There is no authority supporting the view that the declaratory power should be narrowly construed.  Quite the contrary.  It might, I suppose, have been possible to interpret s. 92(10) (c) so as to confine it to works related to communications and transportation such as those specifically listed in s. 92(10) (a) and (b) but the courts, including this Court, have never shown any disposition to so limit its operation, and a wide variety of works ‑‑ railways, bridges, telephone facilities, grain elevators, feed mills, atomic energy and munition factories ‑- have been held to have been validly declared to be for the general advantage of Canada.  I note that neither the Chief Justice nor Iacobucci J. have any doubt about this.

 

                   The restricted view advanced here for the first time appears to be based on the danger thought to be posed to the structure of Canadian federalism if the courts do not confine federal power in this area.  To begin with, I fail to see how abstracting from Parliament the power to regulate labour relations (which I have observed is necessary for the proper management of a work), while leaving all other regulation of the work to the federal government, does much to advance the federal principle.  And I scarcely see the logic of having labour relations in federal undertakings fall within federal legislative power, but not labour relations in federal works.  But more fundamentally I think the argument evinces a misunderstanding of the respective roles of law and politics in the specifically Canadian form of federalism established by the Constitution.

 

                   I should first of all observe that the declaratory power is not the only draconian power vested in the federal authorities.  The powers of disallowance and reservation accorded the federal government by ss. 55 -57  and 90  of the Constitution Act, 1867  give it unrestricted authority to veto any provincial legislation; see Wilson v. Esquimalt and Nanaimo Railway Co., supra, at p. 210; see also Reference re Disallowance and Reservation, [1938] S.C.R. 71.  The exercise of this authority is wholly a matter of discretion for the federal government, and in the Reference case just noted, it was stated that the courts are not constitutionally empowered to express an opinion about its exercise (see p. 95); for a similar statement regarding the declaratory power, see The Queen v. Thumlert, supra.  The declaratory and veto powers were frequently used in tandem in the early years following union to accomplish the original constitutional mandate by establishing the authority of the central government and its policies, and in particular to ensure the construction of the intercontinental railway.  Later, the declaratory power was effectively used as a tool to regulate the national grain market in the pursuit of the constitutional vision of integrating the western region of Canada into the country.

 

                   But even in the heady early days when the exercise of these powers was commonplace because of the constitutional mandate to create a single country, their use for other purposes was firmly, and ultimately successfully, challenged.  Both powers faded almost into desuetude when these large constitutional and national tasks had been accomplished.  The power of disallowance, which had long been in decline, has not been used since 1942.  The declaratory power has suffered a similar fate and has been used only twice since the 1960s.  It is the very breadth of these powers that protects against their frequent or inappropriate use.  It was not the courts but political forces that dictated their near demise.  They are, as was said of the power of disallowance, "delicate" and "difficult" powers to exercise and "will always be considered a harsh exercise of power, unless in cases of great and manifest necessity . . ."; see Severn v. The Queen (1878), 2 S.C.R. 70, per Richards C.J., at p. 96, and Fournier J., at p. 131.  Their inappropriate use will always raise grave political issues, issues that the provincial authorities and the citizenry would be quick to raise.  In a word, protection against abuse of these draconian powers is left to the inchoate but very real and effective political forces that undergird federalism.

 

                   I see nothing in the statement in Reference re Resolution to Amend the Constitution, [1981] 1 S.C.R. 753, to the effect that a substantial measure of provincial consent was required before the Constitution could be amended that is in any way at odds with this.  For the Court in that case made it clear that it was not within its province to enforce this requirement.  It was, it noted, a convention.  The enforcement of conventions lies in the political, not the legal field.  They can be broken, and the courts have no power to prevent this, but there is a political price to pay.  The courts have not engaged in the task of defining the manner in which these broad political bases of Canadian federalism should be protected.  The Constitution has not accorded them that mandate.  These are matters for the people.  This is not to say that the courts do not have an important, indeed essential, role in balancing federalism as they go about their task of defining the nature and effect of those great but more subtle powers, not susceptible of definition and direction by those elemental political forces that undergird Canadian federalism.  Finally I should add that Dickson C.J.'s description in General Motors of Canada Ltd. v. City National Leasing, [1989] 1 S.C.R. 641, at p. 671, of federal power under s. 92(10)  as "narrow and distinct" has nothing to do with the present case at all.  He was there comparing this and other particularized powers with broadly described powers, such as trade and commerce, and the extent to which incidental exercises of jurisdiction could be "tacked-on" to these various powers.

 

                   I next note the argument that the declared nuclear facilities fall to be regulated by federal authorities but only in relation to their safety and security aspects not labour relations generally.  This approach is supported by reliance on the preamble to the Atomic Energy Control Act.  The preamble may set forth the purpose why Parliament declared works for the development of atomic energy to be for the general advantage.  But once the declaration is made the legislative power flowing therefrom is governed by the Constitution.  As noted earlier, the work subject to the declaration is in the same position as if it were expressly mentioned in the Constitution.  At best, the preamble might give some clue as to what works were intended to be covered by the declaration; it cannot, however, define the scope of legislative power to be exercised by Parliament in respect of a work, once it is determined that it falls within the ambit of a declaration.  I should add that I find difficulty in understanding the argument because safety and security are as much in jeopardy from the manner in which employees do their work as in the manner in which a facility is constructed, and, as the Chief Justice points out, many of the regulations of the Atomic Energy Control Board have to do with labour relations.  The fact that these are established by one federal organism rather than another does not affect their character.

 

                   In truth, I find that this attempted restriction of federal power to health and security considerations flies in the face of the Act.  What the declaration there gives Parliament is jurisdiction, inter alia, over works constructed for the production, use and application of atomic energy.  In making legislation to that end, I fail to see how one can logically limit it to health and security concerns.

 

                   Again, there is the argument that for many years the parties resorted to the Ontario Labour Relations Act rather than the Canada Labour Code .  But this, as I see it, is of no moment.  The case is not dissimilar in that respect from Attorney-General for Ontario v. Winner, [1954] A.C. 541, where the province had exercised jurisdiction over interprovincial motor transportation for an even longer period.

 

                   Finally there is the argument based on inconvenience.  Bifurcating legislative power over labour relations in Ontario Hydro, a single enterprise, would, it is said, create practical difficulties.  Two sets of rules would apply to different employees and, of course, there is the difficulty of drawing the line between federal matters and provincial matters.  These problems are not really new.  The interrelationship between Parliament's power over federal works and closely related provincial activity has always raised practical difficulties.  Even the present type of difficulty is not unique.  In Shur Gain Division, supra, the Federal Court of Canada had occasion to deal with a similar situation.  Again, it is obvious from a close reading of the Stevedoring case, supra, that had the shipping company there been engaged solely in intraprovincial shipping (as opposed to interprovincial as was assumed), stevedores could not have been combined in a unit comprising office employees or other workers engaged in matters not related to navigation.  Similar views are expressed in other cases; see, for example, R. v. Picard, Ex parte International Longshoremen's Association, Local 375 (1967), 65 D.L.R. (2d) 658 (Que. Q.B.), and Northern Telecom Ltd. v. Communications Workers of Canada, [1980] 1 S.C.R. 115.  Various techniques of administrative inter-delegation have been developed to deal with problems of conjoint interest following upon the case of Winner, supra.  If the problems here are sufficiently acute, and Parliament deems it appropriate to do so, resort could be had to such techniques.

 

Other Provincial Powers Over Works ‑‑ Section 92A 

 

                   The appellants also sought to argue that the works described in s. 92(10) (c) did not extend to works specifically mentioned in other provisions of the Constitution.  As Iacobucci J. has observed, this involves interpreting the Constitution as consisting of logic type compartments.  The Constitution must, rather, be interpreted as an organic instrument.  I accept my colleague's conclusion that s. 92(10) (c) extends to works created under other headings in s. 92 , and s. 92A  cannot be considered any different in this respect.  Provisions granting legislative powers placed in separate sections to provide for qualifications to those powers should be treated, subject of course to those qualifications, in the same way; see Reference re Bill 30, An Act to amend the Education Act (Ont.), [1987] 1 S.C.R. 1148, per Estey J. (Beetz J. concurring), at p. 1201.  As will be seen, I agree with Iacobucci J. as well that s. 92A  does not have the effect of removing from the ambit of Parliament's authority works declared to be for the general advantage of Canada.  Where I differ from my colleague is with his view of the nature of the power accorded to the provinces by s. 92A(1) (c) to legislate in relation to the development, conservation and management of sites and facilities in the province for the generation of electrical energy.

 

                   It must be confessed that s. 92A(1) , including para. (c), do not, at least at first sight, appear to add much to the broad and general catalogue of provincial powers; see P. W. Hogg, Constitutional Law of Canada (3rd ed. 1992), vol. 1, at p. 29-19.  So it is tempting to seek additional meaning from the provision.  It may be, however, that s. 92A(1)  is merely preliminary to the provisions that follow, although, as I will indicate, it, at a minimum, fortifies the pre-existing provincial powers.  There is reason to think this was one of its major goals.

 

                   To understand the situation, it is useful to examine the backdrop against which s. 92A  was passed.  In a general sense, the interventionist policies of the federal authorities in the 1970s in relation to natural resources, particularly oil and other petroleum products, were a source of major concern to the provinces.  These concerns were by no means minimized by cases such as Canadian Industrial Gas & Oil Ltd. v. Government of Saskatchewan, [1978] 2 S.C.R. 545, and Central Canada Potash Co. v. Government of Saskatchewan, [1979] 1 S.C.R. 42, which underlined the severe limits on provincial power over resources that are mainly exported out of the province, as well as on the provincial power to tax these resources.

 

                   It was to respond to this insecurity about provincial jurisdiction over resources ‑‑ one of the mainstays of provincial power ‑‑ that s. 92A  was enacted.  Section 92A(1)  reassures by restating this jurisdiction in contemporary terms, and the following provisions go on, for the first time, to authorize the provinces to legislate for the export of resources to other provinces subject to Parliament's paramount legislative power in the area, as well as to permit indirect taxation in respect of resources so long as such taxes do not discriminate against other provinces.

 

                   Most commentators mention only these issues in describing the background against which s. 92A  was enacted, but there were others, specifically in relation to the generation, production and exporting of electrical energy, that must have been seen as a threat to provincial autonomy in these areas.  In most of the provinces, at least, the generation and distribution of electrical energy is done by the same undertaking.  There is an integrated and interconnected system beginning at the generating plant and extending to its ultimate destination.  There was authority that indicated that even an emergency interprovincial grid system might effect an interconnection between utilities sufficient to make the whole system a work connecting or extending beyond the province, and so falling within federal jurisdiction within the meaning of s. 92(10) (a) of the Constitution Act, 1867 ; see British Columbia Power Corp. v. Attorney-General of British Columbia (1963), 44 W.W.R. 65 (B.C.S.C.).  More important, provincial power commissions supply electrical energy to other provinces and the United States on "a regular and continuing basis", which a number of cases in other areas have held to be sufficient to make an integrated undertaking fall within federal legislative competence; see, for example, Re Tank Truck Transport Ltd. (1960), 25 D.L.R. (2d) 161 (Ont. H.C.), aff'd [1963] 1 O.R. 272 (C.A.).  There was danger, then, that at least the supply system and conceivably the whole undertaking, from production to export, could be viewed as being a federal undertaking.  For a discussion of these problems as they appeared in the period preceding the enactment of s. 92A , see G. V. La Forest and Associates, Water Law in Canada (1973), at pp. 46 et seq., esp. at pp. 50-51, 53-56.  While a number of commentators, including myself, did not share this view of the law, the result on the authorities was by no means certain.  The express grant of legislative power over the development of facilities for the generation and production of electrical energy (s. 92A(1) (c)), coupled with the legislative power in relation to the export of electrical energy offers at least comfort for the position that, leaving aside other heads of power, the development, conservation and management of generating facilities fall exclusively within provincial competence.  The nature of provincial electrical generating and distribution systems at the time of the passing of s. 92A  must have been appreciated.

 

                   What is important to note is that the danger to provincial autonomy over the generation of electrical energy did not arise out of the discretion Parliament had or might in future exercise under its declaratory power.  The danger, rather, lay in the possible transformation of these enterprises into purely federal undertakings by reason of their connection or extension beyond the province.  Section 92A  ensures the province the management, including the regulation of labour relations, of the sites and facilities for the generation and production of electrical energy that might otherwise be threatened by s. 92(10) (a).  But I cannot believe it was meant to interfere with the paramount power vested in Parliament by virtue of the declaratory power (or for that matter Parliament's general power to legislate for the peace, order and good government of Canada) over "[a]ll works and undertakings constructed for the production, use and application of atomic energy".  This, as already seen, comprises the management of these facilities, displacing any management powers the province might otherwise have had under s. 92A .  And a vital part of the power of management is the power to regulate labour relations.

 

 

Peace, Order and Good Government

 

                   This case can equally well be disposed of under Parliament's power to legislate over matters of national concern under the peace, order and good government clause in s. 91  of the Constitution Act, 1867 .  There can surely be no doubt that the production, use and application of atomic energy constitute a matter of national concern.  It is predominantly extra-provincial and international in character and implications, and possesses sufficiently distinct and separate characteristics to make it subject to Parliament's residual power; see Reference re Anti-Inflation Act, [1976] 2 S.C.R. 373, and R. v. Crown Zellerbach Canada Ltd., [1988] 1 S.C.R. 401.  No one seriously disputed this assertion, and my colleagues both agree that this is so.  The view of the Attorney General of Canada is supported by authority in the lower courts; see Pronto Uranium Mines Ltd. v. Ontario Labour Relations Board, [1956] O.R. 862 (H.C.), at p. 869; and Denison Mines Ltd. v. Attorney-General of Canada, [1973] 1 O.R. 797 (H.C.), at p. 808.  The strategic and security aspects of nuclear power in relation to national defence and the catastrophe and near catastrophe associated with its peaceful use and development at Chernobyl and Three Mile Island bespeak its national character and uniqueness.

 

                   The appellants, we saw, argue, however, that the distinct aspects over which atomic energy rises to the national level are those concerned with health and safety.  But this very argument is self-defeating.  With the inherent potential dangers associated with nuclear fission, industrial safety ‑‑ indeed the safety of people hundreds of miles from a nuclear facility ‑‑ is necessarily dependant on the personnel who operate the facility.  A strike, and indeed mere carelessness, could invite disaster.  As the Attorney General of Canada put it:  "The whole purpose of federal regulation of nuclear electrical generating plants would be frustrated if Parliament could not govern the standards and conditions for employment of the individuals who operate the plant, both for their own safety, and for that of the general public."

 

                   Quite apart from this doomsday scenario, what was said in the context of a work subject to the declaratory power applies equally to a work over which Parliament has jurisdiction under its general power in relation to matters of national concern.  Labour relations are an integral part of that jurisdiction.  I observe that this approach had been adopted in Pronto, supra.

 

                   I add that what I have had to say about the relationship of nuclear facilities to various provincial legislative powers, including those arising out of s. 92A  of the Constitution Act, 1867 , fully applies here.

 

Provincial Instrumentality

 

                   Finally, the appellant Ontario Hydro advanced the notion that federal legislation should be so interpreted as not to apply to corporations set up to advance a provincial purpose.  It conceded, however, that it was not a Crown agent and so not entitled to Crown immunity in the traditional sense.  The Attorney General for New Brunswick did, however, argue that Crown immunity should apply where Crown agency is established.  It is, therefore, right to say that the latter argument cannot stand in view of my holding that provincial laws regarding labour relations are inapplicable to works falling within the exclusive legislative jurisdiction of Parliament, since such legislation falls within the core of that jurisdiction.

 

                   Turning to Ontario Hydro's argument about provincial instrumentalities, I note that a similar argument was advanced by Alberta in relation to a "provincial project", the Oldman River Dam; see Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3, at pp. 63, 68-69.  The Court rejected this contention, which it branded as not particularly helpful in sorting out constitutional authority over the work and as positing a type of interjurisdictional immunity that had earlier been rejected in Alberta Government Telephones v. Canada (Canadian Radio-television and Telecommunications Commission), [1989] 2 S.C.R. 225, at p. 275.  Similar considerations apply here.  The fallacy in this context appears to result from the failure to recognize labour relations as vital aspects of the management of nuclear facilities, for no similar argument is made in respect of regulations under the Atomic Energy Control Act.

 

Disposition

 

                   I would dismiss the appeals and confirm the order of the Court of Appeal reinstating the decision of the Ontario Labour Relations Board, and declaring that the Canada Labour Code  applies to employees of Ontario Hydro who are employed on or in connection with nuclear facilities that come under s. 18 of the Atomic Energy Control Act.  I would make no order as to costs.

 

                   The reasons of Sopinka, Cory and Iacobucci JJ. were delivered by

 

                   Iacobucci J. (dissenting) -- The question in these appeals is whether the Ontario Labour Relations Act, R.S.O. 1990, c. L.2, or the Canada Labour Code, R.S.C., 1985, c. L-2 , constitutionally applies to govern labour relations between Ontario Hydro and those of its employees who are employed in Ontario Hydro's nuclear electrical generating stations.  Although technically there are two appeals involved, in substance there is only one and so I refer herein to both as "the appeal".

 

I.  Facts

 

                   Ontario Hydro is a corporation owned by the province of Ontario and no one disputes that it is not a Crown agent.  Its affairs are governed by the Power Corporation Act, R.S.O. 1990, c. P.18.  Ontario Hydro has 81 electrical generating stations of which five are nuclear electrical generating stations.  These five nuclear plants provide roughly 48 percent of Ontario Hydro's total electrical power generating capacity.  Power is generated in the nuclear stations by way of CANDU reactors which, through the process of nuclear fission, produce enough energy to drive the facilities' turbines.  Once generated, this power (along with that originating from thermal and hydraulic generating stations) is distributed throughout the province by way of a network of transformer and distribution stations.  Plutonium, deuterium and deuterium oxide, cobalt-60, and tritium and tritium oxide are produced during the electricity generating process:  these substances are all prescribed under the Atomic Energy Control Act, R.S.C., 1985, c. A-16 .

 

                   The operation of a nuclear reactor is heavily regulated by federal legislation.  Section 18 of the Atomic Energy Control Act declares that all works and undertakings constructed for the production of atomic energy and the production of prescribed substances are works for the general advantage of Canada.  Each of Ontario Hydro's CANDU reactors is covered by a licence issued by the Atomic Energy Control Board ("AECB") under the regulations made under the Atomic Energy Control Act.  These licences impose requirements with respect to the way Ontario Hydro operates the facilities, Ontario Hydro's radiation protection measures and emergency procedures, and the measures taken regarding the physical security of fissionable prescribed substances and of the facilities themselves.  The licences also dictate minimum staffing levels in the control rooms, require written AECB approval of certain staff positions in the facilities (including those in positions affected by the application for certification which initiated the present action), and prescribe that significant staffing and organizational changes in the facilities require prior notice to and the written permission of the AECB.  Notwithstanding the declaration in s. 18 of the Atomic Energy Control Act, some employees at Ontario Hydro's Bruce nuclear plant have been unionized under provincial labour legislation since 1973.

 

                   This case arose when the Society of Ontario Hydro Professional and Administrative Employees ("Society") applied under the Ontario Labour Relations Act to the Ontario Labour Relations Board ("OLRB") for certification as the exclusive bargaining agent for a unit of administrative, scientific and professional engineering employees of Ontario Hydro, including those employed at Ontario Hydro's nuclear plants.  The application was challenged by a group of employees calling themselves the Coalition to Stop the Certification of the Society.  One of the grounds for the challenge was that the OLRB was without jurisdiction to certify the proposed bargaining unit because some of the employees within the proposed unit, viz. those who worked at Ontario Hydro's nuclear generating stations and at the construction site for the nuclear generating station at Darlington, fall under the jurisdiction of the Canada Labour Code .  The Coalition claimed that the declaration in s. 18 of the Atomic Energy Control Act, combined with ss. 91(29)  and 92(10) (c) of the Constitution Act, 1867 , brought Ontario Hydro's nuclear generating stations within exclusive federal jurisdiction with respect to labour relations because s. 4  of the Canada Labour Code  declares the Code applicable to all persons employed on or in connection with a federal work.

 

                   The OLRB held hearings to determine whether or not it had jurisdiction to include in the proposed bargaining unit a category of employees definable by reference to s. 18 of the Atomic Energy Control Act.  The Attorneys General of Canada and Ontario declined to participate in these hearings but the Canadian Union of Public Employees ("CUPE"), which was then certified as the bargaining agent for all unionized employees of Ontario Hydro including employees at the Bruce nuclear plant, participated with the consent of the parties.  The OLRB held that it had no jurisdiction to certify the bargaining unit in the Society's application because the proposed unit included employees, employed on or in connection with the nuclear generating stations, who fell under the jurisdiction of the Canada Labour Code : [1988] OLRB Rep. Feb. 187.

 

                   Ontario Hydro, supported by the Society and CUPE, applied to the Ontario Divisional Court for judicial review by way of an order in the nature of certiorari quashing this decision of the OLRB; the Attorney General of Canada intervened at this stage of the proceedings in support of the OLRB.  The Divisional Court granted the application for certiorari, quashed the OLRB's decision, and issued mandamus ordering the OLRB to deal with the Society's certification application: (1989), 69 O.R. (2d) 268, 33 O.A.C. 302, 60 D.L.R. (4th) 542, 89 CLLC {PP} 14,044.

 

                   The Attorney General of Canada appealed that decision to the Ontario Court of Appeal.  The Court of Appeal, Galligan J.A. dissenting, allowed the appeal, set aside the decision of the Divisional Court and ordered that the decision of the OLRB be reinstated: (1991), 1 O.R. (3d) 737, 43 O.A.C. 184, 77 D.L.R. (4th) 277, 91 CLLC {PP} 14,014 (hereinafter cited to O.R.).  This Court granted leave to appeal, [1991] 3 S.C.R. x, and the Chief Justice stated the following constitutional question:

 

Does the Labour Relations Act of Ontario, R.S.O. 1980, c. 228 [now R.S.O. 1990, c. L.2], or the Canada Labour Code, R.S.C., 1985, c. L-2 , constitutionally apply to the matter of labour relations between Ontario Hydro and those of its employees who are employed in Ontario Hydro's nuclear electrical generating stations which have been declared to be for the general advantage of Canada under s. 18 of the Atomic Energy Control Act, R.S.C., 1985, c. A-16 ?

 

II.                Relevant Legislation and Constitutional Provisions

 

Atomic Energy Control Act, R.S.C., 1985, c. A-16 

 

 

                   Whereas it is essential in the national interest to make provision for the control and supervision of the development, application and use of atomic energy and to enable Canada to participate effectively in measures of international control of atomic energy that may hereafter be agreed on;

 

                                                                   . . .

 

                   18. All works and undertakings constructed

 

                   (a) for the production, use and application of atomic energy,

 

(b) for research or investigation with respect to atomic energy, and

 

(c) for the production, refining or treatment of prescribed substances,

 

are, and each of them is declared to be, works or a work for the general advantage of Canada.

 

 

 

Canada Labour Code, R.S.C., 1985, c. L-2 

 

 

                               2. In this Act,

 

"federal work, undertaking or business" means any work, undertaking or business that is within the legislative authority of Parliament, including, without restricting the generality of the foregoing,

 

                                                                   . . .

 

(h) a work or undertaking that, although wholly situated within a province, is before or after its execution declared by Parliament to be for the general advantage of Canada or for the advantage of two or more of the provinces, and

 

(i) a work, undertaking or business outside the exclusive legislative authority of the legislatures of the provinces;

 

                                                                   . . .

 

                   4. This Part applies in respect of employees who are employed on or in connection with the operation of any federal work, undertaking or business, in respect of the employers of all such employees in their relations with those employees and in respect of trade unions and employers' organizations composed of those employees or employers.

 

 

 

Constitution Act, 1867 

 

 

                   91. It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces; and for greater Certainty, but not so as to restrict the Generality of the foregoing Terms of this Section, it is hereby declared that (notwithstanding anything in this Act) the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next herein‑after enumerated; that is to say,--

 

                                                                   . . .

 

29. Such Classes of Subjects as are expressly excepted in the Enumeration of the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces.

 

And any Matter coming within any of the Classes of Subjects enumerated in this Section shall not be deemed to come within the Class of Matters of a local or private Nature comprised in the Enumeration of the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces.

 

 

                   92. In each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subjects next herein-after enumerated; that is to say,--

 

                                                                   . . .

 

10. Local Works and Undertakings other than such as are of the following Classes:--

 

                                                                   . . .

 

c. Such Works as, although wholly situate within the Province, are before or after their Execution declared by the Parliament of Canada to be for the general Advantage of Canada or for the Advantage of Two or more of the Provinces.

 

                                                                   . . .

 

13. Property and Civil Rights in the Province.

 

                                                                   . . .

 

16. Generally all Matters of a merely local or private Nature in the Province.

 

 

                   92A. (1) In each province, the legislature may exclusively make laws in relation to

 

                                                                   . . .

 

(c) development, conservation and management of sites and facilities in the province for the generation and production of electrical energy.

 

                                                                   . . .

 

                   (6) Nothing in subsections (1) to (5) derogates from any powers or rights that a legislature or government of a province had immediately before the coming into force of this section.

 

III.               Judgments Below

 

Ontario Labour Relations Board

 

                   The OLRB held that by virtue of ss. 92(10) (c) and 91(29)  of the Constitution Act, 1867 , Parliament has exclusive legislative authority over local works it declares to be to the general advantage of Canada.  Such a declaration, applicable to Ontario Hydro's nuclear generating stations, had been made in s. 18 of the Atomic Energy Control Act.  Counsel for Ontario Hydro argued that Ontario Hydro was an undertaking and not a work constructed for any of the purposes set out in s. 18 .  The OLRB held that a work used by and forming part of an undertaking can be the object of a declaration under s. 92(10) (c).  When Parliament makes such a declaration, its jurisdiction over the work extends to the regulation of the use and management of the work forming part of the undertaking (relying on The King v. Eastern Terminal Elevator Co., [1925] S.C.R. 434).

 

                   The OLRB rejected Ontario Hydro's argument that Parliament only has jurisdiction to make laws with respect to matters of national interest in a work declared to be to the general advantage of Canada:  Ontario Hydro's position on this matter was inconsistent with the preamble to s. 91  of the Constitution Act, 1867  which expressly gives Parliament legislative jurisdiction to all matters in the enumerated classes of subjects, including s. 91(29) .  Ontario Hydro argued that s. 92A  excludes federal jurisdiction over labour relations because such jurisdiction would conflict with the power of the provinces to "manage" electrical generating facilities:  the OLRB held that s. 92A  has no special place in the Constitution Act, 1867  and accordingly must be read in light of s. 91  which gives Parliament exclusive jurisdiction over matters coming within the classes of subjects enumerated in s. 91  "notwithstanding anything in this Act".

 

                   The OLRB held that the declaration made in s. 18 of the Atomic Energy Control Act was valid and proper with respect to Ontario Hydro's nuclear generating facilities.  There was no basis for Ontario Hydro's argument that s. 92(10) (c) declarations cannot extend to matters within s. 92A(1) , or that a declaration may only be made with respect to matters falling solely within s. 92(10) (c):  given the wide scope of matters within s. 92 , such as property and civil rights, this argument would totally neutralize the s. 92(10) (c) declaratory power.  Further, nothing in s. 92A(1)  repealed or neutralized the declaration in s. 18 of the Atomic Energy Control Act.  Accordingly, the federal government had authority to legislate with respect to Ontario Hydro's labour relations with persons employed on or in connection with the nuclear generating facilities.  The OLRB declared that it did not have jurisdiction to deal with the Society's application for certification since the proposed unit included employees who fell within federal labour law jurisdiction.

 

Divisional Court (per Steele, Montgomery and White JJ.)

 

                   The Divisional Court held that the special provision for electrical generating facilities in s. 92A  removed those facilities from the category of works contemplated by s. 92(10) (c).  "Such Works" in s. 92(10) (c) can only refer to local works and undertakings contemplated to be within s. 92(10) .  This expression cannot refer to a power specifically granted to a province in s. 92A Section 92A(1) (c) was enacted after the Atomic Energy Control Act and Parliament must be deemed to have known that it was placing the generation and production of electrical energy within the jurisdiction of the provinces.  Therefore, s. 18 of the Atomic Energy Control Act is inapplicable in so far as it purports to declare Ontario Hydro's works to be totally for the general advantage of Canada.

 

                   The Divisional Court held that Parliament had the jurisdiction to enact the Atomic Energy Control Act in the national interest under the peace, order and good government power ("p.o.g.g. power") in the opening words of s. 91  of the Constitution Act, 1867 .  Parliament's p.o.g.g. power is residuary in nature and should be read together with the specific power in s. 92A(1) (c) not to exclude provincial jurisdiction except where absolutely necessary.  Even where there is a conflict between s. 91  and s. 92 , the doctrine of mutual modification holds that the general power should be narrowed to exclude the narrower class of subjects.

 

                   The Divisional Court also held that, under the double aspect doctrine, the federal p.o.g.g. power does not necessarily exclude provincial power over labour relations.  The pith and substance of the Atomic Energy Control Act and the regulations passed under it, is not the management or labour relations of a facility.  Section 92A(1) (c) gives the provinces the exclusive power to manage facilities for electrical energy; the provinces therefore have the power to legislate with respect to labour relations at those facilities.  The Atomic Energy Control Act imposes aspects of Parliament's concerns that must be obeyed with respect to the works but this does not totally exclude provincial jurisdiction where the core undertaking is clearly provincial.  The Divisional Court distinguished the decision of this Court in Bell Canada v. Quebec (Commission de la santé et de la sécurité du travail), [1988] 1 S.C.R. 749 ("Bell Canada"), since that case concerned a federal undertaking.  Accordingly, under the double aspect doctrine, provincial labour legislation is applicable to the employees who work at the sites in question.

 

                   The Divisional Court held that Ontario Hydro is not a federal work or undertaking; therefore the Canada Labour Code  does not apply according to the scope of the statute set out in s. 4 .  Further, Ontario Hydro is a "provincial public policy instrument" to which the statute should not be interpreted to apply.  Only if Parliament validly amended the Atomic Energy Control Act to provide that it was in the national interest that all labour relations at nuclear generating sites be governed by federal legislation would provincial labour legislation be supplanted.  The Divisional Court noted finally that the licence for the Bruce nuclear facility, which is representative of the licences issued to all of Ontario Hydro's nuclear generating sites, indicates that all general laws of the province are applicable to the facility, subject to the conditions of the licence.  The Ontario labour legislation is a law of general application in the province and can stand together with the federal requirements for health, safety and security.

 

                   The Divisional Court ordered that the decision of the OLRB be quashed and directed the OLRB to deal with the Society's certification application.

 

Ontario Court of Appeal

 

                   Tarnopolsky J.A. (Lacourcière J.A. concurring)

 

                   Tarnopolsky J.A. indicated that there were two issues before the court.  First, did the enactment of s. 92A  remove electrical facilities from the category of works contemplated by s. 92(10)  of the Constitution Act, 1867 , rendering the declaration in s. 18 of the Atomic Energy Control Act inapplicable to Ontario Hydro's nuclear generating facilities?  Second, even if s. 18  does apply to Ontario Hydro's nuclear generating facilities, does Parliament's power extend to the labour relations of the employees of those facilities?

 

                   With respect to the first issue, Tarnopolsky J.A. held that the provincial legislative powers in s. 92A  cannot be exercised to the exclusion of other federal powers.  This view was supported by academic commentators and the pertinent proceedings of the Special Joint Committee on the Constitution.  The Divisional Court erred in not distinguishing between activities concerning facilities for the generation of electricity (i.e., development, conservation and management) and the character or nature of those facilities (i.e., being local works).  The wording of s. 92A  fails to support the conclusion that electrical facilities were removed from the category of works contemplated by s. 92(10) (c).

 

                   Further, Tarnopolsky J.A. held that to accept that the federal declaratory power is an exception only to the provincial legislative authority over local works and undertakings in s. 92(10)  would result in an absurdity.  The jurisdictional basis of a matter over which a province has legislative competence may arise from any number of heads of power; there is no authority for the claim that legislative competence over a particular subject matter must be founded on or restricted to one head of provincial power.  Tarnopolsky J.A. continued (at p. 760):

 

. . . I would endorse the finding of the OLRB that, if the declaratory power refers to local works or undertakings only, then s. 92  {PP} 16 -- "Generally all Matters of a merely local or private Nature in the Province" -- would neutralize Parliament's power to declare anything to be for the general advantage of Canada, for undoubtedly a local work could reasonably be found to be a matter of a local or private nature in the province.  It is that absurdity which must be avoided. [Emphasis in original.]

 

                   Section 92A  must be read in light of s. 91  using the doctrine of mutual modification, i.e., the provincial power in s. 92A  should not be read to exclude the federal power in s. 92(10) (c) and s. 91(29)  where the two powers can co-exist.  Moreover, Parliament may touch on those classes of subjects assigned exclusively to the provinces under a valid exercise of its legislative powers.

 

                   Works or undertakings declared to be to the general advantage of Canada are withdrawn from provincial legislative competence through the operation of s. 92(10) (c) and s. 91(29) .  Since there is nothing to indicate that works within s. 92A  were removed from the class of works in s. 92(10) , there is nothing to preclude the declaration in s. 18 of the Atomic Energy Control Act from applying to Ontario Hydro's nuclear facilities.  The declaration has the effect of granting Parliament control over these works.  That control includes the power to regulate the operation of the work, including the employment of persons employed on such works (in this regard, Tarnopolsky J.A. relied on the decision of this Court in Bell Canada, supra).

 

                   Even if s. 92A  removed electrical generating works from s. 92(10) , Parliament could validly exercise jurisdiction over Ontario Hydro's nuclear generating facilities using its p.o.g.g. power from the opening words of s. 91 Section 92A  does not detract from the scope of Parliament's authority under the p.o.g.g. power.  Tarnopolsky J.A. held that "the regulation of atomic energy, as a matter of national concern, must include the labour relations of Ontario Hydro's nuclear facilities, in spite of the practical difficulties that may be encountered as a result of this decision" (p. 764).

 

                   Tarnopolsky J.A. concluded (at p. 768):

 

                   In conclusion, Ontario Hydro's nuclear facilities are works that, although wholly situate within a province, are declared by Parliament to be for the general advantage of Canada within the meaning of s. 2(h) of the Labour Code.  As indicated above, by s. 4  Parliament has expressly made the Labour Code applicable to all employees who are employed upon or in connection with such works as defined in s. 2.  Ontario Hydro's nuclear workers, accordingly, must be governed by the federal Labour Code.

 

                          Galligan J.A., dissenting

 

                   Galligan J.A. felt that, according to the testimony of Arvo Niitenberg, Ontario Hydro's Senior Vice-President of Operations, the division of labour relations between two separate jurisdictions would cause Ontario Hydro serious practical difficulties.  This result was to be avoided unless the Constitution required it.  Galligan J.A. held that it was not necessary to decide whether federal jurisdiction over the nuclear generating sites arose from the federal declaratory power or from the federal p.o.g.g. power.  He set out the issue in the case as follows (at p. 771):

 

                   Because Parliament has exclusive authority to regulate atomic energy it is not contested that it has power to regulate Hydro's five nuclear generating sites.  The issue is whether, because of that authority it also has power, to the exclusion of the province, to regulate Hydro's labour relations with its employees working on or in connection with those generating stations.

 

                   Galligan J.A. distinguished this Court's trilogy on the interrelation of provincial statutes of general application with federal statutes regulating enterprises which come within Parliament's exclusive legislative sphere (Bell Canada, supra; Canadian National Railway Co. v. Courtois, [1988] 1 S.C.R. 868, and Alltrans Express Ltd. v. British Columbia (Workers' Compensation Board), [1988] 1 S.C.R. 897) on the ground that the undertakings in those cases were truly federal while Ontario Hydro is a provincial undertaking:  "Only part of one of its many activities is within the federal sphere of legislative competence" (p. 772).  He continued (at p. 773):

 

                   I think the principle to be drawn from the treatment of this subject in the trilogy is that a class of subject-matter within the exclusive legislative competence of Parliament will be held to include labour relations if labour relations is an integral part, an essential part or a vital part, of the exercise of that jurisdiction.  To apply that principle to this case, I think that, if labour relations is an integral, essential or vital part of the power to regulate atomic energy at Hydro's nuclear generating sites, then the exception to the general rule of provincial power over labour relations would apply.

 

                   Galligan J.A. concluded that no evidence had been led to demonstrate that labour relations were such an integral part of the regulation of atomic energy.  Indeed, since the federal government had not controlled labour relations at Ontario Hydro's nuclear generating sites to date, there was evidence that labour relations were not such an integral part of the regulation of atomic energy.  For the same reason that labour relations of a federal undertaking must be regulated federally, the labour relations of a provincial undertaking should be regulated provincially.  Therefore there was no reason to apply the exception to the general rule that labour relations fall within the exclusive jurisdiction of the provincial legislatures:  ". . . if the provincial law does not bear on the specifically federal nature of the federal exercise of power the rule excluding application of the provincial law does not apply" (pp. 774-75).

 

                   The doctrine of federal paramountcy does not apply where there is no conflict between the two statutes (Commission de transport de la Communauté urbaine de Québec v. Canada (National Battlefields Commission), [1990] 2 S.C.R. 838).  Galligan J.A. was disinclined to interpret the statutes so as to create a conflict where they had been applied together without conflict for 25 years.  While the licences issued by the AECB to Ontario Hydro's nuclear generating facilities contained provisions relating to the staffing of those stations, there was no demonstrated conflict between these provisions and Ontario Hydro's labour relations with its employees.  Galligan J.A. would have dismissed the appeal and affirmed the order of the Divisional Court.

 

IV.              The Constitutional Question

 

Does the Labour Relations Act of Ontario, R.S.O. 1980, c. 228 [now R.S.O. 1990, c. L.2], or the Canada Labour Code, R.S.C., 1985, c. L-2 , constitutionally apply to the matter of labour relations between Ontario Hydro and those of its employees who are employed in Ontario Hydro's nuclear electrical generating stations which have been declared to be for the general advantage of Canada under s. 18 of the Atomic Energy Control Act, R.S.C., 1985, c. A-16 ?

 

V.                Issues

 

                   The constitutional question raises the following issues:

 

1. What are the nature and effect of the federal declaratory power?

 

2.May Parliament validly make declarations under s. 92(10) (c) of the Constitution Act, 1867  with respect to nuclear electrical generating stations over which the provinces enjoy jurisdiction in the areas of development, conservation and management by virtue of s. 92A(1) (c) of the Constitution Act, 1867 ?

 

3.Does a valid declaration by Parliament under s. 92(10) (c) of the Constitution Act, 1867  over nuclear electrical generating stations give Parliament jurisdiction over the labour relations of employees employed in those stations?

 

4.If Parliament's jurisdiction over nuclear electrical generating stations derives solely from the peace, order and good government clause of s. 91  of the Constitution Act, 1867 , does that jurisdiction include the labour relations of employees employed in those stations?

 

5.Is Ontario Hydro immune from the operation of the Canada Labour Code  by virtue of interjurisdictional Crown immunity?

 

VI.              Analysis

 

1. What are the nature and effect of the federal declaratory power?

 

                   (a) History of the Declaratory Power

 

                   The first appearance of a declaratory power that was to be given to the federal government was in the final Resolutions of the Quebec Conference of 1864.  The power was listed with the other specific heads of power of the federal government and was worded as follows:

 

                   29.  The General Parliament shall have power to make Laws for the peace, welfare and good Government of the Federated Provinces (saving the Sovereignty of England), and especially Laws respecting the following subjects: --

 

                                                                   . . .

 

11.All such works as shall, although lying wholly within any Province, be specially declared by the Acts authorizing them to be for the general advantage.

 

In the final version of the Constitution Act, 1867 , the declaratory power appeared as an exception to the provincial power over local works and undertakings:

 

                   92. In each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subjects next herein-after enumerated; that is to say,--

 

. . .

 

10. Local Works and Undertakings other than such as are of the following Classes:--

 

                                                                    ...

 

c. Such Works as, although wholly situate within the Province, are before or after their Execution declared by the Parliament of Canada to be for the general Advantage of Canada or for the Advantage of Two or more of the Provinces.

 

                   In its early years, the declaratory power was used almost exclusively in relation to local railways.  The federal government began to make declarations regarding electricity companies as well as telegraph and other communications companies in the 1880s.  The frequency of declarations, which was at its peak in the late 19th century, began to drop off in the early 20th century.  The declaration over atomic energy at issue in this case was passed in 1946.  Since the 1960s, the federal government has used the declaratory power only twice although old declarations are still reenacted along with the originating legislation (see P. W. Hogg, Constitutional Law of Canada (3rd ed. 1992), vol. 1, at pp. 22-15 to 22-16, and A. Lajoie, Le pouvoir déclaratoire du Parlement (1969), at pp. 123-51).

 

                   (b) Nature of the Declaratory Power

 

                   The federal declaratory power, which is found in the combined operation of s. 92(10) (c) and s. 91(29)  of the Constitution Act, 1867 , is unique in the constitutional division of powers.  As Duff J. wrote for this Court in Reference re Waters and Water-Powers, [1929] S.C.R. 200, at p. 220:

 

                   The authority created by s. 92  (10c) is of a most unusual nature.  It is an authority given to the Dominion Parliament to clothe itself with jurisdiction -- exclusive jurisdiction -- in respect of subjects over which, in the absence of such action by Parliament, exclusive control is, and would remain vested in the provinces.  Parliament is empowered to withdraw from that control matters coming within such subjects, and to assume jurisdiction itself.  It wields an authority which enables it, in effect, to rearrange the distribution of legislative powers effected directly by the Act, and, in some views of the enactment, to bring about changes of the most radical import, in that distribution; and the basis and condition of its action must be the decision by Parliament that the "work or undertaking" or class of works or undertakings affected by that action is "for the general advantage of Canada," or of two or more of the provinces; which decision must be evidenced and authenticated by a solemn declaration, in that sense, by Parliament itself.

 

                   Professor Hogg, supra, has also noted the exceptional nature of the federal declaratory power (at p. 22-17):

 

[T]he federal Parliament's power under s. 92(10) (c) is in conflict with classical principles of federalism because it enables the federal Parliament, by its own unilateral act, to increase its own powers and diminish those of the provinces.

 

                   Former Chief Justice Bora Laskin referred to the federal declaratory power as "extraordinary" (see Laskin's Canadian Constitutional Law (5th ed. 1986), vol. 1, at p. 627).  The uniqueness of the federal declaratory power lies in Parliament's ability to decide to assume jurisdiction over a work which would normally be within exclusive provincial jurisdiction.

 

                   How is this extraordinary power to be exercised by the federal Parliament?  First, Parliament must make an explicit declaration that the work is for the general advantage of Canada, or of two or more provinces.  Whether or not a work is for the general advantage of Canada is a policy decision of Parliament which will not normally be reviewed by the courts.

 

                   In The Queen v. Thumlert (1959), 20 D.L.R. (2d) 335, the Alberta Court of Appeal indicated that the doctrine of colourability provides a limitation to the exercise of the declaratory power.  However, as one commentator has argued:

 

[B]ecause of the very nature of the declaratory power, it is doubtful whether the doctrine of colourability would apply to it.  The very purpose of s. 92(10) (c) is to extend federal jurisdiction into what otherwise would be the provincial field.  Therefore the mere fact that by the declaration the federal Parliament intends to vest in itself jurisdiction over works which otherwise would be within provincial jurisdiction cannot itself be cause for complaint . . . .

 

                   (K. Hanssen, "The Federal Declaratory Power Under the British North America Act" (1968-69), 3 Man. L.J. 87, at p. 103.)

 

                   Hanssen suggested that the only limit on Parliament's exercise of the declaratory power would be a narrow version of colourability, namely proof that Parliament had acted in bad faith in making a declaration.  However, the Court does not need to decide for the purposes of the present appeal whether or not some form of the doctrine of colourability provides a limit on the federal declaratory power.

 

                   What may Parliament make the subject of a declaration under s. 92(10) (c) of the Constitution Act, 1867 Section 92(10) (c) refers to "Works" which stands in contrast to the reference in s. 92(10) (a) to "Works and Undertakings".  This distinction would appear on its face to limit the federal declaratory power to works or tangible things and to exclude undertakings from the operation of the power.  However, Parliament has on occasion declared undertakings to be works for the general advantage of Canada.  This Court upheld one such declaration in Quebec Railway Light & Power Co. v. Town of Beauport, [1945] S.C.R. 16, which concerned a federal declaration that the undertaking of a company was a work to the general advantage of Canada.  Both Rand J. and Hudson J. (who dissented in the result) recognized the validity of the declaration without any explicit discussion thereof.  Rinfret J. was of the opinion that the declaration was meant to bring "the whole of the works of the company" within the declaration (p. 24).  Davis J., who dissented in the result of the case, agreed with Rinfret J. and wrote as follows (at p. 29):

 

It seems to me that the word "undertaking" there used involves the totality of the works of the company and that the effect of the statute was that they were declared to be for the general advantage of Canada.  Such a declaration was within the competence of the Dominion Parliament when the meaning and scope of the statute is fairly construed.

 

Kerwin J. held at p. 32 that "no more extended meaning than the word `works' [in s. 92(10) (c)] bears on its proper construction may be ascribed to the word `undertaking' in section 1 of the 1895 Act".

 

                   The line of reasoning that "undertaking" in a federal declaration refers only to the totality of a company's works is thrown into doubt by other federal declarations, such as that found in s. 35  of the Cape Breton Development Corporation Act, R.S.C., 1985, c. C-25 , which declared the "works and undertakings operated or carried on" by various coal mining and railway companies on Cape Breton Island to be works for the general advantage of Canada.  Decisions of this Court such as Commission du salaire minimum v. Bell Telephone Co. of Canada, [1966] S.C.R. 767, have assumed that the federal government can declare undertakings as undertakings to be works for the general advantage of Canada.

 

                   Thus, Parliament may validly declare an undertaking to be a work for the general advantage of Canada.  The outer limit of Parliament's power to declare undertakings to be works for the general advantage of Canada is that the undertaking must be linked to a work.  As Rand J. stated in his partially dissenting opinion in Reference re Industrial Relations and Disputes Investigation Act, [1955] S.C.R. 529, at p. 553, "Undertakings, existing without works, do not appear in 92(10)(c) and cannot be the subject of such a declaration".

 

                   In my view, "undertaking" refers to the whole of the enterprise within which a work or works is or are situated.  In this case, the undertaking is Ontario Hydro.  The undertaking is to be distinguished from the set of integrated activities related directly to the work (here, the production of electricity using nuclear power) and from the work itself (the electrical nuclear generating facilities).  In some respects, all undertakings for the purposes of s. 92(10) (c) involve works but not all works may involve undertakings.

 

                   As I discussed above, the declaratory power has been used most often with respect to local railways.  Other typical subjects of federal declarations include canals, bridges, harbours, telephones, grain elevators and factories of various kinds.  Parliament has also made declarations with respect to national battlefields.  As Professor Hogg, supra, has noted (at p. 22-18):

 

It appears, however, that the federal government and Parliament are sensitive to the anomalous character of the power and are now inclined to use the power only sparingly.  It has been used very rarely in recent times.

 

                   (c) The Effect of a Declaration

 

                   Having briefly considered the background to and nature of the federal declaratory power and how that power is exercised, one must deal with the most obvious question as to the effect of a declaration that a work is to the general advantage of Canada.  To begin with, the Court has rejected the proposition that Parliament gains jurisdiction over no more than the physical shell of a work when it makes a declaration that a work is for the general advantage of Canada.  In several cases involving grain elevators, the Court has held that jurisdiction over declared works includes jurisdiction to regulate the operations of declared works.  One example of this is Chamney v. The Queen, [1975] 2 S.C.R. 151, where Martland J. stated for the Court (at p. 159):

 

                   Having concluded that the premises in question here are works declared to be for the general advantage of Canada, it is clear that Parliament could control the quantities of grain which could be received into an elevator and could enact s. 16(2)  of the Canadian Wheat Board Act  as a means of exercising control over the work and that the appellant could properly be convicted of an offence under that subsection.

 

                   Laskin, supra, has described federal jurisdiction over declared works as follows (at pp. 628-29):

 

[T]he result of a declaration of a "work" to be for the general advantage of Canada must surely be to bring within federal authority not only the physical shell or facility but also the integrated activity carried on therein; in other words, the declaration operates on the work in its functional character.

 

                   Contrary to the holding of Desjardins J.A. in her concurring reasons in Shur Gain Division, Canada Packers Inc. v. National Automobile, Aerospace and Agricultural Implement Workers Union of Canada, [1992] 2 F.C. 3, at p. 34, Parliament's legislative jurisdiction over a declared work is not "plenary".  As Beetz J. said for the Court in Bell Canada, supra, at p. 762:

 

[W]orks, such as federal railways, things, such as land reserved for Indians, and persons, such as Indians, who are within the special and exclusive jurisdiction of Parliament, are still subject to provincial statutes that are general in their application, whether municipal legislation, legislation on adoption, hunting or the distribution of family property, provided however that the application of these provincial laws does not bear upon those subjects in what makes them specifically of federal jurisdiction  . . . .

 

                   The Court reaffirmed this principle in Commission de transport de la Communauté urbaine de Québec v. Canada (National Battlefields Commission), supra, where Gonthier J. wrote for the Court (at p. 853):

 

The immunity pertaining to federal status applies to things or persons falling within federal jurisdiction, some specifically federal aspects of which would be affected by provincial legislation.  This is so because these specifically federal aspects are an integral part of federal jurisdiction over such things or persons and this jurisdiction is meant to be exclusive.

 

                   It is the fundamental federal responsibility for a thing or person that determines its specifically federal aspects, those which form an integral part of the exclusive federal jurisdiction over that thing or person.

 

                   As a result, when the federal government makes a declaration under s. 92(10) (c) of the Constitution Act, 1867 , that a work is to the general advantage of Canada, Parliament obtains jurisdiction not only over the physical parts of the work but also over those aspects of the operation of the work which makes the work specifically of federal jurisdiction, i.e., those aspects of the work which make the work one for the general advantage of Canada.

 

                   This limit on Parliament's jurisdiction over a declared work is consistent with the interpretation of the declaratory power as a "narrow and distinct" power in order that the power not seriously encroach on provincial jurisdiction (per Dickson C.J. in General Motors of Canada Ltd. v. City National Leasing, [1989] 1 S.C.R. 641, at p. 671).

 

                   This limit is also consistent with the traditional approach to division of powers questions which has been one of balancing federal and provincial powers through the application of doctrines such as mutual modification, double aspect and pith and substance.  The Constitution Act, 1867  set up a federalist system of government for Canada and should be interpreted so as not to allow the powers of either Parliament or the provincial legislatures to subsume the powers of the other.  As Henri Brun and Guy Tremblay have written:

 

                   [translation] The history of the birth of the federation, the first "whereas" in the preamble to the Constitution Act, 1867  and, in particular, the usually exclusive division of powers contained therein show clearly that the purpose of this Act was to establish a federal system.

 

                   That is why, in numerous decisions, the courts have tried to protect the federal foundations of the Canadian system.  They have sought the maintenance of a certain balance between the federal government and the provinces.

 

                   (Droit constitutionnel (2nd ed. 1990), at p. 402.)

 

                   This Court recognized the primacy of the balance between federal and provincial powers in Reference re Resolution to Amend the Constitution, [1981] 1 S.C.R. 753, where the Court held that a substantial measure of provincial consent was required by convention before the Canadian Constitution could be amended.  The majority held that the reason for the convention was the federal principle (at pp. 905-6):

 

                   The federal principle cannot be reconciled with a state of affairs where the modification of provincial legislative powers could be obtained by the unilateral action of the federal authorities.

 

While the use of the declaratory power is not as dramatic as the unilateral amending of the Constitution, in my view the federal principle should be respected nonetheless.  Parliament's jurisdiction over a declared work must be limited so as to respect the powers of the provincial legislatures but consistent with the appropriate recognition of the federal interests involved.

 

                   Confining Parliament's jurisdiction over declared works within the sphere of those aspects of the work which make the work of federal jurisdiction accords with the jurisprudence on Parliament's other unusual power, the power to legislate for the peace, order and good government of the country found in the preamble to s. 91  of the Constitution Act, 1867 .  The cases concerning the p.o.g.g. power have developed a set of strict criteria which the federal government must meet before it can exercise its residual authority.  This prevents the p.o.g.g. power from being abused to disturb the balance of federalism.  See, for example, the decision of this Court in R. v. Crown Zellerbach Canada Ltd., [1988] 1 S.C.R. 401, which I will discuss below.

 

                   To summarize, the federal declaratory power is unique in that under it, Parliament may decide as a matter of policy to withdraw a work or an undertaking linked to works from what would normally be provincial jurisdiction by declaring the work or undertaking to be a work for the general advantage of Canada, or of two or more provinces.  Parliament's jurisdiction over a declared work is not plenary, but extends only to those aspects of the work which make the work specifically of federal jurisdiction.  Put another way, Parliament obtains exclusive jurisdiction to regulate those aspects of the work that are integral to the federal interest in the work.

 

2.May Parliament validly make declarations under s. 92(10)(c) of the Constitution Act, 1867 with respect to nuclear electrical generating stations over which the provinces enjoy jurisdiction in the areas of development, conservation and management by virtue of s. 92A(1)(c) of the Constitution Act, 1867?

 

                   The parties do not dispute that the combined effect of s. 92(10) (c) and s. 91(29)  of the Constitution Act, 1867  is to give the federal government the power to declare works to be for the general advantage of Canada and to bring those works within the exclusive jurisdiction of Parliament.  Parliament has made an express declaration in s. 18 of the Atomic Energy Control Act that all works and undertakings constructed for the production, use and application of atomic energy are works to the general advantage of Canada.  It is not contested that Ontario Hydro's nuclear electrical generating stations are works which by definition fall within Parliament's declaration.  However, Ontario Hydro and CUPE submit that Parliament's declaration is not valid with respect to nuclear electrical generating stations.

 

                   The argument of Ontario Hydro and CUPE, which was accepted by the Divisional Court, is that where identified types of works (such as electrical generating facilities) are specifically assigned to the exclusive jurisdiction of the provinces, the federal declaratory power cannot operate with respect to those works for two reasons.  First, the federal declaratory power is authorized only with respect to local works under s. 92(10)  which does not include local works which fall under another head of s. 92 .  Second, the federal declaratory power is a general power which must be read narrowly to exclude those classes of subjects which are assigned exclusively to the provincial legislatures.

 

                   With respect to the first reason, the Ontario Court of Appeal rejected Ontario Hydro and CUPE's argument that the declaratory power applies only to works which do not fall within the terms of any other subject matter enumerated in s. 92 .  The basis on which the Ontario Court of Appeal rejected this argument was that it would result in an absurdity since, for example, s. 92(16)  gives the provinces exclusive jurisdiction over all matters of a merely local or private nature in the province.  This would mean that the declaratory power could never be exercised because s. 92(16)  would prohibit its exercise.  I find the response of the Court of Appeal persuasive on this point.  I would also point out that the argument of Ontario Hydro and CUPE depends on construing the various heads of power as mutually exclusive watertight compartments and on slotting every matter into one and only one head of power.  The watertight compartments approach to the interpretation of ss. 91  and 92  of the Constitution Act, 1867  has often been rejected by the courts, and rightly so (see, for example, Multiple Access Ltd. v. McCutcheon, [1982] 2 S.C.R. 161, at pp. 180-81).

 

                   Ontario Hydro refined its argument before this Court to claim in the alternative that the federal declaratory power applies only to works which do not fall within a category specifically assigned to the provinces, such as electrical generating facilities under s. 92A(1)(c).  However, this argument has no merit since under s. 92A(1)(c), it is not the works themselves which are given to provincial jurisdiction, but the conservation, development and management of those works.  As the Court of Appeal held, it is an error not to distinguish between activities concerning facilities for the generation of electricity (i.e., development, conservation and management) and the character or nature of those facilities (i.e., being works).  It is still open to the federal government to make a declaration that a work of a type specifically mentioned in s. 92A(1)(c) is to the general advantage of Canada, bringing the work under federal jurisdiction.  The question, which will be addressed below, is what sort of jurisdiction does the federal government gain over a work mentioned in s. 92A(1)(c) through the operation of such a declaration, given that the provinces have explicitly been assigned the exclusive jurisdiction over the management of those works.

 

                   As I mentioned above, Ontario Hydro and CUPE argued that the second reason why works which are specifically identified in s. 92  are not subject to the declaratory power is that the federal declaratory power is a general power which must be read narrowly to exclude those classes of subjects assigned exclusively to the provinces.  This argument refers to the interpretative process known as the doctrine of mutual modification which was established by the Privy Council in Citizens Insurance Co. of Canada v. Parsons (1881), 7 App. Cas. 96, where the Privy Council said at pp. 108-9:

 

With regard to certain classes of subjects, therefore, generally described in sect. 91, legislative power may reside as to some matters falling within the general description of these subjects in the legislatures of the provinces.  In these cases it is the duty of the Courts, however difficult it may be, to ascertain in what degree, and to what extent, authority to deal with matters falling within these classes of subjects exists in each legislature, and to define in the particular case before them the limits of their respective powers.  It could not have been the intention that a conflict should exist; and, in order to prevent such a result, the two sections must be read together, and the language of one interpreted, and, where necessary, modified, by that of the other.  In this way it may, in most cases, be found possible to arrive at a reasonable and practical construction of the language of the sections, so as to reconcile the respective powers they contain, and give effect to all of them.  In performing this difficult duty, it will be a wise course for those on whom it is thrown, to decide each case which arises as best they can, without entering more largely upon an interpretation of the statute than is necessary for the decision of the particular question in hand.

 

                   This method of balancing the provisions in ss. 91  and 92  of the Constitution Act, 1867  was adopted by this Court in Reference re Waters and Water-Powers, supra, where Duff J. wrote for the Court (at p. 216):

 

                   There is nothing more clearly settled than the proposition that in construing section 91 , its provisions must be read in light of the enactments of section 92 , and of the other sections of the Act, and that where necessary, the prima facie scope of the language may be modified to give effect to the Act as a whole.

 

                   However, as already mentioned, since the works themselves have not been specifically assigned to the provinces under s. 92A(1)(c), there is no apparent conflict between the federal declaratory power and the provincial jurisdiction over management which would require a reading down of the federal declaratory power.  Further, given that the very nature of the declaratory power is to enable Parliament to assume jurisdiction over a work which would otherwise be within provincial jurisdiction, it is arguable that the doctrine of mutual modification is of little application to the determination of what works are subject to the federal declaratory power.

 

                   Despite the lack of conflict between the federal declaratory power and the provincial power over management, Ontario Hydro argued that Parliament gave up its declaratory power over nuclear electrical generating stations when s. 92A  was added to the Constitution Act, 1867  in 1982.  I note that Ontario Hydro, as well as the Ontario Court of Appeal, placed some emphasis on what Parliament must have intended when s. 92A  was ratified as part of the Constitution Act, 1867 .  In my view, CUPE is correct in indicating that Tarnopolsky J.A. should not have relied so heavily on the Minutes of the Special Joint Committee on the Constitution in concluding that s. 92A  was not meant to diminish the federal declaratory power.  However, neither can Ontario Hydro claim that Parliament must be deemed to have known that it was neutralizing its past declarations or its future declaratory power with respect to nuclear electrical generating stations.

 

                   This Court has indicated that the Minutes of the Special Joint Committee on the Constitution carry limited weight in the arena of constitutional interpretation (see Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, at p. 509, where Lamer J., as he then was, held with respect to interpreting the Canadian Charter of Rights and Freedoms  that "it would in my view be erroneous to give these materials anything but minimal weight").  This Court has never adopted the practice more prevalent in the United States of basing constitutional interpretation on the original intentions of the framers of the Constitution.  Rather, in Canada, constitutional interpretation rests on giving a purposive interpretation to the wording of the sections.  As Professor Hogg notes in "The Charter of Rights  and American Theories of Interpretation" (1987), 25 Osgoode Hall L.J. 87, at pp. 97-98:

 

                   The principle of progressive interpretation of the constitution is as firmly established in Canada as is the principle of minimal reliance on legislative history.  The Supreme Court has repeatedly asserted that the language of the constitution is not to be frozen in the sense in which it would have been understood in 1867.  Rather, the constitution is to be regarded as "a living tree capable of growth and expansion within its natural limits".

 

                   While the wording of s. 92A  is unambiguous that management of electrical generating facilities is within the exclusive jurisdiction of the province, the section does not indicate that any special reservation from the federal declaratory power was made.  In my opinion, Parliament did not give up its declaratory power over nuclear electrical generating stations when s. 92A  of the Constitution Act, 1867  was added to the Constitution in 1982.

 

                   I would add that these conclusions accord with academic writings on s. 92A  which have indicated that the resource amendment, as the section is called, increased provincial power with respect to the raising revenues from resources and to regulating the development and production of resources without diminishing Parliament's pre-existing powers.  See R. D. Cairns, M. A. Chandler and W. D. Moull, "Constitutional Change and the Private Sector:  The Case of the Resource Amendment" (1986), 24 Osgoode Hall L.J. 299, at p. 300; and W. D. Moull, "The Legal Effect of the Resource Amendment -- What's New in Section 92A ", in J. P. Meekison, R. J. Romanow and W. D. Moull, Origins and Meaning of Section 92A :  The 1982 Constitutional Amendment on Resources (1985), 33, at pp. 53-54.

 

                   As I noted above, the scope of federal jurisdiction over the works it makes subject to declarations is not absolute in the context of traditional interpretations of federalism and the declaratory power.  Therefore, Ontario Hydro's exhortation that this Court must, by removing certain classes of works from the ambit of the declaratory power, stand firm against the onslaught of federal gutting of all provincial power through the declaratory power loses its force.

 

                   The declaration in s. 18 of the Atomic Energy Control Act is therefore valid with respect to Ontario Hydro's nuclear electrical generating stations which are works within the definition of that section.  This declaration brought Ontario Hydro's nuclear electrical generating stations as works within the jurisdiction of Parliament which, according to the opening words of s. 91  of the Constitution Act, 1867 , is exclusive jurisdiction.  The next question to be addressed is whether or not Parliament's exclusive jurisdiction over Ontario Hydro's nuclear generating facilities as works includes the labour relations of employees employed in those stations.

 

3.Does a valid declaration by Parliament under s. 92(10)(c) of the Constitution Act, 1867 over nuclear electrical generating stations give Parliament jurisdiction over the labour relations of employees employed in those stations?

 

                   To answer this question, one should begin with the proposition that, generally speaking, labour relations are a matter falling under the provincial jurisdiction over property and civil rights found in s. 92(13)  of the Constitution Act, 1867 .  This was the conclusion of the Privy Council in Toronto Electric Commissioners v. Snider, [1925] A.C. 396, when they struck down the federal Industrial Disputes Investigation Act, 1907, S.C. 1907, c. 20, which purported to regulate industrial disputes in the mining industry as well as public utilities.

 

                   Beginning with the decision of the Court in Reference re Industrial Relations and Disputes Investigation Act, supra, there came to be recognized a principle that, despite jurisdiction over labour relations being normally a matter under provincial jurisdiction, where federal undertakings were concerned Parliament obtained legislative authority over labour relations.  The rationale behind this principle is that labour relations are an integral part of an undertaking and Parliament cannot effectively regulate an undertaking without control over labour relations.  Martland J. held for the Court in Commission du salaire minimum v. Bell Telephone Co. of Canada, supra, at p. 772:

 

                   In my opinion all matters which are a vital part of the operation of an interprovincial undertaking as a going concern are matters which are subject to the exclusive legislative control of the federal parliament within s. 91(29) . . . .  Similarly, I feel that the regulation and control of the scale of wages to be paid by an interprovincial undertaking, such as that of the respondent, is a matter for exclusive federal control.

 

                   This theme was taken up in Construction Montcalm Inc. v. Minimum Wage Commission, [1979] 1 S.C.R. 754, which was the first of the cases in this area to articulate the rules by which the sharing of jurisdiction over labour relations is to be achieved.  Construction Montcalm concerned the issue of whether provincial minimum wage laws were applicable to the labour relations of a construction company involved in the construction of Mirabel airport on federal Crown land.  Beetz J. wrote the reasons for the majority and made the following statement of the law (at pp. 768-69):

 

                   The issue must be resolved in the light of established principles the first of which is that Parliament has no authority over labour relations as such nor over the terms of a contract of employment; exclusive provincial competence is the rule:  Toronto Electric Commissioners v. Snider.  By way of exception however, Parliament may assert exclusive jurisdiction over these matters if it is shown that such jurisdiction is an integral part of its primary competence over some other single federal subject:  In re the validity of the Industrial Relations and Disputes Investigation Act (the Stevedoring case).  It follows that primary federal competence over a given subject can prevent the application of provincial law relating to labour relations and the conditions of employment but only if it demonstrated that federal authority over these matters is an integral element of such federal competence; thus, the regulation of wages to be paid by an undertaking, service or business, and the regulation of its labour relations, being related to an integral part of the operation of the undertaking, service or business, are removed from provincial jurisdiction and immune from the effect of provincial law if the undertaking, service or business is a federal one. . . .

 

The Court held that there was nothing specifically federal about Construction Montcalm's business simply because it was building an airport.  Therefore Construction Montcalm was not immune from the operation of provincial laws regarding minimum wages and other conditions of employment.

 

                   The Court reaffirmed the principles of Construction Montcalm in Northern Telecom Ltd. v. Communications Workers of Canada, [1980] 1 S.C.R. 115, where Dickson J. stated since labour relations are integral to the operation of an undertaking, service or business, labour relations will be removed from provincial jurisdiction where federal undertakings are concerned.  Northern Telecom was appealing the decision of the Canada Labour Relations Board certifying the respondent union as the bargaining agent for a unit of Northern Telecom's installation supervisors.  The Court was unable to determine the nature of Northern Telecom's business on the evidence before the Court, and dismissed Northern Telecom's appeal on the ground that Northern Telecom had failed to show reversible error by the Canada Labour Relations Board.

 

                   The most recent series of cases in this area is the trilogy of Bell Canada, Courtois and Alltrans Express, supra.  Again, these decisions emphasized that, where a federal undertaking is concerned, jurisdiction over labour relations will fall to the federal government.  As Beetz J. held in the lead case of the trilogy, Bell Canada, supra, at pp. 761-62:

 

. . . Parliament is vested with exclusive legislative jurisdiction over labour relations and working conditions when that jurisdiction is an integral part of its primary and exclusive jurisdiction over another class of subjects, as is the case with labour relations and working conditions in the federal undertakings covered by ss. 91(29)  and 92(10) a., b. and c. of the Constitution Act, 1867 , that is undertakings such as Alltrans Express Ltd., Canadian National and Bell Canada.

 

                   Although these cases concluded that federal jurisdiction over labour relations automatically flows from federal jurisdiction over an undertaking because labour relations are an integral part of the management of an undertaking, they are not dispositive of the case at bar for two reasons.  First, we are concerned here with works and not undertakings, and the parties have conceded that Ontario Hydro is a provincial undertaking.  Second, the Court must consider the effect of the explicit grant of authority to the provinces in s. 92A  over management of electrical generating facilities.

 

                   However, the cases I have just discussed do provide the general analytic framework within which to determine who has jurisdiction over labour relations at Ontario Hydro's nuclear electrical generating facilities.  The question to be answered is whether or not federal authority over labour relations is integral to the exercise of federal competence over the nuclear electrical generating plants as works declared to be to the general advantage of Canada.  As I see it, answering this question in turn raises three additional questions.  In the first place, what is the character of labour relations, both generally and in the context of nuclear generating of electricity?  Secondly, what is the nature of Parliament's competence over Ontario Hydro's nuclear electrical generating stations?  And finally, what is the effect of s. 92A ?

 

                   As to the first question, I note at the outset that the Ontario and federal labour codes are substantially similar.  Indeed, labour codes across Canada largely correspond to one another.  As George Adams (now Mr. Justice Adams) has noted:

 

Obviously not all provisions are identical; each jurisdiction has included in its own legislation measures which reflect or are designed to respond to the economic, political and cultural forces peculiar to it.  Nevertheless, the over‑all tenor of the legislative enactments throughout Canada remains remarkably similar.

 

(Canadian Labour Law (2nd ed. 1993), at p. 2-94.)

 

                   Canadian labour legislation is concerned with developing procedures for the interaction between management and employees.  Each code governs the rules under which unions are certified as bargaining agents, under which collective agreements are negotiated, and under which strikes and lockouts may proceed legally.  There is usually no prescribed content to collective agreements, except that the agreement be for a definite term and that it contain a method for settling disputes during the life of the agreement.

 

                   Of course, the form that Canadian labour legislation has taken is only one consideration in describing the character of labour relations as a matter for constitutional purposes.  It may be said that labour relations law is generally concerned with the regulation and control of industrial disputes, and not with the unique concerns of individual industries except where industry-specific measures have been enacted.  It is also apparent that Canadian labour law is concerned with the equalization of power between workers and employers to protect workers from the arbitrary exercise of authority.  Professor David M. Beatty has asserted that this latter goal of labour legislation has become paramount in Canadian labour law:

 

Whereas the earlier regulation was directed primarily to securing a balance of interests favourable to employers and consumers, in our own time legislators have been more concerned to promote and protect the interests a worker has in his or her job. Instead of procuring labour peace in the community by legal sanctions of criminal and civil liability, in more recent times it has been purchased by legislation aimed at enhancing the opportunity for self-control.

 

                   Taken together, all the laws we have come to rely upon to regulate and coordinate work activities in our community, can be seen as providing more extensive forms of protection for workers against arbitrary authority.

 

(Putting the Charter  to Work (1987), at p. 41.)

 

                   Thus, there are two primary features to labour relations:  the preservation of industrial peace and the empowerment of workers.  It remains to be seen whether or not these features make the legislative control of labour relations integral to Parliament's effective exercise of its jurisdiction over the nuclear plants of Ontario Hydro.

 

                   The second question is the nature of Parliament's competence over Ontario Hydro's nuclear electrical generating stations.  When Parliament made the declaration in s. 18 of the Atomic Energy Control Act the federal government obtained exclusive jurisdiction over the specifically federal aspects of nuclear electrical generating stations such as those owned and operated by Ontario Hydro.  The preamble to the Atomic Energy Control Act provides a statement of the federal interest in atomic energy.  That statement also provides the parameters of the federal interest in the operations of the nuclear electrical generating facilities since the preamble effectively defines what Parliament determined to be to the general advantage of Canada with respect to the means of production of atomic energy.  I reproduce the preamble for convenience:

 

                   Whereas it is essential in the national interest to make provision for the control and supervision of the development, application and use of atomic energy and to enable Canada to participate effectively in the measures of international control of atomic energy that may hereafter be agreed on;

 

There is nothing in this statement, nor in the rest of the Act, that explicitly or implicitly reveals a federal interest in regulating labour relations.  It is apparent from the Atomic Energy Control Act that the uniquely federal aspect of Ontario Hydro's nuclear electrical generating stations is the fact of nuclear production, with all its attendant safety, health and security concerns.

 

                   The terms of the Atomic Energy Control Act are relevant to determining what Parliament itself determined was integral to the exercise of its jurisdiction over atomic energy.  So too are the terms of the regulatory scheme put in place under the Act.  Nothing in these regulations indicates any interest in labour relations.  Indeed, the mandatory licences for facilities which use nuclear fuel to produce electricity contemplate reporting labour disturbances, but are silent on the need for federal control over labour disputes.  Of course, with respect to Parliament's intent, it may be argued that s. 4  of the Canada Labour Code  proclaims all works declared to the general advantage of Canada to be subject to federal labour laws.  Obviously a more detailed inquiry into the relationship between Parliament's jurisdiction over the works in question and the matter of labour relations must be undertaken.

 

                   This inquiry must proceed in the light of the third question, namely what is the effect on this issue of s. 92A  of the Constitution Act, 1867 .  This section of the Constitution grants to the provinces the exclusive jurisdiction over the "development, conservation and management of sites and facilities in the province for the generation and production of electrical energy" (emphasis added).  Ontario Hydro's nuclear electrical generating facilities fall within this provision of the Constitution Act, 1867 .  Past jurisprudence, such as Bell Canada, supra, has held that regulation of labour relations are integral to the regulation of the management of an undertaking.  This strengthens the presumption of provincial jurisdiction over labour relations in the specific context of this case since Ontario has been given constitutional jurisdiction over the management of works such as Ontario Hydro's nuclear electrical generating sites.

 

                   I emphasize that the province's jurisdiction over the management of the nuclear electrical generating stations does not come by way of a unilateral statutory assertion.  Section 92A  of the Constitution Act, 1867  is an explicit constitutional statement of jurisdiction, and not a self-serving assertion of jurisdiction.  There is no higher authority for the interpretation of the federal declaratory power in the specific circumstances of this case than another provision of the Constitution, namely s. 92A .  The specific constitutional grant to the provinces of jurisdiction over the management of electrical generating stations combines with both the presumption that labour relations fall to the provinces and the fact that Ontario Hydro as a whole is a provincial undertaking to weigh heavily against a finding that the federal government exercises the type of jurisdiction over the nuclear electrical generating plants such that control over labour relations is federal.

 

                   In view of the answers to these three questions, can control of labour relations be said to be integral to the effective exercise of federal jurisdiction over Ontario Hydro's nuclear electrical generating stations?  Unfortunately, the record is almost non-existent on the practical necessity of control by one jurisdiction or the other over labour relations in this particular case.  Provincial labour laws have been applied to some of the employees at one of Ontario Hydro's nuclear plants without any problem for 25 years.  However, that evidence cannot be conclusive in determining constitutional jurisdiction over the labour relations of all the employees employed at the nuclear plants, including the scientific and engineering employees.  The Attorney General of Canada has filed no evidence on this point since its position is that it need not justify its control over labour relations at a federally declared work.  Ontario Hydro filed several affidavits from company officials purporting to address the problems that divided jurisdiction over labour relations within the company would raise.  But again, these affidavits are not dispositive of the issue, particularly since the officials' only complaint is that divided jurisdiction would create uncertainty.

 

                   I am therefore faced with the difficult task of determining jurisdiction over labour relations in this case with the help of very little evidence.  I stated above that the federal interest in Ontario Hydro's nuclear electrical generating stations is the fact of nuclear production and its attendant health and safety concerns.  I also concluded that labour relations legislation is generally concerned with regulating the process of industrial relations and aims at securing both industrial peace and better working conditions for workers.  In the context of labour relations, the safety of workers and of the public appears to be the most significant of the federal government's interests.  Therefore, I have tried to consider those labour relations issues which could impact on the safe operation of the plant.  In my opinion, there are two potential concerns.  First, a collective agreement negotiated under provincial labour legislation might contain provisions which would interfere with the staffing requirements in the licences issued under the Atomic Energy Control Act.  Second, a lockout by Ontario Hydro or other work stoppage under provincial labour law could threaten the safe operation of the plant.  Both of these concerns appear to me to be easily addressed.

 

                   Section 8 of the Atomic Energy Control Regulations, C.R.C. 1978, c. 365, forbids the operation of a nuclear facility except in accordance with a licence issued by the AECB.  The licences issued by the AECB may contain such conditions as the AECB deems necessary "in the interests of health, safety and security" (s. 9(2)).  The licences issued to Ontario Hydro set out a variety of such conditions (see generally pp. 501-9 C.O.A.).  Staffing and organization of the nuclear plants must conform with a specified organization plan that is filed with the AECB.  Any changes to that plan must be reported to the AECB.  The AECB must approve in writing staffing of certain management and supervisory positions.  The licence also specifies minimum staffing levels to ensure the safe operation of the nuclear facility, as well as the training that some employees are required to receive.  Finally, there are requirements that any concerns affecting the safety or security of the plant must be reported to the AECB.

 

                   Any collective agreement provision that contravened these conditions, imposed pursuant to a valid federal regulation over a federal aspect of the nuclear facility, would be null and void because the provisions of the federal licence would be paramount.  Valid federal legislation regarding nuclear plants would be paramount over provincial legislation and collective agreements reached pursuant to provincial legislation, as counsel for Ontario Hydro and the Society conceded in their oral submissions.  The double aspect doctrine applies here.  The federal licence, federal regulations and the Atomic Energy Control Act are in pith and substance directed towards the regulation of the safety of nuclear electrical generating facilities and the effective control of the development and use of reactors.  The Ontario Labour Relations Act is in pith and substance directed towards the regulation of the relations between employees and employers.  The two can operate concurrently, except in cases of outright conflict in which case the provisions of the federal law would apply under the doctrine of paramountcy.

 

                   Further, on a practical level, if a collective agreement led to the violation of the licence conditions, the AECB could shut the plant down by revoking or suspending the licence under which the plant operates (see ss. 27 and 28 of the Atomic Energy Control Regulations).

 

                   The evidence does not disclose that work stoppages represent a significant threat to safety.  The licences under which Ontario Hydro's nuclear electrical generating stations operate seem to allow for work stoppages:  the licences require the reporting of any actual or impending industrial disputes "which could affect the safety or security of the nuclear facility" (Art. A.A. 19, sub-article (v)).  The licences do not prohibit work stoppages.  Further, the affidavit of Ontario Hydro's Senior Vice-President of Operations outlines the practical concerns the company must face in the event of an imminent strike.  This affidavit suggests that a temporary shut-down in the event of a strike, while undesirable, is a response that would preserve public safety in extreme cases.

 

                   As a result, federal control of labour relations does not appear to be integral to the effective regulation of the federal government's concerns with respect to Ontario Hydro's nuclear electrical generating facilities.  Both staffing and work stoppages would be tempered by the conditions of the licences issued by the federal AECB.  Moreover, if specific safety issues were of concern to the federal government, it could legislate with respect to those issues under its valid interest in safety flowing from its jurisdiction over the declared works.  This would result in some trenching on provincial powers over labour relations and the management of electrical generating sites.  However, the necessary trenching on provincial jurisdiction is much more in harmony with the principles of federalism than is the wholesale withdrawing of labour relations from provincial jurisdiction.

 

                   As I discussed above, the conclusion that labour relations is not integral to the exercise of federal jurisdiction is only strengthened by the presence of s. 92A  of the Constitution Act, 1867 .  This section expressly provides for provincial jurisdiction over the management of electrical generating sites, including those fuelled by nuclear reactors.  Provincial control over labour relations appears to me to be integral to provincial jurisdiction over the management of nuclear electrical generating facilities.  Further, as accepted by everyone, Ontario Hydro as a whole is a provincial undertaking.  In this regard, I would adopt the reasoning of Galligan J.A., who dissented in the Ontario Court of Appeal.  In discussing the trilogy of cases headed by Bell Canada, Galligan J.A. stated as follows (at p. 774):

 

                   I made earlier reference to what seems to me to be a fundamental distinction between the situation in the trilogy of cases and the situation in this case.  Those undertakings were truly national while this is undoubtedly provincial.  The general language used by Beetz J. in those cases must be considered in that context and care should be taken so that they are not taken out of context and given a meaning which was not intended.  His finding that labour relations is a vital part of management can indicate, quite apart from the ordinary principle that labour relations is a provincial matter, that labour relations is an integral, essential and vital part of the management of a provincial undertaking and the provincial power to legislate respecting a provincial undertaking must include the corresponding legislative power to regulate its labour relations.  Thus for the same reason that labour relations of a federal undertaking must be regulated federally I think that labour relations of a provincial undertaking should be regulated provincially.

 

                   In conclusion, I am of the view that, notwithstanding s. 4  of the Canada Labour Code , a valid declaration by Parliament under s. 92(10) (c) of the Constitution Act, 1867  over nuclear electrical generating stations does not give Parliament jurisdiction over the labour relations of employees employed in those stations.  Put another way, at issue herein are works not undertakings and as Hugessen J.A. said in Central Western Railway Corp. v. U.T.U., [1989] 2 F.C. 186, at p. 214, works, being physical things, do not have labour relations, but undertakings do.  Control of labour relations is not integral to the federal interest in the nuclear plants.  Indeed, it may be said on the contrary that, because of s. 92A  of the Constitution Act, 1867  and the fact that Ontario Hydro is a provincial undertaking, control of labour relations is integral to the exercise of provincial jurisdiction over the nuclear electrical generating facilities.  This result accords with the jurisprudence and the underlying principles that apply to federalism in general and the declaratory power in particular.

 

4.If Parliament's jurisdiction over nuclear electrical generating stations derives solely from the peace, order and good government clause of s. 91 of the Constitution Act, 1867, does that jurisdiction include the labour relations of employees employed in those stations?

 

                   It is not disputed in this case that Parliament has jurisdiction over atomic energy and therefore the power to enact the Atomic Energy Control Act under the p.o.g.g. power in the opening words to s. 91  of the Constitution Act, 1867 .  The Attorney General of Canada argued that, if Parliament's jurisdiction over Ontario Hydro's nuclear electrical generating stations through the declaration in s. 18 of the Atomic Energy Control Act, supra, does not extend to labour relations, Parliament can regulate labour relations at the facilities through the exercise of its jurisdiction over atomic energy under the p.o.g.g. power.  In my view, the answer to whether Parliament's jurisdiction under the p.o.g.g. power over Ontario Hydro's nuclear electrical generating plants extends to labour relations must be based on principles similar to those I applied in discussing the declaratory power.  Both the p.o.g.g. power and the declaratory power are unusual in the division of powers scheme, and it is logical to apply the same balancing principles of federalism to both, absent special circumstances.

 

                   There are two recognized doctrines under the p.o.g.g. power which are relevant to this appeal:  the emergency doctrine and the national concern doctrine.  Under the emergency doctrine, Parliament may use its p.o.g.g. powers to enact legislation that would normally be ultra vires to combat a national emergency (see generally Reference re Anti-Inflation Act, [1976] 2 S.C.R. 373).  The type of legislation permissible under the emergency doctrine will be temporary in nature (R. v. Crown Zellerbach Canada Ltd., supra, at p. 432).

 

                   The Court developed the parameters of the national concern doctrine of the p.o.g.g. power in Crown Zellerbach.  In his reasons for the majority, Le Dain J. described the following contours of the national concern doctrine (at pp. 431-32):

 

1.The national concern doctrine is separate and distinct from the national emergency doctrine of the peace, order and good government power, which is chiefly distinguishable by the fact that it provides a constitutional basis for what is necessarily legislation of a temporary nature;

 

2.The national concern doctrine applies to both new matters which did not exist at Confederation and to matters which, although originally matters of a local or private nature in a province, have since, in the absence of a national emergency, become matters of national concern;

 

3.For a matter to qualify as a matter of national concern in either sense it must have a singleness, distinctiveness and indivisibility that clearly distinguishes it from matters of provincial concern and a scale of impact on provincial jurisdiction that is reconcilable with the fundamental distribution of legislative power under the Constitution;

 

4.In determining whether a matter has attained the required degree of singleness, distinctiveness and indivisibility that clearly distinguishes it from matters of provincial concern it is relevant to consider what would be the effect on extra-provincial interests of a provincial failure to deal effectively with the control or regulation of the intra-provincial aspects of the matter.

 

With regard to the last factor, the "provincial inability" test, Le Dain J. hastened to caution that the test "must not, however, go so far as to provide a rationale for the general notion, hitherto rejected in the cases, that there must be a plenary jurisdiction in one order of government or the other to deal with any legislative problem" (p. 434).  Therefore, that the federal government may have jurisdiction over atomic energy by reason of the national concern branch of the p.o.g.g. power does not give Parliament plenary power over all aspects of nuclear power.

 

                   The p.o.g.g. power, like all of Parliament's powers, must be interpreted in accordance with the specific grants of power to the provinces under ss. 92  and 92A  of the Constitution Act, 1867 .  While there is no dispute that Parliament has jurisdiction over atomic energy under the national concern branch of the p.o.g.g. power, the extent of what is swept within Parliament's jurisdiction is circumscribed to the national concern aspects of atomic energy which would appear to be the same as those aspects of the nuclear electrical generating stations which render them to the general advantage of Canada, namely the fact of nuclear production and its safety concerns.

 

                   I concluded above that Parliament does not require control over labour relations at Ontario Hydro's nuclear electrical generating stations in order to exercise effectively its jurisdiction over the works through the declaratory power.  Similarly, it is not integral to the exercise of the p.o.g.g. power over atomic energy that Parliament regulate the labour relations of employees employed at Ontario Hydro's nuclear electrical generating stations.

 

                   To allow Parliament to control labour relations at these facilities where such regulation is not integral to the effective securing of Parliament's interest in the facilities would not be reconcilable with the distribution of legislative powers under which the provinces are accorded jurisdiction over both property and civil rights, including labour relations, and the management of electrical generating facilities.  To define the federal jurisdiction under the p.o.g.g. power in this case to include labour relations would render the provincial power to manage the facilities meaningless since labour relations and management are "two elements of the same reality" (Bell Canada, supra, at p. 798).  This would not have "a scale of impact on provincial jurisdiction that is reconcilable with the fundamental distribution of legislative power under the Constitution" (Crown Zellerbach, supra, at p. 432).

 

                   The Attorney General of Canada cited Pronto Uranium Mines Ltd. v. Ontario Labour Relations Board, [1956] O.R. 862 (H.C.), as authority that Parliament's jurisdiction over atomic energy under the p.o.g.g. power extends to the labour relations of workers employed in the atomic energy industry.  In Pronto, the Canadian Mine Workers Union applied to the OLRB for certification as the bargaining agent for the employees of two mining companies engaged in the mining and concentrating of uranium ores.  The OLRB certified the union and the companies applied for an order to quash the certification decision on the ground that the OLRB had no jurisdiction to hear the application.  The companies argued that the federal Industrial Relations and Disputes Investigation Act, R.S.C. 1952, c. 152, was applicable to their employees.  McLennan J. held that control of atomic energy fell within the federal p.o.g.g. power and that "it would be incompatible with the power of Parliament to legislate with respect to the control of atomic energy for the peace, order and good government of Canada if labour relations in the production of atomic energy did not lie within the regulation of Parliament" (pp. 869-70).

 

                   Pronto was decided prior to the decision of this Court in Crown Zellerbach, supra, under which the present p.o.g.g. claim falls to be decided.  Further, the judgment in Pronto is not supported by any reasons and does not accord with decisions of this Court which have indicated that federal and provincial powers must accommodate one another to the extent possible.  Finally, it appears that the parties in Pronto conceded that if the mine fell within federal jurisdiction in some aspect then federal labour laws applied (at p. 868).  Because of the structure of the parties' arguments, the result in the case was a foregone conclusion once federal jurisdiction over atomic energy was established.  For these reasons, Pronto does not provide authority for the Attorney General of Canada's claim that through the p.o.g.g. power Parliament has jurisdiction over the labour relations at Ontario Hydro's nuclear electrical generating facilities.

 

                   In summary, while Parliament has jurisdiction over atomic energy under the national concern branch of the p.o.g.g. power, that jurisdiction does not extend to the labour relations between Ontario Hydro and those of its employees employed in the nuclear electrical generating stations.  The federal government does not require control over labour relations at Ontario Hydro's nuclear facilities for the exercise of jurisdiction over atomic energy.  In other words, the labour relations at issue in this case are not part of the single, distinctive and indivisible matter identified as atomic energy.  This is not the say, however, that Parliament, where circumstances warrant, may not, in exercising its valid jurisdiction over nuclear energy, enact legislation which has an impact on the labour relations of Ontario Hydro's employees under either the national concern branch or the national emergency branch of the power to legislate for the peace, order and good government of Canada.

 

5.Is Ontario Hydro immune from the operation of the Canada Labour Code by virtue of interjurisdictional Crown immunity?

 

                   In view of the conclusion I have reached that it is the Ontario Labour Relations Act and not the Canada Labour Code , which constitutionally applies in the circumstances of this case, it is not strictly necessary that I address this question.  Nonetheless, I am of the opinion that had I reached a different conclusion on the applicability of the Canada Labour Code , Ontario Hydro would not be immune from the operation of federal labour legislation.

 

                   The Divisional Court held that Ontario Hydro was a public policy instrument to which the Canada Labour Code  should not be interpreted to apply unless the Code expressly and specifically states that it does apply.  I respectfully disagree.  There is no jurisprudence indicating that a company like Ontario Hydro, described by the Divisional Court (at p. 279 O.R.) as a "provincial public policy instrument" and which the parties agreed is not a Crown agent, is entitled to interjurisdictional Crown immunity.  Based on the arguments submitted on this issue, I see no reason to create a new category of interjurisdictional Crown immunity for a species of organization known as a public policy instrument.  Therefore, I agree with the Attorney General of Canada's submission that Ontario Hydro stands on no higher footing than would any other employer in the province of Ontario, in so far as immunity from federal legislation is concerned.

 

VII.  Conclusion

 

                   The federal government exercises exclusive jurisdiction over some aspects of Ontario Hydro's nuclear electrical generating facilities through its declaratory and p.o.g.g. powers.  However, control of labour relations at those facilities is not integral to Parliament's effective regulation of the sites in terms of its interest in those sites.  Therefore, in answer to the constitutional question, it is the Ontario Labour Relations Act which constitutionally applies to the labour relations between Ontario Hydro and those of its employees at its nuclear electrical generating facilities.

 

VIII.  Disposition

 

                   For the foregoing reasons, I would allow the appeals, set aside the order of the Ontario Court of Appeal, and restore the order of the Divisional Court except the mandamus.  Under the circumstances, I would award costs only in this Court to Ontario Hydro, CUPE and the Society, to be paid by the Attorney General of Canada.

 

                   Appeals dismissed, Sopinka, Cory and Iacobucci JJ. dissenting.

 

                   Solicitors for Ontario Hydro:  Blake, Cassels & Graydon, Toronto.

 

                   Solicitors for CUPE ‑‑ C.L.C. Ontario Hydro Employees Union, Local 1000:  Gowling, Strathy & Henderson, Toronto.

 

                   Solicitor for the respondent the Ontario Labour Relations Board:  Kathleen A. MacDonald, Toronto.

 

                   Solicitors for the respondent the Society of Ontario Hydro Professional and Administrative Employees:  Cavalluzzo, Hayes & Shilton, Toronto.

 

                   Solicitor for the respondent the Attorney General of Canada:  John C. Tait, Ottawa.

 

                   Solicitor for the intervener the Attorney General for Ontario:  George Thomson, Toronto.

 

                   Solicitor for the intervener the Attorney General of Quebec:  The Department of Justice, Ste‑Foy.

 

                   Solicitor for the intervener the Attorney General for New Brunswick:  Paul M. LeBreton, Fredericton.

 

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