



COURT OF APPEAL FOR ONTARIO

CITATION: Ramkey Communications Inc. v.
    Labourers' International Union of North America, 2019 ONCA 859

DATE: 20191101

DOCKET: C66613

Hoy A.C.J.O., Tulloch and Jamal
    JJ.A.

BETWEEN

Ramkey Communications Inc.

Applicant (Respondent)

and

Labourers
    International Union of North America, Ontario Provincial District Council
,
Utility Contractors Association of Ontario
, and
Ontario
    Labour Relations Board

Respondents (
Appellant
/
Respondents
)

L.A. Richmond and Ben Katz, for the
    appellant Labourers International Union of North America

Frank Cesario and Amanda Cohen for the
    respondent Ramkey Communications Inc.

Bonnea Channe and Giovanna Di Sauro,
    for the respondent Utility Contractors Association of Ontario

Aaron Hart, for the respondent Ontario
    Labour Relations Board

Courtney Harris and Ravi Amarnath, for
    the intervener Attorney General of Ontario

Heard: September 12, 2019

On appeal from the order of the
    Divisional Court (Regional Senior Judges Geoffrey B. Morawetz and Robbie D.
    Gordon and Justice Julie A. Thorburn), dated August 13, 2018, with reasons
    reported at 2018 ONSC 4791, 142 O.R. (3d) 193, quashing two decisions of the
    Ontario Labour Relations Board, dated March 23, 2017, with reasons reported at [2017]
    O.L.R.B. Rep. 261, and dated May 17, 2017, with reasons reported at 300
    C.L.R.B.R. (2d) 141.

Hoy A.C.J.O.:

A.

OVERVIEW

[1]

Ontario has presumptive constitutional
    jurisdiction over labour relations within its boundaries. The issue in this
    appeal is whether that presumptive jurisdiction has been displaced through the
    operation of derivative jurisdiction such that federal labour laws apply to
    construction labourers employed in Ontario by the respondent, Ramkey
    Communications Inc.

[2]

On August 8, 2015, the appellant, Labourers
    International Union of North America, Ontario Provincial District Council,
    applied to the Ontario Labour Relations Board for certification under the
    construction industry provisions of the
Labour Relations Act, 1995
, S.O.
    1995, c. 1, Sched. A, as amended, of all Ramkeys construction labourers
    employed in six Ontario counties, except for those in the industrial,
    commercial and institutional sector and persons at or above the rank of
    non-working foremen. These construction labourers were a subset of Ramkeys employees
    in Ontario.

[3]

Ramkey opposed certification. It argued that its
    construction labourers  which it calls construction technicians  performed
    essential work for federally regulated telecommunications companies and that their
    labour relations should, therefore, be federally regulated.

[4]

The Board was not satisfied that the presumption
    of provincial jurisdiction was displaced and granted certification as a
    provincially regulated bargaining unit. Ramkey sought judicial review. The
    Divisional Court found that Ramkeys construction technicians were engaged
    derivatively in work that is vital, essential, or integral to a federal
    undertaking and, therefore, should be federally regulated. It quashed the
    Boards decision.

[5]

The Union now appeals to this court. It argues
    that the Divisional Court misconstrued and misapplied the relevant case law,
    applied the wrong legal test for derivative jurisdiction and failed to defer to
    the Boards extensive factual findings in its 119-page decision.

[6]

I conclude that the Divisional Court erred by
    failing to give effect to the Boards clear finding that Rogers was not dependent
    on the services of Ramkeys construction technicians. Considering and giving
    appropriate weight to that finding, I would not impose exceptional federal
    jurisdiction over Ramkeys construction technicians.

[7]

Below, I provide some further background, drawn
    from the findings of fact made by the Board, outline the decisions of the Board
    and the Divisional Court, and then turn to my analysis.

B.

BACKGROUND

[8]

Ramkey is incorporated under the laws of
    Ontario. It does not itself own, have any interest in, or operate any
    telecommunications undertaking. It is not owned by any federally regulated
    undertaking. It is a local contractor, with operations in London, Ontario, and
    some surrounding areas.

[9]

At the time of the Unions application, Ramkey
    provided services as a third-party contractor, on a non-exclusive basis, mainly
    to Rogers, but also to other federally regulated telecommunications companies. To
    a significantly smaller extent, Ramkey also provided some services to entities
    that are not federally regulated telecommunications companies.

[10]

Ramkey has two different kinds of technicians, whom
    it refers to as sales technicians and construction technicians.

[11]

The sales technicians perform residential and
    commercial installation and service work, mostly, if not exclusively, for
    Rogers, which owns and operates a federally regulated telecommunications network.
    The sales technicians are not part of the agreed-upon bargaining unit the Union
    seeks to certify. This appeal is solely about Ramkeys construction
    technicians.

[12]

Ramkey established a small group of construction
    technicians in 2012. Its construction technicians began to provide services to
    Rogers in 2014, and it established a construction division. The construction
    technicians worked on Rogers telecommunications network closer to the headend,
    where the signals originate. This work, which includes placement of new lines
    and supporting infrastructure as well as plant maintenance on existing ones,
    requires the use of equipment, skills and construction capabilities that are
    not necessary for the residential installation service work performed by sales
    technicians.

[13]

Rogers was Ramkeys dominant client at the time
    of the application. In the 2013 and 2014 fiscal years, as well as the first
    portion of 2015, Rogers constituted over 90% of Ramkeys total revenues. The
    majority of Ramkeys work for Rogers was service installation, as opposed to
    construction, which was done by the sales technicians. The Rogers construction
    work accounted for somewhere between 10-13% of Ramkeys revenues. Ramkey also
    did a small amount (never more than 1.5% of its total revenues) of construction
    work for non-telecommunications clients. This work was similar to the work it
    performed for Rogers. Ramkey wants to increase the construction work it does
    for non-telecommunications clients.

[14]

At the time of the Unions application in August
    of 2015, Ramkey employed approximately 35 construction technicians. During the
    hearing before the Board in 2016, however, Rogers pulled back all the
    construction work it had given to Ramkey, for reasons unrelated to this
    proceeding. This necessitated layoffs.

[15]

Ramkey performs services for Rogers under the
    terms of a written contract which Rogers can essentially terminate on 30 days
    notice. Ramkey is not the exclusive provider of these services to Rogers, nor
    is Ramkey guaranteed any kind or amount of work from Rogers. In fact, Rogers
    always has more than one contractor in an area. There are active and successful
    competitors for the Rogers work in the geographic areas in which Ramkey
    carries on business, some of which are provincially certified by the Union.
    Some of them continue to perform the construction work that Ramkey no longer
    performs for Rogers.

[16]

Prior to the Unions application, it appears
    that Ramkey followed and complied with Ontarios employment statutes and
    regulations. It asserted that it was subject to federal jurisdiction for the
    first time in this proceeding.

(1)

The Boards Decision

[17]

The Board reviewed key authorities, which I discuss
    later in these reasons, addressing when presumptive provincial jurisdiction
    over labour relations is displaced. In the Boards view, those authorities
    signal that the presumption of provincial jurisdiction over labour relations
    will only be displaced in the clearest of cases.

[18]

Construction Montcalm Inc. v. Min. Wage Com.
, [1979] 1 S.C.R. 754, played a significant role in the Boards
    analysis. In
Montcalm
, the Supreme Court held that provincial minimum
    wage legislation and related labour legislation applied to a contractor
    building a runway at an airport, a federally regulated undertaking. In the
    Boards view,
Montcalm
stands for the proposition that labour
    relations of construction industry employers are subject to provincial
    jurisdiction, even when the employees are constructing a federally regulated
    undertaking. The Board explained that simply building a federal undertaking is
    not vital or integral to the operation of a federal undertaking; building,
    constructing, repairing (and even connecting to) the federal undertaking is not
    equivalent to operating the federal undertaking. Applying
Montcalm
,
    the Board concluded that presumptive provincial jurisdiction over Ramkeys
    construction labourers was not displaced.

[19]

The Board noted that it is not unusual to
    certify construction activities of an employer separate from its
    non-construction activities (which may not be certified at all). It also noted
    that the fact that one part of an employers operations is subject to one
    jurisdiction does not,
per se
, preclude the labour relations of
    another part from being subject to another jurisdiction. In this case, the
    Union did not concede, and the Board did not determine, that the sales
    technicians were subject to federal jurisdiction. But the Board found that,
    even if they were, any resulting practical or logistical problems would be neither
    impossible to overcome nor sufficient to displace the presumption of provincial
    jurisdiction over the construction labourers.

[20]

Nor, the Board concluded, did the fact that the
    overwhelming majority of Ramkeys work was for Rogers displace the presumption
    of provincial jurisdiction over labour relations. The focus for the Board was
    not whether Rogers business was vital, essential, or integral to Ramkey, but
    whether Ramkey was vital, essential, or integral to Rogers. The work done by
    Ramkey was not so vital that Rogers insisted it be done by its own employees.
    The controls that Rogers had over Ramkey were not greater than any owner/client
    or general contractor in the construction industry might exercise over any
    subcontractor. Moreover, the work given by Rogers to Ramkey was neither permanent
    nor particularly secure. If Ramkey was unavailable to perform the work, Rogers
    would simply use another contractor. Rogers could easily survive without Ramkey.

[21]

The Board was not persuaded that Ramkey was
    vital, essential, or integral to the operation of a federal undertaking (Rogers
    or other telecommunications companies); Ramkey was not, therefore, derivatively
    subject to federal jurisdiction.

[22]

Following receipt of a letter from the federal
    government (discussed in more detail below), Ramkey asked the Board to
    reconsider its decision. The Board refused, and Ramkey applied for judicial
    review of both decisions.

(2)

The Divisional Courts Decision

[23]

After reviewing the jurisprudence and noting
    that Ramkey was provincially incorporated and independently owned, the
    Divisional Court summarized the relevant presumption of provincial jurisdiction
    and how it is displaced, at para. 49:

There is therefore a presumption that [Ramkey]
    is provincially regulated unless Ramkey is associated with a core federal
    undertaking, the habitual operation of Ramkeys employees is to service the
    federal undertaking, or there is a vital, essential or integral relationship
    with the federal undertaking(s).

[24]

For the purposes of its analysis, the Divisional
    Court defined the federal undertaking as the telecommunications companies with
    which Ramkey does business. It then described the work of Ramkeys construction
    technicians, at para. 51:

Ramkeys technicians perform construction
    services that include installing, maintaining and repairing telecommunications
    networks. Almost all of their work (approximately 99% between 2013 and 2015)
    was for telecommunications companies, most of which was for Rogers. Ramkey now
    does less work for Rogers but almost all of the work it used to do Rogers, is
    done for other telecommunications companies that are also federally regulated.

[25]

The Divisional Court distinguished
Montcalm
,
    on which the Board had relied, on the basis that the construction technicians
    were not simply engaged in construction, at para. 53:

In this case by contrast, the core of Ramkeys
    work is to install and maintain the fibre optic telecommunications network in
    good working order for existing and prospective clients. This work is highly
    integrated with that of Rogers and other telecommunications companies and has
    been so integrated for an extended period. The type of work they do installing,
    maintaining and enhancing fibre optic cable, is integral to providing
    telecommunications and that work is operational (as it involves maintaining and
    enhancing the network on an ongoing basis not simply construction).

[26]

The Divisional Court emphasized, at para. 54,
    that the network could not function without the work done by Ramkey. Each part
    [of the network] is essential to the functioning of the network as, without
    these services there would be no functioning network.

[27]

The Divisional Court continued by underscoring
    the importance of Ramkeys work to telecommunications companies and Ramkey
    itself, at paras. 55, 59:

In short, Ramkey is beholden to the
    telecommunications companies for the work that it does and the work that Ramkey
    does is integral to the services provided by telecommunications companies like
    Rogers, to its clients. Telecommunications services cannot be offered without a
    functioning network line

In short, when looking at the past and present
    work done by Ramkey, almost all of the volume of work was done for
    telecommunications companies, and the type of work done is an important
    component and integral to the services offered by cable companies and their
    ability to offer their service.

[28]

The Divisional Court concluded by finding that
    there was derivative jurisdiction in this case, at para. 60:

We therefore find that Ramkeys construction
    technicians are engaged derivatively in work that is vital, essential or
    integral to a federal undertaking and therefore should be federally regulated.

[29]

The Divisional Court granted the application for
    judicial review and quashed both of the Boards decisions.

C.

ANALYSIS

[30]

The heart of this appeal is whether the
    Divisional Court correctly applied the test for displacing the provinces
    presumptive labour jurisdiction over Ramkeys construction technicians. As I will
    explain, respectfully, in my view, it did not. Significantly, it failed to
    consider whether the effective performance of the telecommunications network
    operated by Rogers was dependent on the particular employees under scrutiny,
    namely Ramkeys construction technicians, especially given that Rogers had
    ceased using Ramkeys construction technicians. On the facts found by the
    Board, the effective performance of Rogers telecommunications network is
    clearly not dependent on Ramkeys construction technicians. In my view,
    applying the correct analytical framework, as recently re-articulated by the
    Supreme Court in
Tessier Ltée v. Quebec (Commission de la santé et de la
    sécurité du travail)
, 2012 SCC 23, [2012] 2 S.C.R. 3, and considering and
    giving appropriate weight to the factor of dependency in this analysis,
    provincial labour jurisdiction over the construction technicians is not
    displaced.

[31]

Below, I review the chain of jurisprudence considered
    in and leading to
Tessier
and then apply the principles emerging from
    this jurisprudence to the facts of this case.

(1)

The jurisprudence

[32]

Turning to first principles, labour relations is
    presumptively a provincial matter since it engages the provinces authority
    over property and civil rights under s. 92(13) of the
Constitution Act,
    1867
. Parliament has jurisdiction to regulate employment in two
    circumstances: when the employment relates to a work, undertaking, or business
    within the legislative authority of Parliament; or when it is an integral part
    of a federally regulated undertaking, sometimes referred to as derivative
    jurisdiction:
Tessier
, at paras. 11, 17.

[33]

The first circumstance is not applicable
    here: Ramkey is a local work and does not itself own or operate a federally
    regulated telecommunications network. This appeal concerns the second
    circumstance. Is the employment of Ramkeys construction technicians an
    integral part of a telecommunications network  a federally regulated
    undertaking  such that Parliament has derivative jurisdiction over it?

(a)

The
Stevedores Reference

[34]

The doctrine of derivative jurisdiction is often
    traced back to the Supreme Courts decision in
Reference re Industrial
    Relations and Disputes Investigation Act
, [1955] S.C.R. 529 (the 
Stevedores
    Reference

). In the
Stevedores
    Reference
, eight of nine judges concluded in separate reasons that federal
    labour law applied to the stevedores in question because their work was
    integral to the federally regulated shipping companies that used them. The
    majority reasoned that the employees devoted all their time to the shipping
    companies and that those companies relied on them exclusively to load and
    unload all of their cargo.

[35]

In coming to this conclusion, Estey J. observed,
    at p. 568, that [i]f  the work of stevedoring, as performed under the
    foregoing contracts, is an integral part or necessarily incidental to the
    effective operation of these lines of steam ships, legislation in relation
    thereto can only be competently enacted by the Parliament of Canada. This
    approach, Abella J. would later observe in
Tessier
, at para. 31,
    reflects the proper framework for analyzing derivative jurisdiction. As Dickson
    C.J., writing for the majority in
United Transportation Union v. Central
    Western Railway Corp.
, [1990] 3 S.C.R. 1112, at p. 1137, subsequently
    commented, Federal jurisdiction [in the
Stevedores Reference
] seems
    to have been based on a finding that the core federal undertaking was dependent
    to a significant degree on the workers in question.

(b)

Letter Carriers

[36]

The Supreme Court next addressed derivative jurisdiction in
Letter Carriers Union v. C.U.P.W.
, [1975] 1 S.C.R. 178.
    In
Letter Carriers
, at pp. 185-86, Ritchie
    J., writing for a unanimous court, adopted Estey J.s observation from the
Stevedores Reference
, at p. 568,
that the court should look
    at whether the local operation is an integral part or necessarily incidental
    to the effective operation of the federal undertaking. As Dickson C.J. later commented
    in
United Transportation
, at p. 1137, in
    finding that the respondent companys employees performing work under contracts
    with the Post Office were subject to federal jurisdiction, the court [in
Letter Carriers
] seems to have been much influenced by
    the dependence of the post office upon its subcontractors for mail delivery.

(c)

Telecom 1

[37]

In
Northern Telecom v. Communications Workers
,
    [1980] 1 S.C.R. 115 (
Telecom 1

),
    the issue was whether a subset of Northern Telecoms employees who worked as
    supervisors in its installation department were subject to federal labour laws.
    The installation department installed telecommunications equipment in the
    federally regulated telephone network of Northern Telecoms parent corporation,
    Bell Canada. Dickson J. (as he was then) explained the analytical framework for
    assessing whether an operation is vital to a federal undertaking, at p. 132:

First, one must begin with the operation which
    is at the core of the federal undertaking. Then the courts look at the
    particular subsidiary operation engaged in by the employees in question. The
    court must then arrive at a judgment as to the relationship of that operation
    to the core federal undertaking, the necessary relationship being variously characterized
    as vital, essential or integral.

[38]

As Abella J. later explained in
Tessier
,
    at para. 38, the focus of the analytical framework established in
Telecom 1
is on the relationship between the activity, the particular employees under
    scrutiny, and the federal operation that is said to benefit from the work of
    those employees.

[39]

The appeal in
Telecom 1
was dismissed
    because of the absence of relevant evidence.

(d)

Telecom 2

[40]

The issue of derivative jurisdiction returned
    before the Supreme Court in
Northern Telecom v. Communications Workers
,
    [1983] 1 S.C.R. 733 (
Telecom 2

),
    which dealt with a different labour dispute.
Estey J., writing for the
    majority, applied the analytical framework established in
Telecom
    1

to a different subset of Northern
    Telecoms employees engaged in installing equipment in the telephone network of
    Bell and in the facilities operated by Northern Telecoms other customers and
    found that the labour relations of these employees should be assigned to the
    federal sphere. Dickson J., writing concurring reasons, observed that the case
    was close to the boundary line but that the labour relations of Northern
    Telecom should be federally regulated: at p. 774.

[41]

As was the case in
Telecom 1
,
    Northern Telecom was a subsidiary of Bell. Bell acquired 90% of its switching
    and transmission equipment from Northern Telecom and 95% of all such equipment
    was installed by Northern Telecom. Northern Telecoms installers had no contact
    with the other Northern Telecom employees engaged in manufacturing, but instead
    worked closely with Bell employees, spending the great bulk of their time on Bells
    premises (at p. 767) and never working on Telecoms premises (at p. 770). The
    work for Bell consumed a very high percentage of the work done by the
    installers (at p. 767). Key factors weighing in favour of federal jurisdiction included
    [t]he almost complete integration of the installers daily work routines with
    the task of establishing and operating [Bells] telecommunications network (at
    pp. 766-67) and the interprovincial scope of the work of the employees, which
    extended into at least five provinces (at p. 768).

(e)

United Transportation

[42]

In
United Transportation
, by contrast,
    the Supreme Court declined to find derivative jurisdiction over a local
    railways employees. That case

arose out of the sale of a 105-mile
    railway line in Alberta from Canadian National Railway, a federally regulated railway
    company, to a provincial railway company, Central Western Railway Corporation.
    Did federal labour legislation continue to apply to the employees working on
    this railway line? Dickson C.J., writing for the majority, answered no.

[43]

Unlike in
Telecom 1
, there was no daily
    or simultaneous connection between the two enterprises. Each company operated
    independently within its own sphere:
United Transportation
, at p.
    1141. Also, unlike in
Telecom 1
and
Telecom 2
, the employees
    were located wholly within a single province.

[44]

Significantly, Dickson C.J. considered, at p.
    1142, whether CN was dependent on Central Western, an important factor which,
    in his view, emerged from the
Stevedores Reference
and
Letter
    Carriers
:

Finally, and perhaps most importantly, it
    cannot be said that CN is in any way dependent on the services of [Central Western].
     Consequently, in contrast to the
Northern Telecom
cases, the core
    federal undertaking (CN) would not be severely disadvantaged if [Central
    Westerns] employees failed to perform their usual tasks. In sharp contrast to
    the
Stevedores Reference
or
Letter Carriers
case,
the effective performance of CNs obligations as a national
    railway is not contingent upon the services of [Central Western]
. These
    factors point strongly, almost decisively, against a finding of federal
    jurisdiction over the employees in question. [Emphasis added.]

(f)

Westcoast Energy

[45]

The role of dependency in the derivative
    jurisdiction analysis was next addressed in McLachlin J.s (as she was then)
    dissent in
Westcoast Energy Inc. v. Canada (National Energy Board)
,
    [1998] 1 S.C.R. 322. Unlike the other cases in this line of jurisprudence,
Westcoast
    Energy
was not a labour dispute. It concerned the jurisdiction of the
    federal government to regulate two natural gas processing plants and related
    gathering pipelines that were connected to a mainline transmission pipeline
    that undisputedly came within federal jurisdiction. The majority found that the
    pipeline system came with federal jurisdiction under s. 92(10)(a) of the
Constitution
    Act, 1867
. Consequently, the majority did not consider derivative
    jurisdiction.

[46]

McLachlin J. dissented, finding that the
    processing plants did not fall under federal jurisdiction under either s.
    92(10)(a) or a derivative jurisdiction analysis. Drawing on Dickson C.J.s
    reasons in
United Transportation
, she noted that dependency was one of
    the relevant factors in the derivative jurisdiction analysis, at para. 141:

[t]o be relevant at all, the dependency must
    be permanent ... It is also clear that dependency of the local work or
    undertaking on the interprovincial enterprise is immaterial  Dependency is
    relevant only where the interprovincial work or undertaking is dependent on the
    local enterprise in the sense that the latter is essential to the
    interprovincial enterprises delivery of services.

[47]

McLachlin J. explained that, even where the federal work or
    undertaking is permanently dependent on a provincial work or undertaking, the
    provincial work or undertaking may not be transferred to federal jurisdiction.
    If the provincial undertaking retains its distinct identity and is not
    functionally integrated with the federally regulated enterprise, it remains
    under provincial jurisdiction: at para. 143. Thus, dependency alone may not be
    sufficient to transfer a work or undertaking to federal jurisdiction.

(g)

Tessier

[48]

Tessier
, the Supreme
    Courts most recent decision addressing derivative jurisdiction, also comments
    on dependency as a factor in the analysis.

[49]

Tessier Ltée
was a provincially regulated company that had a fleet of 25 cranes,
    some of which were used for loading and unloading ships. Tessier argued that
    its stevedoring activities fell under federal jurisdiction over shipping, with
    the result that its employees should not be governed by provincial occupational
    health and safety legislation. However, stevedoring represented only 14% of
    Tessiers overall revenue and 20% of the salaries paid to employees. Further, Tessiers
    employees worked across various areas of its operations. An employee who
    operated a crane at a port one day might operate it at a construction site, or
    drive a truck, the next.

[50]

Abella J., writing for the court, explained that
    where derivative jurisdiction is asserted, it must be assessed whether the
    work, business or undertakings essential operational nature renders the work
    integral to a federal undertaking:
Tessier
, at para. 18.

[51]

She then went on to articulate the analytical
    framework for assessing whether a related work is integral to a federal
    undertaking. She adopted Dickson C.J.s explanation from
United
    Transportation
of the role of dependency in determining whether a local work
    is sufficiently integrated with a federal undertaking for federal jurisdiction
    to extend to the local operations workers. She also observed that McLachlin
    J.s dissent in
Westcoast Energy
was of particular assistance,
    noting in particular her comment to the effect that the test is flexible, with
    different decisions emphasizing different factors, and her consideration of
    dependency:
Tessier
,
at para 45.

[52]

Tying these cases together, she wrote, at para.
    46:

So this Court has consistently considered the
    relationship from the perspective both of the federal undertaking and of the
    work said to be integrally related,
assessing the extent
    to which the effective performance of the federal undertaking was dependent on
    the services provided by the related operation
, and how important those
    services were to the related work itself. [Emphasis added.]

[53]

Abella J. observed that the Supreme Court had thus
    far applied the derivative jurisdiction test in two different contexts: when
    the services provided to the federal undertaking form the exclusive or the
    principal part of the related works activities, as in the
Stevedores
    Reference
; and when the services provided to the federal undertaking are
    provided by a unit of employees that is functionally independent of the rest of
    the related operation, as in
Telecom 2
. Abella J. explained that, in
    the latter context, the court will assess the essential operational nature of
    the unit as a separate entity, rather than focusing on the local work as a
    whole.

[54]

Tessier

presented the court with a third context in which to apply the
    derivative jurisdiction test, namely when the employees performing the work do
    not form a discrete unit and are fully integrated into the related operation:
Tessier
,
    at para. 50. Abella J. wrote, at paras. 50-51, that in such a case:

[E]ven if the work of
    those employees is vital to the functioning of a federal undertaking
, it will not render federal an operation that is otherwise local if
    the work represents an insignificant part of the employees time or is a minor
    aspect of the essential ongoing nature of the operation.



[F]ederal jurisdiction is only justified if
    the federal activity is a significant part of its operation. [Emphasis added.]

[55]

Assessing the extent to which the effective
    performance of the federal undertaking was dependent on Tessiers services and
    how important those services were to Tessier itself, Abella J. concluded that Tessiers
    essential operational nature was local, and its stevedoring activities were integrated
    with its overall operations and formed a relatively minor part of its overall
    operation: at para. 59.

[56]

This conclusion was sufficient to dispose of the
    appeal. However, Abella J. added, that, to be relevant, a federal undertakings
    dependency on a related operation must be ongoing: at para. 61. Since there was
    nothing to demonstrate the extent to which the shipping companies were
    dependent on Tessiers employees, the absence of evidence of dependence also
    argued against imposing exceptional federal jurisdiction:
Tessier
,
    at para. 61.

(2)

Applying these principles to the facts of this case

(a)

A preliminary
    comment

[57]

It
    is important to remember that, just as
Telecom 1
and
Telecom 2
were about subsets of Northern Telecoms
    employees (its supervisors and installers, respectively), the particular
    employees under scrutiny on this appeal are a distinct subset of Ramkeys
    employees, its construction technicians, who are organized into a separate
    division. It is not about the sales technicians, who form the bulk of Ramkeys
    employees, nor about the services they provide to Rogers and others. The
    presumption, absent evidence to the contrary, is that those employees are subject
    to provincial jurisdiction.

[58]

As
    noted earlier in these reasons, until this proceeding, Ramkey accepted that it
    was subject to Ontarios labour laws. After Ramkey had finished its closing
    submissions before the Board, Ramkey received a letter dated December 2, 2016
    from the federal governments Employment and Social Development Canada Labour
    Program. In the letter, a federal government inspector advised that she had
    concluded an investigation regarding the jurisdiction of Ramkey with respect to
    labour standards legislation. The letter states, in relevant part:

Based on information provided to
    me, I have determined that Ramkey Communications Inc. is engaged in
    telecommunications installation, maintenance and repair, a dedicated service
    that is considered vital, essential, integral or necessarily incidental to a
    federal undertaking. Therefore, Part III of the
Canada
    Labour Code
applies to your company.

Relying in part on the letter, Ramkey asked the Board
    to reconsider its decision. The Board declined to do so.

[59]

The
    letter is clearly not determinative of the issue of federal jurisdiction over
    the construction technicians. That is the issue before this court. The Attorney
    General of Canada was served with a Notice of Constitutional Question but it
    opted not to intervene in the proceedings. Further, after the letter was issued
    to Ramkey, and subsequent to the Boards decision, Ramkey was convicted in the
    Ontario Court of Justice of offences under the
Occupational Health and
    Safety Act
, R.S.O. 1990, c. O.1, as
    amended,
in relation to an incident on October 8, 2014 involving a
    construction technician: see
R. v. Ramkey Communications
    Inc.
(6 March 2018; 27 March 2018), Brantford, File No. 0260 999 15
    6497 (Ont. Prov. Ct.). Counsel for the Attorney General of Ontario advised the
    court that Ramkeys appeal of the finding that its construction technicians are
    provincially regulated and of the sentence is being held in abeyance by
    agreement pending the outcome of this appeal.

[60]

Nor, for the purposes of my analysis, does the letter displace the
    presumption that the sales technicians are subject to provincial jurisdiction.
    The Union does not concede that the sales technicians are subject to federal
    jurisdiction. And, until the Union brought its application, Ramkey did not
    assert that it was subject to federal jurisdiction. Indeed, as the Board noted
    in its reasons, at para. 42, in 2007 a predecessor of Ramkey successfully
    argued that it was subject to provincial jurisdiction:
Correia
    v.
Conex Cable Technology Specialists Inc.
,
    [2007] C.L.A.D. No. 483. Whether the presumption that the sales technicians are
    subject to provincial jurisdiction is displaced is an issue for another day, on
    a complete record.

(b)

Applying
Tessier

[61]

Unlike
    the employees in
Tessier
, who routinely worked
    across various areas of Tessiers operations, performing different tasks, the
    construction technicians are a distinct subset of Ramkeys employees and can be
    constitutionally characterized separately from the rest of Ramkeys employees.

[62]

As
Tessier
instructs, at para. 46, I therefore consider the relationship
    from the perspective of the federal undertaking and of the construction work
    said to be integrally related, assessing (1) how important Ramkeys
    construction services for the federal undertaking were to Ramkeys construction
    division, and (2) the extent to which the effective performance of the federal
    undertaking was dependent on Ramkeys construction services.

[63]

While
    the construction services provided by Ramkey to Rogers and other federal
    undertakings formed a relatively minor part of Ramkeys overall activities, at
    the time of the Unions application, they unquestionably formed the overwhelming
    part of the construction divisions activities. And Rogers was Ramkeys
    dominant client. However, during the course of the hearing before the Board,
    Rogers ceased using Ramkeys construction technicians.

[64]

More
    importantly, the effective performance of Rogers was not in any way dependent
    on Ramkeys construction services. Unlike in
Tessier
or in the Federal Court of Appeals recent decision
    in
Telecon Inc. v. International Brotherhood of Electrical
    Workers, Local Union No. 213
, 2019 FCA
    244,
in this case, the Board made clear findings that Rogers was
    not dependent on Ramkeys construction technicians. The effective performance
    of Rogers telecommunications network was not contingent upon the services of
    Ramkeys construction technicians. The controls Rogers had over Ramkey were no
    greater than any owner/client or general contractor in the construction
    industry might exercise over any subcontractor. Rogers only began using
    Ramkeys construction technicians in 2014. It had no long-term commitment to
    use Ramkeys construction technicians. It never relied exclusively on Ramkeys
    construction technicians. In 2016, in the course of the hearing before the
    Board, Rogers pulled back all the construction work it had given to Ramkeys
    construction technicians. Ramkeys competitors performed the construction work
    Ramkey used to do for Rogers. Moreover, while the hearing before the Board
    focused on the relationship between Ramkey and Rogers, there is no evidence before
    this court (and the Board did not find) that any other telecommunications
    network to which Ramkeys construction technicians provided services was
    dependent on those services.

[65]

I
    acknowledge that, in
Tessier
, Abella J.
    observed, at para. 45, that the test for derivative federal jurisdiction is
    flexible: Different decisions have emphasized different factors and there is
    no simple litmus test. Here, however, in the absence of dependency  and in
    circumstances where Ramkeys construction technicians ceased to do any work for
    Rogers  it simply cannot be said that Ramkeys construction technicians are
    vital or integral to Rogers operations as a federal telecommunications
    undertaking.

[66]

Respectfully,
    the Divisional Court erred by considering the extent to which the delivery of
    telecommunications services by Rogers and other telecommunications companies
    like Rogers was dependent on having a functioning network line and on work of
    the type performed by Ramkeys construction technicians. The proper focus is
    the extent to which Rogers and the other telecommunications companies, to which
    Ramkeys construction technicians provided construction services, were
    dependent on the services of Ramkeys construction technicians  the particular
    employees under scrutiny:
Tessier
, at para. 38.

[67]

Given
    the clear findings by the Board that Rogers was not dependent on Ramkeys
    construction technicians, I conclude that this is not a case where exceptional
    federal jurisdiction can be found.

(c)

A note on
Montcalm

[68]

While
    I agree with the Boards decision that Ramkeys construction technicians are
    not subject to federal jurisdiction over labour relations, I do not agree to
    the extent that the Boards reasons might be taken as suggesting that
Montcalm
stands for the proposition that there is a special presumption that the labour
    relations of construction industry employers are subject to provincial
    jurisdiction. There is no construction presumption. Rather there is a
    provincial presumption over labour relations generally. The same principles
    apply to construction employees as to other employees in determining whether
    they are subject to derivative federal jurisdiction.

D.

DISPOSITION AND COSTS

[69]

For these reasons, I would allow the appeal, set aside the order
    of the Divisional Court, and restore the Boards order granting certification
    to the Union. I would order that Ramkey pay costs of the application for
    judicial review to the Divisional Court, of the motion for leave to appeal, and
    of the appeal to the Union in the aggregate amount of $20,000, inclusive of HST
    and disbursements.

Released: AH NOV 01 2019

Alexandra
    Hoy A.C.J.O.

I
    agree M. Tulloch J.A.

I
    agree M. Jamal J.A.


