Federal Court of Appeal Decisions

     A-616-96

CORAM:      MARCEAU J.A.

     DESJARDINS J.A.

     CHEVALIER D.J.A.

IN THE MATTER OF THE CANADA LABOUR CODE, R.S.C. 1985, c. L-2, as amended,

AND IN THE MATTER OF AN APPLICATION FOR CERTIFICATION AS BARGAINING AGENT PURSUANT TO SECTION 24 OF THE CODE

BETWEEN:

     REDERIET A.P. MOLLER A/S

     Applicant

     - and -

     SEAFARERS' INTERNATIONAL UNION OF CANADA

     Respondent

     REASONS FOR JUDGMENT OF THE COURT

     (Delivered from the Bench at Montreal, Quebec,

     on Thursday, January 30, 1997)

MARCEAU J.A.

     In spite of their very able presentation, counsel for the applicant have not succeeded in convincing us that there was merit in the application.

     The Canada Labour Relations Board arrived at its conclusion that it had jurisdiction to issue the certification order in respect of unlicensed seafarers in the employ of the applicant on board the vessels "Maersk Chignecto" and "Maersk Gabarus" following a reasoning which is no doubt open to question. In its analysis, the Board first looked at whether the operations of the applicant could be seen as falling under federal or provincial jurisdiction, and having determined that, in view of their international scope, the jurisdiction was federal since it could obviously not be provincial, it then looked to see if that jurisdiction was ousted by international law. This appears to us to be going in a somewhat backward fashion. In our view, the proper approach is first to ascertain that Parliament has authority, and an authority recognized in international law, to pass legislation affecting the operations of the applicant, in spite of the international scope of these operations and the fact that the applicant is a foreign company, and if that can be ascertained, then to see whether Parliament has in fact enacted legislation on point and conferred on the Board the power to exercise the mandate assigned to it with respect to those operations.

     We do not have to discuss the question of whether it is within the legislative power of Parliament to legislate upon the internal operations of ships sailing under Canadian flags beyond the territorial limits of Canada. Article 94 of the United Nations Convention on the Law of the Sea goes so far as to impose a positive duty on flag states to exercise that jurisdiction. It would be absurd indeed if a vessel could avoid the internationally sanctioned application of the law of its flag state simply by not sailing into its territorial water. To be fair, the applicant does, in no way, dispute that first proposition. Its position is that, although Parliament could very well have conferred onto the Board jurisdiction that could have extended to operations such as those of the applicant, it has not actually done so. In its submission, a proper interpretation of sections 2 and 4 of the Canada Labour Code, on the basis of which the jurisdiction of the Board is to be determined, does not support a view that the scope of application of the Code has been made co-extensive with the jurisdiction of Parliament. The application of the Code does not extend to operations like those of the applicant where the employer is not Canadian and the operations involved are conducted outside the territory of Canada, even if the vessel used for these operations sails under Canadian flag. The reason is that the necessary connection with Canada is totally missing.

     We simply do not agree. Let us look again at sections 2 and 4 of the Code. Here is how they read:

2.      In this Act,

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

(a)      a work, undertaking or business operated or carried on for or in connection with navigation and shipping, whether inland or maritime, including the operation of ships and transportation by ship anywhere in Canada,

[...]

(c)      a line of ships connecting a province with any other province, or extending beyond the limits of a province,

[...]

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

(j)      a work, undertaking or activity in respect of which federal laws within the meaning of the Canadian Laws Offshore Application Act apply pursuant to that Act and any regulations made under that Act; [...]

4.      This Part applies in respect of employees who are employed on or in connection with the operation of any federal work, undertking 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.

We see nothing in the wording of these provisions that would expressly limit the application of the Code in the manner suggested by the applicant and there is nothing that would compel the interpreter to read into the provisions such limit. All that is required for Part I to apply is that the operation be "a work, undertaking or business" that falls within the legislative authority of Parliament. The appellant insists on the necessity of a connection between the operation involved and Canada in order to raise sufficient concerns on the part of Canadian authorities. As to the connection, which must be analyzed according to all circumstances, it is difficult to deny that there is indeed one, when we consider that the vessels are owned by a Canadian company, that they sail under Canadian flag with a crew of Canadian citizens recruited in Canada and enjoying all the benefits of Canadian laws. As to sufficient concerns, we believe that the sole fact that all the employees concerned are Canadian citizens whose conditions of employment are basically governed by Canadian law makes them obvious.

     We add that the result appears to us to be only normal and fair: one should not be able to claim the protection of the Canadian flag and the benefit of Canadian laws without also submitting to the obligations and responsibilities that may be imposed by those laws and the entire legislation that relates to them.

     In conclusion, we believe that the Board's decision was correct in law. It does have jurisdiction in this case. The application shall be dismissed.

     "Louis Marceau"

     J.A.

     A-616-96

CORAM:      MARCEAU J.A.

     DESJARDINS J.A.

     CHEVALIER D.J.A.

IN THE MATTER OF THE CANADA LABOUR CODE, R.S.C. 1985, c. L-2, as amended,

AND IN THE MATTER OF AN APPLICATION FOR CERTIFICATION AS BARGAINING AGENT PURSUANT TO SECTION 24 OF THE CODE

BETWEEN:

     REDERIET A.P. MOLLER A/S

     Applicant

     - and -

     SEAFARERS' INTERNATIONAL UNION OF CANADA

     Respondent

Heard at Montreal, Quebec, on Thursday, January 30, 1997.

Judgment rendered from the Bench on Thursday, January 30, 1997.

REASONS FOR JUDGMENT OF THE COURT BY:      MARCEAU J.A.

     IN THE FEDERAL COURT OF APPEAL

     A-616-96

IN THE MATTER OF THE CANADA LABOUR CODE, R.S.C. 1985, c. L-2, as amended,

AND IN THE MATTER OF AN APPLICATION FOR CERTIFICATION AS BARGAINING AGENT PURSUANT TO SECTION 24 OF THE CODE

BETWEEN:

     REDERIET A.P. MOLLER A/S

     Applicant

     - and -

     SEAFARERS' INTERNATIONAL UNION

     OF CANADA

     Respondent

     REASONS FOR JUDGMENT

     OF THE COURT