50478 Ontario Ltd. et al. and Great Lakes Fishermen &
Allied Workers' Union et al.; Attorney-General of Ontario,
56 O.R. (2d) 781
Also reported at 31 D.L.R. (4th) 765
 O.J. No. 915
HIGH COURT OF JUSTICE
19TH SEPTEMBER 1986
Employment -- Labour Relations Board -- Judicial review -- Application to determine scope of board's jurisdiction on constitutional grounds before board ruled on issue -- Application premature.
The applicant sought a declaration pursuant to rule 14.05, that the Ontario Labour Relations Board had no jurisdiction to conduct a certification vote because the employer's operations were within federal jurisdiction. The board had not determined the objections to its jurisdiction before the application was brought.
Held, the application should be dismissed, as it was premature. There were disputed facts and the matter did not fall within the rule.
Cases referred to
Re Windsor Airline Limousine Services Ltd. and Ontario Taxi Ass'n 1688 et al. (1980), 30 O.R. (2d) 732, 117 D.L.R. (3d) 400; Montcalm Construction Inc. v. Minimum Wage Com'n et al. (1978), 93 D.L.R. (3d) 641,  1 S.C.R. 754, 25 N.R. 1, 79 C.L.L.C. D7819981814,190; Northern Telecom Ltd. v. Communications Workers of Canada (1979), 98 D.L.R. (3d) 1,  1 S.C.R. 115, 28 N.R. 107; Re Danson and A.-G. Ont. (1985), 51 O.R. (2d) 405, 20 D.L.R. (4th) 288, 2 C.P.C. (2d) 109; affd 55 O.R. (2d) 1, 27 D.L.R. (4th) 758
Statutes referred to
Constitution Act, 1867, s. 91(12)
Judicial Review Procedure Act, R.S.O. 1980, c. 224, s. 2(1)
Labour Relations Act, R.S.O. 1980, c. 228
Rules and regulations referred to
Rules of Civil Procedure, rule 14.05
APPLICATION for a declaration under rule 14.05.
R. G. Colautti and B. P. Nolan, for applicants.
Laurence P. Arnold, for respondent, Great Lakes Fishermen & Allied Workers' Union.
R. J. Rolls, Q.C., for respondent, Ontario Labour Relations Board.
Peter Jervis, for intervenant, Attorney-General of Ontario.
SIROIS J. (orally):-- This is an application for a declaration under rule 14.05 that the certification proceedings commenced under the Ontario Labour Relations Act, R.S.O. 1980, c. 228, in relation to the named parties are ultra vires and for a declaration that the labour relations between the parties are within the exclusive jurisdiction of the federal Parliament under s. 91(12) [of the Constitution Act, 1867].
The relief sought on this application is based upon the same objections to jurisdictions that were raised by the applicant before the Ontario Labour Relations Board with respect to the same set of circumstances. Although the board has scheduled a certification vote to take place in mid-September it has not yet made any formal ruling or finding as to the jurisdictional issue raised on behalf of the applicants.
The respondents on this motion raised their preliminary objection to the motion before me that it is premature as the board has not yet made any finding and that I should exercise my discretion to dismiss the application. In the alternative, it is stated also that this should be by way of a judicial review since what the applicant is seeking indirectly is in the form of prohibition or certiorari or in the alternative a declaration. The three of these remedies are covered by s. 2(1) of the Judicial Review Procedure Act, R.S.O. 1980, c. 224.
I am greatly assisted by the decision of the Divisional Court where the factual situation was very similar in the case of Re Windsor Airline Limousine Services Ltd. and Ontario Taxi Ass'n 1688 et al. (1980), 30 O.R. (2d) 732 at p. 735, 117 D.L.R. (3d) 400 at pp. 403-4, Reid J. states:
The Board's extensive consideration of the constitutional issue in this case was helpful to me at least, and I believe to my colleagues on this Court, when the matter came here for resolution. I think it is helpful in general to have a tribunal address itself to an issue of this type. Among other things, it conduces to the elicitation of the facts relevant to the issue. We might be wholly without them if the tribunal simply threw up its hands and left the issue to the Courts. The result here, however, was extensive reasons with all the relevant facts set out and the relevant decisions reviewed.
Then the Honourable Justice refers to jurisprudence including Montcalm Construction Inc. v. Minimum Wage Com'n et al. (1978), 93 D.L.R. (3d) 641,  1 S.C.R. 754, 25 N.R. 1, with which I will deal in a second.
I adopt this statement and I find it particularly applicable to the present case. Although the applicant states the facts are not in dispute, this point was not conceded by the respondents who submit rather that the final determination of jurisdiction will require a thorough review of the facts. Indeed in Northern Telecom Ltd. v. Communications Workers of Canada et al. (1979), 98 D.L.R. (3d) 1,  1 S.C.R. 115, 28 N.R. 707, Dickson J. in adopting the words of Mr. Justice Beetz in the Montcalm case, supra, states at p. 18 of that report:
... "one must look at the normal or habitual activities of the business as those of a 'going concern', without regard for exceptional or casual factors" and the assessment of those "normal or habitual activities" calls for a fairly complete set of factual findings.
Further, Professor Hogg, in his book Constitutional Law of Canada, 2nd ed. (1985), states the matter clearly at p. 465:
If certification is opposed on constitutional grounds, the labour board must decide the issue of "constitutional jurisdictional fact" that is thereby raised: do these employees form an integral part of a federal undertaking? So long as the labour board asks itself the right question, it is surely prudent for the courts to defer to the judgment of the board, informed as it will be by a closer and more expert examination of the facts.
The applicant relies on Rule 14 as applied by McRae J. in Re Danson and A.-G. Ont. (1985), 51 O.R. (2d) 405, 20 D.L.R. (4th) 288, 2 C.P.C. (2d) 109. That case is distinguishable. The appeal thereof to the Divisional Court is reported in 55 O.R. (2d) 1, 27 D.L.R. (4th) 758. The decision of the majority is given by Osler J. He states at p. 3 O.R., p. 761 D.L.R.:
In the view I take of the inherent jurisdiction of this Court, I agree that any of the powers normally and historically exercised by this Court and its predecessors may continue to be exercised unless otherwise provided by statute. Normally, however, if a particular manner of exercise is prescribed, that manner should be followed and the inherent jurisdiction resorted to only where the matter is one that should be dealt with and cannot be satisfactorily disposed of in the manner prescribed, whether by rule or statute.
I note that in this case there is a procedure prescribed by statute. It is by way of reference to the Ontario Labour Relations Board.
The court then went on to distinguish between what may be called adjudicative facts, that is, matters external to the statutes or other documents which the court is called upon to construe, and legislative facts by which term it meant simply the documents or rules themselves, and at p. 4 O.R., p. 761 D.L.R.:
As I interpret rule 14.05(3)(h), there is no requirement that there shall be adjudicative facts present and that they shall not be disputed. Rather, the meaning is that, if there are such adjudicative facts, unless they are undisputed the matter does not fall within the rule.
Therefore in this case there are disputed facts and the matter does not fall within this rule.
I find therefore that this court should not interfere with the expertise of the board to establish its own jurisdiction even on the constitutional question of jurisdiction. I must therefore dismiss the application.
I have endorsed the record: "For oral reasons the application is premature and dismissed without costs."