A Refresher On First Principles: When Will The Province's Presumptive Labour Jurisdiction Be Displaced By 'Derivative Jurisdiction'?

It is well known that Ontario has presumptive constitutional jurisdiction over labour relations within its boundaries. However, in rare instances, this constitutional jurisdiction may be displaced through the operation of "derivative jurisdiction" such that federal labour laws would apply. In the recent decision, Ramkey Communications Inc. v Labourers' International Union of North America, 2019 ONCA 859, the Court of Appeal for Ontario assessed whether exceptional federal jurisdiction could be found. In doing so, the Court of Appeal for Ontario reconfirmed that the presumptive constitutional jurisdiction of the provincial government will not be displaced unless an otherwise provincial function (i) relates to a work, undertaking, or business within the legislative authority of the federal government; or (ii) is an integral part of a federally regulated undertaking.

Background

The Labourers' International Union of North America, Ontario Provincial District Council, applied to the Ontario Labour Relations Board for certification of all Ramkey Communication Inc.'s construction labourers - referred to as "construction technicians" - employed in six Ontario counties, subject to certain exceptions. Opposing certification, Ramkey argued that its construction technicians performed essential work for federally regulated telecommunications companies which meant that their labour relations should be federally regulated.

The construction technicians worked on Rogers' telecommunications network closer to the headend, where the signals originate. At the time of certification, Rogers was Ramkey's main client, with the construction work for Rogers accounting for 10-13% of Ramkey's revenues. For the construction technicians, the work with Rogers represented the bulk of their work. However, despite being Ramkey's main client, Rogers always had more than one contractor in the geographic areas where it operates. Moreover, during the hearing before the Board and for reasons unrelated to the proceeding, Rogers ceased all the construction work it had given to Ramkey. 1

The Ontario Labour Relations Board and Divisional Court Decisions

The Board granted certification as a provincially regulated bargaining, because it was not satisfied that the presumption of provincial jurisdiction was displaced. Ramkey disagreed and sought judicial review. Prior, to the judicial review, Ramkey received a letter from the federal government's Employment and Social Development Canada...