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Provincial Laws and Airport Construction
Published in the December 2008 issue of Transportation Notes - View Article
Under Canada’s Constitution, the power to legislate in respect of aeronautics rests exclusively with the federal government while the provinces have jurisdiction in respect of the regulation of health and safety in the workplace. Separate enactments passed by the federal and provincial governments have often come into conflict and the airport has often been the scene of turf wars. The most recent presented the following question: What is to happen when a province enacts legislation which affects persons employed on airport property and engaged in works related to aeronautics?
Canadian constitutional law recognizes the possibility of coexisting enactments from each of the two levels of government. Thus, if a provincial statute has what is deemed to be a “merely incidental” effect on a company which is primarily subject to federal jurisdiction, there is no reason to disallow the provincial statute. However, there are circumstances in which the two legislative regimes cannot stand together. Determining when that state of things has been reached, and what the consequences should be, is the subject of the doctrine of interjurisdictional immunity. This doctrine has been used to render inapplicable provincial enactments which are found to have invaded the “basic, minimum and unassailable content” of valid federal legislation.
The doctrine of interjurisdictional immunity has received a good deal of attention lately, the Supreme Court of Canada having most recently weighed in on the ambit of the doctrine in May of 2007. The key question is whether the impugned legislation “impairs”— which is more than “affects” but less than “sterilizes”— an important objective of the federal legislation in a way which places the core competence of the federal scheme in jeopardy.
The facts in R. v. EllisDon Construction Ltd. arose against this constitutional background. The international airport at Toronto has been the scene of major construction for some years now. The Greater Toronto Airports Authority (GTAA) operates the airport under a long term lease and has overall responsibility for the construction. It awarded the general contract for the expansion of Terminal 3 to EllisDon and the latter entered into a number of subcontracts. A sub-sub-contractor, Blenkhorn, was responsible for structural steel work. One of Blenkhorn’s employees was injured on the job and the province took the position that it had the authority to investigate and lay charges under the Ontario Occupational Health and Safety Act. It did so and charges were laid against the general contractor, Blenkhorn, and employees of each. The accused objected on the basis that provincial jurisdiction was ousted as their activities were closely integrated with an aeronautical undertaking. This argument succeeded at first instance but was overturned on an intermediate appeal. The Ontario Court of Appeal has now upheld the intermediate appeal and affirmed that the provincial health and safety legislation does not do such violence to the federal scheme for the regulation of aeronautics as to require the province to step aside.
The construction companies and their employees faced a formidable barrier as they launched their argument. Twenty years ago, almost to the date, the Supreme Court of Canada affirmed that a provincial legislature can enact legislation affecting labour conditions, including regulation of wages, which is binding on employees engaged in airport construction. Although there was a respectable dissent in the case of Construction Montcalm Inc. v. Minimum Wage Commission, its holding has generally been accepted as the law of Canada for two decades. In an attempt to avoid the obvious problem posed by Montcalm, the construction companies called attention to the fact that the earlier case involved the original construction of an airport whereas they were involved in a very complicated project which required that they coordinate their efforts with the airport authority to allow the continued operation of a functioning airport while the construction was underway. This arrangement implied a much closer “physical and operational connection” with the airport authority. It was common ground that the provincial occupational health and safety legislation could not apply to the airport authority because of the latter’s vital connection to the operation of the airport. The construction companies argued that it would be folly to apply the scheme to them. They pointed to the possibility that provincial investigators might, for example, decide to “shut down all or part of the airport to uphold provincial safety standards in the event of a serious accident”.
It appears to us that there could be some attraction in such an argument. Unfortunately for the contractors, the airport authority pulled the rug out from under them. The GTAA actually agreed with the province that the contractors engaged in the project should be subject to the provincial legislation. The Court found this a “particularly telling” point. Before reaching this decisive point, the Court reviewed other factors which are to be taken into account when considering whether the doctrine of interjurisdictional immunity is available. All weighed against the construction companies. While the companies had significant experience with airport projects they were, first and foremost, construction companies. They did not have a division of employees dedicated to airport work and had no corporate relationship with the GTAA. In the case of Blenkhorn, some 29% of its work was airport related. EllisDon’s was considerably lower. An earlier case had suggested that anything much below 80% would indicate an insufficient weighting in the federally regulated undertaking to invoke interjurisdictional immunity.
In response to the “ace” of the construction companies—that they needed to coordinate very closely with the GTAA to keep the airport open—the opposition countered that what the GTAA was telling them was not “work with us to run this airport” but rather “keep out of the way”. The fact that the GTAA did not itself claim interjurisdictional immunity for its contractors seemed to lend support to this characterization of its view of their role.
R. v. EllisDon Corporation Ltd.,
2008 ONCA 789