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Tuesday, November 19, 2019 @ 8:30 AM  

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Application by Amec Foster Wheeler Americas Ltd. (Amec) for judicial review, seeking to quash a decision of the Ontario Labour Relations Board. In early 2017, the respondent unions filed construction industry applications for certification with the Board in respect of Amec employees working at a project at Port Granby, Ontario. The Port Granby Project was one of two projects that made up the Port Hope Area Initiative (PHAI), which commenced in 2001. The PHAI was a federal government project for the long-term management of historic low-level radioactive waste. The entire project was undertaken pursuant to a waste nuclear substance licence that was first issued to Atomic Energy Canada Limited and then to Canadian Nuclear Laboratories Ltd. (CNL) by the Canadian Nuclear Safety Commission. Amec, an international organization, was one of several subcontractors engaged by CNL to perform different aspects of the work at Port Granby. The Board granted the applications for certification brought by the respondent unions, concluding that the labour relations of Amec came within provincial jurisdiction. Amec took the position that the Board erred in finding that provincial labour relations law applied in this case. Amec submitted that it was subject to federal labour relations legislation, either because it was a federal undertaking, or because it performed essential and vital work for a federal undertaking, resulting in derivative jurisdiction.

HELD: Application dismissed. Labour relations were presumptively a matter of provincial jurisdiction. Federal regulation of labour relations was exceptional and arose only where necessary to ensure an integral element of federal legislative competence. Although Amec argued that it was in “possession” of nuclear substances, its physical possession was not enough to make Amec a federal undertaking. An examination of the operations of Amec as an ongoing concern demonstrated that Amec was not a work or undertaking that was constructed for the possession of nuclear waste. Amec was in physical possession of the nuclear waste only because of the contract with CNL, the licensee in charge of the project. Amec was involved with nuclear substances only on a temporary basis while it performed part of its contract. As a result, Amec was not subject to direct federal jurisdiction as a federal work or undertaking. Amec had no ongoing role in the operations of the nuclear waste management facility. The Board correctly concluded that Amec was not performing an essential or vital role in the operations of the federal undertaking, nor was its activity integral to the operation of the nuclear waste management facility. Accordingly, this was not a case where the doctrine of derivative jurisdiction applied.

Amec Foster Wheeler Americas Ltd. v. Labourers' International Union of North America, [2019] O.J. No. 4930, Ontario Superior Court of Justice - Divisional Court, K.E. Swinton, N.L. Backhouse and H.J. Wilton-Siegel JJ., October 1, 2019. Digest No. TLD-November182019005