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The Lawyer’s Daily reports on our recent Court of Appeal win

November 09, 2019

The Lawyer’s Daily talks to Ben Katz about Ramkey Communications Inc.

The Lawyer’s Daily has reported on one of our recent Court of Appeal victories.

The case began when the Labourers’ union applied to certify a bargaining unit of construction labourers employed by Ramkey Communications. The application was made under the special construction industry provisions of the Ontario Labour Relations Act.

Ramkey characterizes itself as a telecommunications contractor in the cable installation and service business, or as a vital, essential or integral part to telecommunications. Since telecommunications is a federally regulated industry, Ramkey maintained that it too was federally regulated, since it was “engaged, either directly or derivatively, in a federal work or undertaking” – namely telecommunications. Consequently, it said, the Ontario Labour Relations Board did not have jurisdiction to certify the union.

The Ontario Labour Relations Board disagreed with Ramkey, and certified the union. However, the Divisional Court overturned the Board’s decision on judicial review. The court held that the communications network could not function without the work done by Ramkey, and therefore, like the telecommunications companies, Ramkey’s labour relations should be federally regulated.

However, in a decision released on November 1st, the Court of Appeal disagreed and reinstated the decision of the Board.

The Court of Appeal held that the Divisional Court erred in its approach to the test for determining “derivative jurisdiction”:

…[T]he Divisional Court erred by considering the extent to which the delivery of telecommunications services by Rogers and other telecommunications companies like Rogers was dependent on having a functioning network line and on work of the type performed by Ramkey’s construction technicians. The proper focus is the extent to which Rogers and the other telecommunications companies, to which Ramkey’s construction technicians provided construction services, were dependent on the services of Ramkey’s construction technicians — the particular employees under scrutiny.

The Lawyer’s Daily spoke to Ben Katz about the Court of Appeal’s decision:

Ben Katz, an associate with Goldblatt Partners LLP and counsel for the appellant with Lorne Richmond, said this decision focuses on a “relatively narrow question” of whether a specific company was subject to the federal jurisdiction for its labour relations on the basis of the derivative jurisdiction test.

“There is a presumption that labour relations are provincially regulated unless the entity that’s under scrutiny is itself a federal undertaking, which in this case Ramkey was not. Or there’s this very limited carveout from that, what they call derivate jurisdiction, which is when the entity under scrutiny is vital, essential, integral to a federal undertaking. What the Court of Appeal case really focuses on is how to make that assessment and what the court emphasizes is that in order … for Ramkey to fall into that narrow exclusion, the important question is whether and to what extent, Rogers, the federal undertaking, is dependent on Ramkey for the effective performance of the federal undertaking itself,” he explained.

Katz said that the court noted the important question is “not how important is Rogers as a client for Ramkey, but how important is Ramkey, in the work that the specific employees in question are doing, to the performance of the telecommunications network.”

“And that emphasis in the Court of Appeal’s decision specifically overturned the Divisional Court and provides more clarity to this question for lawyers who are practising in this area going forward,” he added.

Read the entire article here.


Ben Katz

Practice Areas

Construction Labour Relations