Airport construction falls under provincial jurisdiction: Court

Airport construction project was separate from federally-regulated airport operation

Two construction companies working on a federal project are not exempt from provincial labour and safety legislation, the Ontario Court of Appeal has ruled.

EllisDon Corp. had been involved in construction work for various projects at Toronto’s Pearson International Airport since 1989 and it was hired by the Greater Toronto Airport Authority (GTAA) to be the general contractor for the airport’s expansion of one of its terminals in November 2001. EllisDon subcontracted the terminal’s structural steel work to Blenkhorn-Sayer Structural Steel Corp. Blenkhorn had worked on construction projects at the airport since 1999.

Companies charged under provincial health and safety legislation

On May 13, 2002, a Blenkhorn worker was seriously injured after a fall at the airport construction site. The Ontario Ministry of Labour investigated the accident and laid charges under the Ontario Occupational Health and Safety Act (OHSA) against EllisDon and one of its employees as well as Blenkhorn and two of its employees.

The trial court dismissed the charges, finding the province didn’t have jurisdiction over the site because the construction work was extensively interwined with the GTAA and its operation of the airport through supervision and co-ordination of the construction work and the operation of the airport. As a result, the operation of EllisDon and Blenkhorn was “of a vital, essential, an integral nature to the operation of the airport” and fell under federal jurisdiction.

The trial court’s finding was based on the constitution’s stipulation that the federal government has exclusive jurisdiction over federal works and aeronautics. The GTAA’s operation was related to aeronautics and was a federal project. Where provincial law relating to labour relations and employment conditions intrudes on a “protected core” of federal jurisdiction that is vital, essential or integral to a federal undertaking, the federal undertaking is immune from the provincial law.

Construction project not part of federally-regulated operations: Court of Appeal

The Ontario Ministry of Labour appealed the decision and the application judge struck down the original ruling. The judge found the trial court had not considered EllisDon’s and Blenkhorn’s operations has a whole and had erred in finding their work as integral to the operation of the airport. As a result, the application judge found the companies should be subject to the OHSA.

The case went to the Ontario Court of Appeal, which agreed with the applications judge. The court found only a small part of the companies’ business was involved in the airport construction project — between three and 15 per cent of EllisDon’s business and 29 per cent of Blenkhorn’s business. Neither company had a separate division for airport work and employees moved from airport work to other projects, where they were under provincial jurisdiction. To have them under different jurisdictions as they moved between projrcts would be inconsistent and “haphazard,” the court said.

The court also found the construction work, though it required co-ordination with the GTAA to avoid interfering with normal airport activities, was done alongside the operation of the airport, not as part of it.

“Keeping out of the way of the operation of the airport is really the opposite of being integral to that operation,” the court said. “The construction work carried on by the (companies) during the expansion project was quite separate and distinct from the operation of the airport.”

The court ruled the safety standards of the OHSA pertained to the construction work and did not affect the federal authority over aeronautics and the GTAA’s operation of the airport. It dismissed the companies’ appeal and found the OHSA applied to both EllisDon and Blenkhorn’s construction work.

For more information see:

R. v. EllisDon Corporation Ltd., 2008 ONCA 789 (Ont. C.A.).

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