Court of Appeal of Quebec

Madysta Télécom Ltée c. Commission des normes, de l’équité, de la santé et de la sécurité du travail

200-10-003556-185

Dutil, Giroux, Gagnon

Appeal from a judgment of the Superior Court allowing an appeal from a judgment of the Court of Quebec acquitting the appellant of an offence under the Safety Code for the Construction Industry (CQLR, c. S-2.1, r. 4) and the Act respecting occupational health and safety (CQLR, c. S-2.1) (OHSA). Dismissed.

The appellant is a company specializing in the installation, commissioning and maintenance of the equipment necessary for the operation of the cellular networks of four telecommunications companies. The Commission des normes, de l’équité, de la santé et de la sécurité du travail (CNESST) alleged that it failed, in its capacity as the principal contractor on a construction site, to properly shore up the banks of an excavation, thereby violating the first paragraph of section 3.15.3 of the Safety Code for the Construction Industry and section 236 of the OHSA. The trial judge acquitted the appellant of the offence on the ground that these statutory provisions were constitutionally inapplicable to it because it is under derivative federal jurisdiction. The Superior Court allowed the CNESST’s appeal and convicted the appellant of the offence. It found that the appellant company was under provincial jurisdiction and subject to the provisions of the Safety Code for the Construction Industry and the Act respecting occupational health and safety.

A federal undertaking cannot be a sector of activity or a group of companies. The appellant had to designate one discrete federal company – that is, only one of its clients – to which it is related, which it did not succeed in doing. The appellate judge did not err in finding that the appellant had to be an integral part of only one federal telecommunications corporation or company to fall under derivative federal jurisdiction.

The percentage of work that the appellant performs for each of its clients, which varies significantly from one year to another, is not sufficient to conclusively establish that it falls under federal jurisdiction. Although the Court disagrees with the opinion of the appellate judge, who concluded that the percentage of the appellant’s activities performed for the federal company should represent at least 80% of its sales, he did not make an overriding error in this regard. While there is no specific number that must be reached to find that a related company has been integrated into a federal company, the proportion of work performed for the federal company must nevertheless be high.

In light of the criteria established by the Supreme Court, the relationships between the appellant and its clients are, at the most, mutually advantageous commercial relationships. None of the appellant’s clients, considered separately, is dependent on the appellant. The appellant’s activities are perhaps important for its clients’ operation, but not so much so as to make them dependent on it. Its functional integration within any one of the four companies is insufficient for the doctrine of derivative federal jurisdiction to apply.

*Summary by SOQUIJ
Text of the decision: Http://citoyens.soquij.qc.ca

 

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