Canadian Payroll Reporter

NOVEMBER 2013 Activities cross boundaries Taken literally, these words mean the employment has to physically oc• television, radio and telephone broadcur within the boundaries of a province, casting, including cable and wireless before that province's employment stan• banks. dards apply. Some constitutional law experts have argued that these words need Specific activities that cross to be understood more liberally, to reflect provincial/national boundaries sufficient province interest in the em• railways, telegraph, canals and truckployment. Similarly, the Supreme Court ing companies of Canada has argued that incidental or • drilling rigs or mineral exploration consequential application outside a provplatforms on Canada's continental shelf ince will not by that fact alone invalidate • ferries, such as the ones between Newthat province's jurisdiction. foundland and the mainland. The difficulty with this test for "in For example, couriers are provincially the province" is that there are situations regulated, when they make pickups and where the employment may not be redeliveries within a single province or terstricted to a single province. ritory. Similarly, employment on coastal We are all familiar with the concept fishing boats is provincially regulated, of employees who don't report for work since this is not "shipping or transporto an employer permanent establishment tation" — moving and are paid out of goods or people. By such an establish"If employment outside a contrast, long-disment in a province tance trucking, such different from the province is occasional or as taking Ontario one where they live infrequent, it's reasonable car parts to Michiand perform emto assume that province gan, is federally ployment services. regulated, since this In this case, is has the right to govern the means crossing the the "employment" employment." Canadian border. located in the provIn most cases, ince where services it's clear whether an activity is federally are performed or is the employment regulated. Banks are listed in schedules the relationship that spans provincial to the federal Bank Act. If a company is boundaries? It seems the accepted unon that list, the employment is federally derstanding is that the location of emregulated. If not on that list, as for credit ployment is determined based on the unions and trust or loan companies, emlocation where services are performed. ployment is provincially regulated. Similarly, what happens when an However, it's not always clear what employee who reports to work at an the boundary is between federal and employer establishment in one province provincial employment standards regualso occasionally travels and performs lation. Federal jurisdiction also includes employment services elsewhere? employment "in connection with the opThe answer seems to be that if emeration" of a federal work. In practice, ployment outside a province is occathere will always be a good deal of room sional or infrequent, it's reasonable to for understanding what this means. For assume that province has the right to example, a retail store located in an airgovern the employment. For example, port is to some extent "in connection the Ontario employment standards with the" airport. Is that connection claim jurisdiction over employment outstrong enough to mean employment in side that province, which is a "continuasuch stores is federally regulated? tion" of employment within Ontario. If not federally regulated, employOn this basis, if an employee normalment is under provincial jurisdiction by ly works in Ontario but spends the odd virtue of the exclusive provincial jurisday working in British Columbia, for diction over "property and civil rights employment standards purposes, that in the province." Note, this authority is work doesn't fall under B.C.'s jurisdicrestricted to "in the province." tion but that of Ontario. Continued from page 9 12 Canadian HR Reporter, a Thomson Reuters business 2013 www.payroll-reporter.com Published 12 times a year by Thomson Reuters Canada Ltd. 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