Certification Application Dismissed: Employer's Operations Provincially Regulated

Reasons for decision United Food and Commercial Workers Canada Union, applicant, and [COMPANY]., respondent. Board File: 038786-C Neutral Citation: 2026 [NAME] 1234 March 27, 2026 The panel of the [NAME] (the Board) was composed of [NAME], Chairperson, sitting alone pursuant to section 14(3) of the Canada Labour Code (the Code ). Section 16.1 of the Code provides that the Board may decide any matter before it without holding an oral hearing. Having reviewed all of the material on file, the Board is satisfied that the documentation before it is sufficient for it to determine this matter without an oral hearing. Counsel of [NAME], for the United Food and Commercial Workers Canada Union; [NAME], for [COMPANY].

I. Nature of the Application and Background [ 1 ] On June 20, 2025, the United Food and Commercial Workers Canada Union, Local No. 401 (the union or the applicant) filed an application for certification, seeking to represent the following group of employees of [COMPANY]. ([NAME] or the employer): All drivers and dispatch employees working for [COMPANY]. in British Columbia, Alberta, Saskatchewan and Manitoba. [ 2 ] Following exchanges between the parties and the investigation conducted by the Board’s officer, the parties agreed to the following bargaining unit description: All drivers employed by [COMPANY]. based out of its distribution centre in [NAME], Alberta. [ 3 ] Specifically, the parties agreed to exclude dispatchers from the proposed bargaining unit and also agreed to exclude an individual based on his lack of sufficient continuing connection with the bargaining unit on the date of the certification application. [ 4 ] However, the parties disagree on whether the Board has constitutional jurisdiction over the employer’s activities. [ 5 ] In its response to the certification application dated June 30, 2025, the employer initially took the position that its activities fell within federal jurisdiction. After the parties agreed on the proposed bargaining unit, the employer changed its position. On July 9, 2025, the employer advised the Board that, upon careful review, it considered that its operations fell under provincial jurisdiction. [ 6 ] Following this change of position, the union filed a certification application with the Alberta Labour Relations Board (the ALRB) on July 10, 2025. On July 30, 2025, the ALRB adjourned the certification application before it, pending the Board’s determination of the present application. The employer applied for reconsideration of that decision, and on October 3, 2025, the ALRB dismissed the reconsideration application. [ 7 ] At the Board’s request, the parties provided additional evidence relevant to determining the constitutional status of the employer’s business.

II. Allegations of Abuse of Process A. The Parties’ Positions [ 8 ] Both parties accuse one another of abusing the Board’s process because of the positions they have taken in relation to the certification application. [ 9 ] For its part, the union requests that the employer’s objection to the Board’s jurisdiction be summarily dismissed because it was raised after the parties reached an agreement on the bargaining unit description. In the union’s view, the objection is untimely, and the employer’s change of position constitutes an abuse of process. [ 10 ] In reply, the employer argues that the applicant should not be entitled to “forum shop” and that it is an abuse of process for the applicant to advance parallel applications for certification under both the federal and provincial regimes. B. Decision on the Alleged Abuse of Process [ 11 ] The Board does not consider that there has been an abuse of process by either party in the circumstances. [ 12 ] Although the employer could have raised its constitutional objection at the first opportunity, and although its change of position after the exchange of submissions is not ideal, the Board must nevertheless satisfy itself that it has jurisdiction over the parties ( see East Coast Hydraulics & Machinery (2009) Limited  v.  [NAME]’s Association, Local 1976 , 2025 FCA 64). In fact, the Board may, at any time and on its own motion, question whether it has constitutional jurisdiction to deal with an application before it. Consequently, the Board rejects the union’s claim that the employer’s actions amount to an abuse of process. [ 13 ] Similarly, the Board finds that the union’s decision to file a certification application with the ALRB after the employer submitted its change of position on the constitutional issue does not constitute an abuse of process. It is not uncommon for unions to file certification applications in both the federal and provincial jurisdictions as a safeguard in circumstances of uncertainty or where constitutional jurisdiction is challenged by an employer. [ 14 ] As indicated above, the ALRB adjourned the certification application before it, pending the Board’s determination of the present application.

III. Constitutional Issue [ 15 ] The jurisdictional issue to be determined is whether [NAME]’s operations constitute a “federal work, undertaking or business” subject to the Code . [ 16 ] For the reasons set out below, the Board has determined that [NAME] is a provincially regulated business.

Accordingly, the Board has no jurisdiction to deal with the certification application.

IV. Constitutional Facts [ 17 ] The main purpose of [NAME] is the transportation of food products, as directed by [COMPANY]. (DF Canada), to and from DF Canada’s distribution centres located in [NAME], Alberta, and Ingersoll, Ontario. [ 18 ] DF Canada is engaged in the purchase, warehousing and sale of food products. [ 19 ] [NAME] and DF Canada have common ownership. They are both affiliates under the [NAME] corporate structure. Specifically, [NAME] is a subsidiary of [COMPANY]. (a U.S. corporation), and DF Canada is a subsidiary of [COMPANY]. (a U.S. corporation). Both U.S. parent companies are owned by a holding company based in the United States. [ 20 ] [NAME] and DF Canada have common executive management. From the organizational chart provided by the employer, it appears that the highest position within [NAME], the director of transportation, reports to the president of [COMPANY]., who in turn reports to the president of [COMPANY]. Similarly, for DF Canada, its director of warehousing reports to the regional general manager – Canada, who in turn reports to the vice-president of the distribution centres of [COMPANY]. In simple terms, the organizational structures of both [NAME] and DF Canada are interrelated and fall under the responsibility of the executives at [COMPANY]. [ 21 ] [NAME] and DF Canada operate out of the same locations in [NAME]. Their administrative and support staff work from the same offices. [ 22 ] [NAME] shares human resources services with DF Canada, provided by a human resources employee who is employed by DF Canada. [NAME] and DF Canada also share finance, accounting, payroll, benefits, legal and other management and administrative services provided by [COMPANY]. [ 23 ] [NAME] is the exclusive transportation affiliate for DF Canada. [NAME] began its operations in 2019, a few years after DF Canada entered the market, when it was determined that DF Canada’s business justified establishing an affiliated transportation service in Canada. [ 24 ] DF Canada is the owner of all goods transported by [NAME], except in the case of “back-haul” transportation, as described below. [ 25 ] DF Canada owns and operates the distribution centres. It employs warehouse, distribution, sales, business development and warehouse administrative support employees. [ 26 ] When selling products to its customers, DF Canada includes delivery as part of the sale. DF Canada selects its suppliers and the products to be transported and determines customer pricing. The warehouse employees of DF Canada are responsible for receiving customer orders and for storing and staging the products for delivery. DF Canada employees are also responsible for loading and unloading [NAME] trailers. [ 27 ] [NAME]’s drivers are based at one of the two distribution centres. [NAME] owns or leases trucks and trailers for its transportation activities. [ 28 ] [NAME]’s drivers are engaged in interprovincial and international transportation of food products owned by DF Canada, on a regular and continuous basis. [ 29 ] [NAME] picks up certain products from suppliers located in Canada and the United States and transports them back to the [NAME] distribution centres. [ 30 ] [NAME] also transfers products between the [NAME] distribution centres. To accomplish these interfacility transfers, [NAME] dispatches a [NAME] and an [NAME] to a “drop and hook” location, approximately midway between the two distribution centres. At that connection point, the [NAME]-based [NAME] and the Ingersoll-based [NAME] exchange trailers and transport them back to their respective distribution centres. [ 31 ] [NAME] also regularly dispatches Ingersoll-based drivers to deliver loads directly to the [NAME] distribution centre. [ 32 ] [NAME] also picks up products from the [NAME] distribution centres to deliver them to DF Canada’s customers. [ 33 ] The drivers based out of the [NAME] distribution centre serve a geographic area that includes Alberta, British Columbia and portions of Saskatchewan. They also regularly pick up and transport products from suppliers located in the United States. [ 34 ] For their part, the drivers based out of the Ingersoll distribution centre regularly serve portions of Saskatchewan, all of Manitoba and all provinces east of Manitoba, with regular overlapping territories with [NAME]-based drivers. [ 35 ] Invoices are generated internally between [NAME] and DF Canada to bill transportation activities from one entity to the other, as part of their accounting practices, with invoiced amounts set at fair market value. [ 36 ] [NAME] organizes its daily operations (such as routes) based on sales information provided by DF Canada. [NAME] must fulfill all delivery requests from DF Canada, to the extent possible. [ 37 ] [NAME] does not sell or advertise services independently to DF Canada’s customers. DF Canada and its customers determine the products to be delivered or picked up, and [NAME] has no input in such decisions. [NAME] is directed to carry out deliveries at DF Canada’s request, in the most efficient and economical manner possible. [ 38 ] In addition to the services it provides to DF Canada, [NAME] performs a small amount of back-haul transportation for unrelated third parties. Back haul refers to transportation services performed by [NAME] for other third-party companies. [ 39 ] Most of [NAME]’s back-haul activities are either interprovincial or international. [ 40 ] [NAME] performs back-haul deliveries to defray costs when it delivers products to a customer but does not have a load for the return trip to the distribution centre. The purpose of back-haul deliveries is to avoid empty trips when returning the trailers to the distribution centres. [NAME] has no dedicated or regular back-haul routes or customers. Back-haul activities are secured one load at a time upon [NAME] successfully bidding to obtain loads. When [NAME] is not successful in obtaining a load, the [NAME] will return with an empty trailer. [ 41 ] For the two-year period preceding December 2025, the evidence shows that [NAME] operated the following back-haul activities (per mile) during the 13 identified four-week periods each year: [NAME] as Percentage of Total Miles 2023 (Period 12) to 2025 (Period 12) Year/[NAME] Miles % Back Haul 2023 183,184 1,045 0.6% 12 102,227 1,045 1.0% 13 80,957 - 0.0% 2024 2,070,441 43,087 2.1% 1 106,391 2,220 2.1% 2 106,703 4,189 3.9% 3 103,860 6,633 6.4% 4 111,253 6,877 6.2% 5 116,488 5,631 4.8% 6 136,559 3,598 2.6% 7 158,666 - 0.0% 8 171,831 - 0.0% 9 192,669 - 0.0% 10 201,133 746 0.4% 11 210,980 1,492 0.7% 12 228,416 3,223 1.4% 13 225,491 8,478 3.8% 2025 3,182,098 21,960 0.7% 1 185,298 3,230 1.7% 2 230,681 6,267 2.7% 3 234,865 5,336 2.3% 4 265,242 4,970 1.9% 5 285,407 1,174 0.4% 6 271,407 - 0.0% 7 289,333 - 0.0% 8 286,654 983 0.3% 9 294,427 - 0.0% 10 295,619 - 0.0% 11 285,855 - 0.0% 12 257,310 - 0.0% 13 - Grand Total 5,435,723 66,092 1.2% V. Positions of the Parties on the Constitutional Issue A. The Employer [ 42 ] The employer takes the position that the Board lacks jurisdiction because [NAME]’s transportation activities are limited to servicing DF Canada, a provincial undertaking engaged in the purchase, warehousing and sale of food products. [ 43 ] The employer submits that its core business is the delivery of products from an affiliated company and that it is not a transportation undertaking. [ 44 ] In support of its position, the employer relies on the following authorities: [NAME], a Division of [NAME] , 2013 [NAME] 689 ( [NAME] ); [COMPANY]., d.b.a. [NAME] , 2014 [NAME] 714 ( [COMPANY] ); [COMPANY] ., 2012 [NAME] 640 ( Schnitzer) ; and [NAME], Local 625 v. [COMPANY]./[NAME] , 2019 CanLII 2327 (ON LRB) ( [COMPANY] ). [ 45 ] In the employer’s view, its operations depend entirely on DF Canada. [NAME] and DF Canada work together, performing distinct functions to support DF Canada’s business. Apart from occasional back-haul loads, the employer argues that all its activities consist of providing pick-up and delivery services to DF Canada. [ 46 ] Regarding the back-haul activities, the employer contends that they are neither dedicated nor regular. The employer states that in the two-year period identified in the table above, they accounted for 2.1 percent in 2024 and 0.7 percent up to December 2025, representing a tiny fraction of [NAME]’s activities. The employer submits that [NAME] performs limited back-haul transportation for unrelated third parties from time to time, to improve the economic efficiency of its food delivery service, but that such activities are incidental to its business and represent only a small fraction of the work performed by its drivers. B. The Union [ 47 ] The union maintains that the employer falls within federal jurisdiction and relies on prior Board decisions where it found transportation to be a federal undertaking. [ 48 ] The union does not accept that DF Canada is transporting its own goods. The union states that DF Canada purchases food products from suppliers only to transport them to predetermined retailers. It argues that a buyer is already lined up and that, as such, the factual situation cannot be compared to that of retail companies under provincial jurisdiction, such as [NAME] or Canadian Tire, that transport their own products to their own retail outlets. Hence, the union submits that the customer is not purchasing DF Canada’s products but the retailers’ products. As such, the union argues that DF Canada must be viewed as that of a common carrier falling within federal jurisdiction. [ 49 ] The union submits that the evidence of the back-haul trips meets the regular and continuous test, regardless of the percentage of [NAME]’s overall trips that they represent. The union argues that DF Canada performed 136 back-haul trips between October 2024 and October 2025 and that these trips are consistent and recurring. The union stresses that the percentage of back-haul trips is not a relevant consideration for the regular and continuous test.

VI. Analysis and Decision [ 50 ] Labour relations presumptively fall under provincial jurisdiction. The federal government has jurisdiction over labour relations and working conditions only by way of exception (see [NAME] Ltée v. Quebec (Commission de la santé et de la sécurité du travail) , 2012 SCC 23, at paragraph 11 ( [NAME] ); and NIL/TU,O Child and Family Services Society v. B.C. Government and Service Employees’ Union , 2010 SCC 45, at paragraph 11). [ 51 ] Section 4 of the Code describes the Board’s jurisdiction under Part I of the Code : 4 This Part applies in respect of employees who are employed on or in connection with the operation of any federal work, undertaking or business, in respect of the employers of all such employees in their relations with those employees and in respect of trade unions and [NAME] composed of those employees or employers. [ 52 ] In the present case, the union claims that the employer is a federally regulated business because it is engaged in extra-provincial transportation activities. [ 53 ] Section 2 of the  Code defines “federal work, undertaking or business” as reflecting a non ‐ exhaustive list of businesses within the heads of power listed under sections 91 and 92 of the Constitution Act, 1867 . [ 54 ] Section 92(10)(a) of the Constitution Act, 1867 , excludes from provincial jurisdiction local works and undertakings that fall within the category of “Lines of Steam or other Ships, Railways, Canals, Telegraphs, and other Works and Undertakings connecting the Province with any other or others of the Provinces, or extending beyond the Limits of the Province.” This means that interprovincial transportation and communications works and undertakings fall within federal jurisdiction; while intraprovincial ones fall within provincial jurisdiction. [ 55 ] As reiterated in [NAME] v. [COMPANY] , 2023 FCA 251, it is the nature of the employer’s core business that determines its characterization for constitutional purposes. The test involves analyzing the essential operational nature of the undertaking and assessing the normal and habitual activities of the entity as “a going concern,” without regard for exceptional or casual aspects (see [NAME] , at paragraph 19; and Northern Telecom v. Communications Workers , [1980] 1 S.C.R. 115). [ 56 ] In [NAME] , the Supreme Court stressed that “[t]he exceptional aspects of an enterprise do not determine its essential operational nature.” (paragraph 19). [ 57 ] Having carefully reviewed all the evidence and the parties’ submissions, the Board finds that [NAME] and DF Canada are indivisible from a constitutional perspective and that the normal and habitual activities of the integrated entity as “a going concern” are the purchase, warehousing and sale of food products, not transportation. [ 58 ] The two companies are functionally integrated and subject to common ownership, as well as common management, control and direction. [ 59 ] Specifically, [NAME] and DF Canada are affiliated companies within the same corporate structure. [ 60 ] They share a common management structure, both reporting to executives of [COMPANY]. The administrative and support staff work from the same locations, and the two companies share finance, accounting, payroll, benefits, legal and other management and administrative services provided by [COMPANY]. [ 61 ] From an operational standpoint, the two companies operate in common as a single business. [NAME]’s director of transportation is responsible for the day-to-day transportation operations (such as routes, scheduling, dispatch, hiring and fleet maintenance), the control of the transportation activities resides with DF Canada, which determines the products to be delivered and their destinations. As such, [NAME] and DF Canada functionally operate in tandem to ensure that the products sold by DF Canada are delivered to its customers, as directed by DF Canada. [ 62 ] [NAME] is functionally dedicated to and dependent on DF Canada. [ 63 ] For the purpose of the jurisdictional inquiry, the Board is persuaded that [NAME]’s business forms part of a fully integrated undertaking of selling food products to customers and that its trucking operations are not severable from the core activity of selling food products. In fact, [NAME] was established a few years after DF Canada began operations to provide in-house transportation services for the delivery of DF Canada’s food products to its clients. [ 64 ] [NAME] have held that, for the purpose of determining the nature of an undertaking, an employer hauling its own goods is not engaged in transportation activities (see for example Schnitzer ; [NAME]; U.S.W.A. v. Pepsi-Cola Canada Ltd. , [1995]   O.L.R.B. Rep. 1131 ( Pepsi-Cola ), at paragraph 21; and [COMPANY] ). [ 65 ] This finding applies in the present circumstances. [ 66 ] [NAME] is dedicated to transporting DF Canada’s own products, either to customers or between the two distribution centres. The extra-provincial transportation of DF Canada’s goods is inherent in the very nature of the unseverable entity’s business of purchasing, warehousing and selling food products. [NAME] transports the goods that are at the core of the business operations. [ 67 ] The union argues that DF Canada should be considered a common carrier because it acts as a “middleman/logistics company” in delivering retailers’ products to their customers and that customers purchase the retailers’ products, not DF Canada’s products. The union submits that DF Canada only owns the food products to transport them to predetermined retailers. [ 68 ] The Board rejects this argument. First, there is no evidence that DF Canada only owns food products to transport them to predetermined retailers. Second, [NAME] is not in the business of selling transportation services. It is the “in-house” transporting arm of DF Canada and is completely dependent on DF Canada for its existence and operations. The core of the integrated business is to sell food products after having purchased them. Other than the irregular back-haul trips (discussed below), [NAME] only transports food products that DF Canada has previously purchased from suppliers. Its raison d’être is to transport food products, as directed by DF Canada, between points of origin and final destinations determined by DF Canada. [ 69 ] On that basis, the Board finds that the essential operational nature of the business, as a going concern, is the purchase, warehousing and sale of food products. It is not transportation. [ 70 ] The Board will now consider the back-haul trips. Even if the Board were to find that trips for third parties could transform the nature of the undertaking as a whole into an interprovincial transportation undertaking or that [NAME] could be considered as a distinct interprovincial transportation undertaking, the trips would need to be a regular and continuous aspect of the business. [ 71 ] As a result, the remaining question to be determined is whether [NAME]’s extra-provincial back-haul transportation activities are sufficiently regular and continuous to have the effect of removing the business from provincial jurisdiction over labour relations. [ 72 ] The evidence shows a total of 76 and 152 extra-provincial back-haul trips during the periods of December 2023 to December 2024 and December 2024 to December 2025, respectively. For three consecutive four-week periods in 2024, no such trips were made. In 2025, back-haul trips were made only during six four-week periods. [ 73 ] During the 18-month period preceding the date of the certification application, no back-haul trips were performed during five four-week periods. [ 74 ] There is no consistent or recurring pattern of back-haul trips in the evidence presented to the Board. The extra-provincial back-haul trips do not follow a predetermined or predictable schedule. In fact, the evidence does not reflect any steady, settled or usual business of back-haul activities. These activities are performed by [NAME] when such business is obtained, but it is not a steady, permanent or continuous feature of the business. [ 75 ] Applying the “regular and continuous” test, and using a qualitative approach, the Board finds that the back-haul trips are sporadic and not continuous. [ 76 ] The back-haul trips do not occur regularly. There are months without any of these trips during the examined two-year period, and similarly during the 18-month period prior to the date the application was filed. The back-haul trips are also not “continuous” in that they are neither constant nor continuing without interruption. The Board finds that these trips are intermittent and more representative of occasional business opportunities seized when they arise. [ 77 ] The Board agrees with the union that percentages based on volume of business are not determinative when assessing whether interprovincial transportation activities are significant enough to find that a business falls within federal jurisdiction. The test is whether the interprovincial aspect of the operations is regular and continuous, based on an assessment of the specific facts of the case (see [COMPANY]. , 2019 [NAME] 895; [COMPANY] ., 1999 [NAME] 31; and Re Ottawa-Carleton Regional Transit Commission and Amalgamated Transit Union , Local 279 et al., 1983 CanLII 1936 (ON CA)) . Essentially, as already indicated, the Board assesses the true nature of the entire business operations to search for clear evidence that any extra-provincial operations have a regular and continuous quality within those business operations (see [COMPANY] , at paragraph 98). [ 78 ] That said, although not determinative, the tiny percentage of back-haul activity in the present case is indicative of the real pith and substance of the business. [ 79 ] In the present case, the employer’s back-haul activities are not a central part of its business and do not satisfy the qualitative test of being regular and continuous in nature to bring the business into federal jurisdiction. [ 80 ] Looking at all the relevant indicators, the true nature of the business, as a going concern, is not extra-provincial transportation. [ 81 ] Assessed as a whole, the Board finds that the evidence does not support a finding that [NAME] is engaged in back-haul interprovincial or international activities on a regular and continuous basis. The Board is not persuaded that the back-haul transportation activities are sufficiently regular and continuous to displace the norm of exclusive provincial jurisdiction over [NAME]’s labour relations. [ 82 ] The facts of this case are distinguishable from those described in [COMPANY] ., (1990) 81 di 114 (CLRB no. 809) ( Burns ). In Burns , the back-haul trips occurred on a regular daily or weekly basis, and the local pick-up and delivery personnel, as well as the employer’s warehouse employees, handled these goods on a daily basis. [ 83 ] As a result, the Board finds that the employer’s business, as an integrated whole, is properly characterized as an undertaking engaged in the purchase, warehousing and sale of food products. As such, the employer’s operations do not constitute a federal undertaking and are not subject to the Code .

VII. Conclusion [ 84 ] The Board concludes that the employer is not a federal work, undertaking or business.

Accordingly, the Board lacks jurisdiction to entertain the certification application. For this reason, the application is dismissed. ____________________ [NAME]