Fisher v. Polymer Distribution, 2009 HRTO 146

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Doris Fisher

Applicant

-and-

Polymer Distribution Inc., Ian Savage, Rick Standish, Wayne Campbell and Judy Johnstone

Respondents

DECISION

Adjudicator: Judith Hinchman

Date: February 10, 2009

Citation: 2009 HRTO 146

Indexed as: Fisher v. Polymer Distribution

WRITTEN SUBMISSIONS BY

) Doris Fisher, Applicant ) Peter A. McSherry, ) Counsel ) ) Polymer Distribution Inc., Ian Savage, Rick Standish, ) Stephen A. McArthur, Wayne Campbell and Judy Johnstone, Respondents ) Counsel ) )

1The applicant filed a complaint dated September 28, 2005 (the “complaint”) with the Ontario Human Rights Commission (the “Commission”), alleging a breach of the Human Rights Code R.S.O. 1990, c. H.19, as amended (the “Code”) by the respondents. The applicant abandoned the complaint and filed this Application (the “Application”) with the Human Rights Tribunal of Ontario (the “Tribunal”) pursuant to s. 53 of Part VI of the Code. The applicant alleges discrimination in relation to employment on the basis of sex and reprisal.

2On December 19, 2008, respondents’ counsel wrote to the Tribunal requesting that the Application be dismissed for lack of jurisdiction on the basis the corporate respondent is a federally regulated business.

3The Tribunal requested submissions from the parties on the jurisdictional issue. After considering those submissions, for the reasons which follow, I find the respondent is a federally regulated business and therefore not subject to the Tribunal’s jurisdiction.

Decision

4Under Rule 4.2 of its Rules of Procedure for Section 53(3) and 53(5) Applications, the Tribunal may dismiss part or all of an application that is outside the Tribunal’s jurisdiction.

5The Code only applies to matters that fall within provincial, rather than federal, jurisdiction. Pursuant to subsection 92(10)(a) of the Constitution Act, 1867, (U.K.), 30 & 31 Victoria, c. 3, (the “Constitution”), transportation works and undertakings that extend beyond the limits of the province are within federal jurisdiction.

6The respondents claim that the corporate respondent’s business comprises truck and rail transportation, warehousing, and distribution of bulk goods across Canada and into the United States. In particular they assert that the business operates truck and rail terminals in several provinces including Ontario, Quebec, Alberta, and British Columbia, and has obtained licenses for transportation in all Canadian provinces except Newfoundland and in most of the United States. The respondents claim that approximately 50% of the corporate respondent’s transport business is inter-provincial and that it is subject to federal labour relations and environmental protection laws.

7The applicant has not alleged any facts to dispute the corporate respondents’ characterization of its business. In fact, the applicant neither disputes nor addresses at all the respondents’ claim that Polymer Distribution Inc.’s business is a federal undertaking. The applicant argues, nonetheless, that the respondents have attorned to the jurisdiction of the Tribunal to deal with this matter by filing a response to the original complaint, participating in the Commission investigation, and engaging in settlement discussions facilitated by the Commission without challenging the Commission’s jurisdiction. The applicant submits she will suffer prejudice if the respondents are allowed to now raise the issue of jurisdiction because the limitation periods for filing a complaint under the Canadian Human Rights Act, R.S. 1985, c. H-6, as amended, and a civil action have both expired. Alternatively, the applicant argues that even if the Tribunal lacks jurisidiction over the corporate respondent, it may continue the proceeding against the individual respondents.

8The undisputed evidence is that the corporate respondent is engaged in transportation works and undertakings that extend beyond the limits of the province as contemplated by s. 92(10)(a) of the Constitution. As such, I find it to be a federally regulated business. With respect to the applicant’s prejudice argument, while I am sympathetic, the law is well settled that the behaviour or consent of parties cannot confer jurisdiction on a statutory body.

9There is no evidence to suggest that the individual respondents were not, at the time discrimination is alleged, employees of the corporate respondent and subject to the same federal labour laws governing the corporate respondent. I can not therefore find that the allegations in the Application that pertain to the individual respondents fall within provincial jurisdiction. See Guerrier v. Canadian Imperial Bank of Commerce, 2009 HRTO 124.

10In the circumstances, the Application is outside the jurisdiction of the Tribunal. The Application is therefore dismissed.