Soler v. Luckhart Transport, 2009 HRTO 1486

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Juan Soler

Applicant

-and-

Luckhart Transport Ltd., Douglas Luckhart, Rosy Lozano

Respondents

DECISION

Adjudicator: Sherry Liang

Date: September 15, 2009

Citation: 2009 HRTO 1486

Indexed as: Soler v. Luckhart Transport

WRITTEN SUBMISSIONS BY

Jaun Soler, Applicant ) on his own behalf

Luckhart Transport Ltd., )

Douglas Luckhart and Rosy Lozano, ) Frances S. Brennan, Counsel

Respondents )

1This is an Application filed on August 4, 2009 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”). The Application was accompanied by a Request to Expedite Proceedings. On August 14, 2009, the Tribunal issued a Notice of Intent to Dismiss, noting that the respondent may be a federally-regulated business under the jurisdiction of the Canadian Human Rights Commission.

2The Tribunal requested the parties’ submissions on the issue of the Tribunal’s jurisdiction over this Application. The Tribunal also requested submissions from the respondents on the applicant’s Request to Expedite.

3The Tribunal has received correspondence from the applicant, dated August 19, 2009, on the question of the Tribunal’s jurisdiction. The applicant states that he contacted the Human Rights Legal Support Centre (the “Centre”) for assistance. He states that the Centre conducted a corporate search and determined that the corporate respondent was incorporated under the laws of the Province of Ontario. Further, the Centre contacted Industry Canada and Corporations Canada, whose staff indicated over the phone that the corporate respondent was a provincially regulated company.

4The respondent filed submissions on the issue as well, on September 9, 2009. The respondents submit that the corporate respondent Luckhart Transport Limited (“Luckhart Transport”) is a trucking company specializing in long-haul livestock and dry freight trucking with offices located in Ontario and Manitoba. The trucks all bear Manitoba license plates. The respondents state that the company routinely transports goods across provincial boundaries, and that due to the interprovincial dimension of the business, it follows the provisions of the Canada Labour Code.

5The respondents state that the applicant’s employment involved cleaning and maintaining the company’s fleet of trucks. The respondents submit that the applicant’s complaint falls solely within the jurisdiction of the Canadian Human Rights Act. With their written submissions, the respondents have provided an affidavit attesting to the facts, and copies of court decisions dealing with the question of whether federal or provincial labour and human rights law applies to companies carrying on business across provincial borders.

DECISION

6The Tribunal finds that it has no jurisdiction over this Application.

7The 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.

8The courts have confirmed that the work of maintaining and washing trucks used in interprovincial transportation falls under federal jurisdiction for labour relations purposes (see Bernshine Mobile Maintenance Ltd. v. Canada (Labour Relations Board), [1985] F.C.J. No. 181 (F.C.A.) and Highway Truck Service Ltd. v. Canada (Labour Relations Board), [1985] F.C.J. No. 908 (F.C.A.)).

9The information provided by the Centre to the applicant does not assist in determining whether federal or provincial human rights law applies to this company. The jurisdiction in which a company is incorporated does not determine the issue of whether the Code applies. It may be that the company was not incorporated under federal corporation law, but provincial. However, it is clear from the Bernshine decision (as well as others) that even companies incorporated under provincial law can be subject to federal human rights or labour laws, depending on the nature of the business. The Supreme Court of Canada has stated that it is the “reality of the situation” and not the “commercial costume worn” by the entities involved that determines the question of constitutional jurisdiction (Alberta Government Telephones v. Canadian Radio-television and Telecommunications Commission, 1989 CanLII 78 (SCC), [1989] 2 S.C.R. 225.)

10In this Application, the affidavit submitted by the president of Luckhart Transportation states that the company specializes in long-distance trucking, transporting livestock and dry van freight across Canada, the United States and Mexico. Its drivers regularly cross provincial borders. The work performed by the applicant is similar to the work that the courts in the Bernshine and Highway decisions found to be covered by federal labour laws. In the circumstances, the Tribunal finds that the subject of this Application is covered by the Canadian Human Rights Act, and not the Code.

11It is understandable that the applicant may have thought the Code applied to his situation. Issues of constitutional jurisdiction are not self-evident, and indeed, the situation is made more complex by the fact that a company may be covered by some federal laws for some purposes, but by other provincial laws for other purposes.

12On the facts of this case, the Tribunal has no jurisdiction to proceed. The applicant must bring his claim to the Canadian Human Rights Commission. The Application is dismissed. Given the dismissal of the Application, the Tribunal will not consider the Request to Expedite.