Hutchinson v. Garda Canada Security Corporation, 2009 HRTO 2253

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Veronica Hutchinson

Applicant

-and-

Garda Canada Security Corporation and Teamsters Local 487

Respondents

INTERIM DECISION

Adjudicator: Alan Whyte

Date: December 23, 2009

Citation: 2009 HRTO 2253

Indexed as: Hutchinson v. Garda Canada Security

1This is an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”) which alleges discrimination in employment on the basis of disability. The applicant has named both her former employer Garda Canada Security Corporation (“Garda”) and her former bargaining agent, Teamsters Local 487 (“the union”) as respondents.

2On receipt of the Application, Garda Security Screening Inc. (“Garda Security”) filed a Request for an Order during Proceedings (“RFOP”) seeking the referral of the Application to the Canadian Human Rights Commission (“CHRC”) on the basis that Garda Security is a federally regulated entity, and therefore the Tribunal has no jurisdiction to entertain the Application. Rather, it asserts that the CHRC would have such jurisdiction. It also states that the applicant was employed by Garda Security not Garda.

3The union filed a Response to the RFOP in which it confirmed that Garda Security is a “federal work” and that the union was certified by the Canada Industrial Relations Board.

4The applicant filed a Response to the RFOP in which she indicated that there was some evidence that the applicant was employed by Garda, not Garda Security. The applicant also states that she is now proceeding with a complaint under the Canadian Human Rights Act, R.S., 1985, c. H-6 to the CHRC. The applicant makes certain legal arguments pertaining to the issue of provincial/federal jurisdiction, and relies on the case of Davies v. Compton Cable T.V., 2009 HRTO 178. The applicant suggests that the Application be deferred until the outcome of the applicant’s complaint to the CHRC is known.

5In the Davies case, the Tribunal found in similar circumstances that deferral was the most fair, just and expeditious way of proceeding with the Application. It stated that before deciding to dismiss the Application as being outside its jurisdiction, the Tribunal would require further factual and legal submissions from the respondents and the applicant, thus putting the parties to further expense and delay. The Tribunal also pointed out that even if the Tribunal was to determine the issue of jurisdiction, it would not be binding on the CHRC.

6The Tribunal requires submissions from the respondents on the issue of deferral. Those submissions should be delivered to the other parties and filed with the Tribunal within 21 days of the date of this Interim Decision.

7Upon receipt of those submissions, the Tribunal will decide the deferral issue and issue further directions regarding the course of this proceeding if required.

8I am not seized of this matter.