Cabral v. Cooney Transport, 2010 HRTO 1352

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Fernando Cabral

Applicant

-and-

Cooney Transport Limited

Respondent

INTERIM DECISION

Adjudicator: Brian Eyolfson

Date: June 15, 2010

Citation: 2010 HRTO 1352

Indexed as: Cabral v. Cooney Transport

1The purpose of this Interim Decision is to address the respondent’s Request to dismiss the Application on the basis that it is not within the Tribunal’s jurisdiction and to provide further directions.

2The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, alleging discrimination in employment. On January 5, 2010, the Tribunal issued a Notice of Intent to Dismiss (“Notice”) the Application under Rule 13.2 of the Tribunal’s Rules of Procedure as the respondent appeared to be a federally-regulated business or service.

3The applicant provided submissions in response to the Notice, indicating that he had spoken to various government departments and was told that the respondent is provincially regulated.

4The Tribunal issued an Interim Decision, 2010 HRTO 364, stating that the Tribunal would continue to deal with the Application as it was not plain and obvious that the matter falls under federal jurisdiction. The Tribunal indicated that its Interim Decision was not a final decision regarding the Tribunal’s jurisdiction. The Tribunal also referred to the Tribunal’s decision in Masood v. Bruce Power, 2008 HRTO 381, which provides some guidance about the process by which a respondent who asserts that a particular matter falls within federal jurisdiction can raise it with the Tribunal.

5The respondent filed a Request for an Order During Proceedings (“RFOP”), dated March 25, 2010, submitting that the Application should be dismissed as the respondent is a federally-regulated company and the applicant voluntarily and “without prejudice” terminated his employment. The applicant filed a Response to the RFOP reiterating that he has been assured by a number of government departments that the respondent is provincially regulated. The applicant’s union, Teamsters Local Union No. 879 (the “union”), filed a Request to Intervene.

6The Tribunal determines that it is appropriate to first consider the jurisdiction issue. Under Rule 13.1 of its Rules of Procedure, the Tribunal may dismiss an application that is outside its jurisdiction. Pursuant to subsection 92(10)(a) of the Constitution Act, 1867, (U.K.), 30 & 31 Victoria, c. 3, transportation works and undertakings that extend beyond the limits of the province are within federal jurisdiction.

7Based on the materials before me, I am not able to determine the jurisdiction issue. The respondent has simply stated that it is a federally-regulated company. The respondent has provided no other information or documentation to support its position. It is not clear to me if the respondent is engaged in transportation works and undertakings that extend beyond Ontario.

8In the circumstances, the respondent is directed to provide further submissions on the jurisdiction issue within 10 days of the date of this Interim Decision. The applicant may provide submissions in response within 20 days of the date of this Interim Decision. While it is not necessary to determine the union’s Request to Intervene at this point in time, the union may also provide submissions on the jurisdiction issue within 20 days of the date of this Interim Decision.

9The parties and the union may want to have regard to the Tribunal’s jurisprudence (See, for example, Soler v. Luckhart Transport, 2009 HRTO 1486, Tassone v. Canpar Transport, 2009 HRTO 1931, and Rowland v. Canada Cartage Systems, 2009 HRTO 1941).

10I am not seized.