Swift v. Bell Technical Solutions, 2010 HRTO 1557

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Robert Swift

Applicant

-and-

Bell Technical Solutions Inc.

Respondent

INTERIM DECISION

Adjudicator: David A. Wright

Date: July 19, 2010

Citation: 2010 HRTO 1557

Indexed as: Swift v. Bell Technical Solutions

WRITTEN SUBMISSIONS BY

Robert Smith, Applicant ) Bruce Best, Counsel

Bell Technical Solutions Inc., Respondent ) Sarah Crossley, Counsel

Sun Life Assurance Company of Canada, ) Valerie S. Greifenberger,

Proposed Respondent ) Counsel

1This is an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, filed on September 18, 2008. Following an extended mediation process as a result of various medical treatments being received by the applicant, the Application was scheduled in April 2010 for hearing on September 7 and 8, 2010. The Application relates to the respondent’s decision not to allow the applicant to return to work since January of 2005. The applicant has addiction and mental health disabilities.

2After the hearing was scheduled, each party filed a Request for Order During Proceedings. The respondent now takes the position that the Application does not fall within provincial jurisdiction. It says that labour relations within the respondent company, which installs telephone and broadband equipment, fall under exclusive federal jurisdiction and asks for dismissal of the Application on that basis.

3The applicant seeks to add another party as a respondent, Sun Life Assurance Company of Canada (“Sun Life”), which provided short-term disability (“STD”) benefits for employees of the respondent. It alleges that Sun Life discriminated against the applicant on the basis of disability because it refused to extend a deadline for making an application for STD benefits in 2005, which the applicant allegedly missed because of his disabilities.

4Having considered the Requests for Order and Responses to them, I find that more detailed evidence and argument is required in order to determine the jurisdictional issue and a hearing shall be held on that issue. The applicant’s request to add Sun Life is dismissed. My reasons for each of these determinations follow.

JURISDICTION

5The applicant is represented by a union, the Communications, Energy and Paperworkers Union of Canada (“union”). The respondent went through various corporate changes, and for a period, the union and employer agreed that its labour relations fell under provincial jurisdiction. On August 21, 2008, the union filed an Application with the Canada Industrial Relations Board (“CIRB”) under s. 44 of the Canada Labour Code, R.S.C. 1985, c. L-2, seeking a declaration that there had been a sale of a provincial business and that labour relations fell under federal jurisdiction. Following mediation, the parties filed an agreed statement of facts and jointly sought a declaration from the CIRB that the respondent’s labour relations fall under federal jurisdiction. On the basis of that agreed statement of facts, the CIRB issued a declaration on December 9, 2009 that the respondent falls within federal jurisdiction for the purposes of Part I of the Canada Labour Code.

6The respondent relies upon the CIRB decision to argue that this matter falls within federal jurisdiction. The applicant, relying upon various statements in the union’s application, suggests that the jurisdiction changed from provincial to federal at a certain point given technical changes in the telephone network, and suggests that the relevant events in this Application occurred before those changes happened. It suggests it has not been shown that the Tribunal has no jurisdiction.

7In its reply, the respondent points out the Supreme Court of Canada’s decision in Northern Telecom v. Communication Workers 1983 CanLII 25 (SCC), [1983] 1 S.C.R. 733, suggesting that this case stands for the proposition that “the installation and repair of telephone and broadband (DSL) equipment is vital, essential and integral to the core business of Bell Canada’s telecommunications system, which is federally regulated”. It argues that if the parties mistakenly acted as if the business was provincially regulated, this is of no significance.

8The issue, in my view, is more complex than is reflected in the parties’ submissions. In Northern Telecom at p. 755, the Court relied upon the following criteria, adapted to that case, from the Court’s previous decision in Northern Telecom v. Communications Workers of Canada, 1979 CanLII 3 (SCC), [1980] 1 S.C.R. 115 at p. 135:

(1) the general nature of Telecom's operation as a going concern and, in particular, the role of the installation department within that operation;

(2) the nature of the corporate relationship between Telecom and the companies that it serves, notably Bell Canada;

(3) the importance of the work done by the installation department of Telecom for Bell Canada as compared with other customers;

(4) the physical and operational connection between the installation department of Telecom and the core federal undertaking within the telephone system and, in particular, the extent of the involvement of the installation department in the operation and institution of the federal undertaking as an operating system.

9The respondent is correct that the labour relations parties may have been wrong in treating their labour relations as falling under the provincial jurisdiction prior to 2009. The Tribunal is not bound by what they did. Similarly, however, the Tribunal is not bound by the decision of the CIRB in 2009, made on consent and which was based on an agreed statement of facts. If the applicant wishes to argue that the Tribunal should not follow that case, he is entitled to do so.

10The Tribunal does not have a complete factual record before it to make the necessary determination about the federal/provincial issue in light of the law as reflected in the Northern Telecom decisions. Neither party has made submissions about how the factors in those cases apply in the changed technological and corporate environment in which the respondent does business in 2010. Moreover, the applicant’s theory appears to be that the Tribunal has jurisdiction over the matter if technological changes have led to a change in jurisdiction since 2005. However, there is no caselaw cited for that proposition and no authority given for the proposition that the Tribunal could order a remedy against a company that may now fall within exclusive federal jurisdiction.

11Finally, it is evident that the union has an interest in the constitutional issue, which was not clear when it decided not to intervene. It should have the opportunity to intervene in this matter if it wishes.

12Accordingly, the Tribunal will hold an oral hearing on the constitutional issue with a full factual record and more complete argument. The factual record may take various forms such as an agreed statement of facts and/or reliance on the facts set out in the CLRB decision in Re Connolly (1998), 107 di 120 (CLRB Decision no. 1235). The Tribunal is prepared to discuss how to deal with the constitutional issue in the most, fair, just and expeditious manner possible and urges counsel to discuss how to do so.

13The Tribunal directs as follows. A copy of this Interim Decision will be sent to the union to provide it with notice of the federal/provincial jurisdiction issue. The Tribunal will hold a conference call on July 27, 2010 at 8:30 AM to discuss with the parties how this matter will proceed. A notice with a call-in number will follow from the Registrar’s Office to the parties and the union. The union should participate in the call if it intends to seek leave to intervene.

REQUEST TO ADD SUN LIFE

14There appears to be some confusion between the parties about whether Sun Life was the respondent’s long-term disability or short-term disability insurer. It is evident from the Response to the Request for Order by Sun Life and the reply by the respondent that it was the STD insurer. The claim against Sun Life relates to the applicant’s eligibility for 26 weeks of STD benefits in 2005.

15The basis of the discrimination claim against Sun Life is that the applicant applied for STD benefits outside the time limit in the policy, which requires that an application for STD benefits be made within three months from the date the employee became totally disabled. The allegation is that Sun Life failed to extend this time period, which the applicant allegedly missed because of disability.

16The approach to adding respondents is set out in Smyth v. Toronto Police Services Board, 2009 HRTO 1513, at para. 12:

(1) Are there allegations made that could support a finding that the proposed respondent violated the Code?

(2) If the proposed respondent is an individual and an organization is also named, is there a compelling reason to include him or her as a respondent?

(3) Would it be fair, in all the circumstances, to add the proposed respondent?

The application of the first stage involves considering whether there are allegations made in the Application or amendments sought to it that could lead to a finding that the Code was infringed. At the second stage, the Tribunal applies the Persaud factors, which focus in most cases on whether there is an organizational respondent named that can effectively remedy the infringement and the centrality of the allegations against the proposed respondent. At the third stage, the Tribunal may consider a variety of factors, including the effects on the hearing process of adding the proposed respondent, the reasons the proposed respondent was not named in the Application or Response, prejudice to the other parties, and the need for and likely effectiveness of a remedial order against the proposed respondent if the application is allowed.

17In my view, it would not be fair, in all the circumstances, to add the proposed respondent and I need not consider the other factors. The alleged events happened in 2005. This Application was filed in 2008. The applicant states that he only became aware of the importance of adding Sun Life in February of 2009 when he retained counsel. The Request for Order was filed in May of 2010. The applicant states that the delay between February 2009, when he retained counsel and learned of the importance of adding Sun Life, and 2010, when this Request was filed, is justified by the ongoing mediation discussions with the respondent and his understanding that the respondent was dealing with issues with its LTD insurer as part of mediation discussions.

18The Request is denied on the basis of delay. Leaving aside the earlier delays, the 15-month delay between February 2009 and May 2010 occurred during a period when the applicant was aware of his rights and took no steps to advise Sun Life that he intended to file a human rights claim against it, instead pursuing mediation with the respondent. Pursuing a settlement with the employer is not the same as giving notice to Sun Life that a human rights claim would be pursued against it. This was particularly important given the passage of time that had already occurred. Sun Life has no record of conversations with the respondent about the applicant since 2006. I cannot find that the delay in pursuing this matter against Sun Life was incurred in good faith, and in such circumstances it would not be fair to add it as a respondent.

19The Request to add Sun Life as a respondent is denied.