Cabral v. Cooney Transport Limited, 2010 HRTO 1584

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Fernando Cabral

Applicant

-and-

Cooney Transport Limited

Respondent

DECISION

Adjudicator: Brian Eyolfson

Date: July 21, 2010

Citation: 2010 HRTO 1584

Indexed as: Cabral v. Cooney Transport

1This Decision addresses the respondent’s Request for an Order During Proceedings (“Request”) that the Application be dismissed on the basis that it is not within the Tribunal’s jurisdiction.

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 (“NOID”) 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 NOID, 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, 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 Request 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.

6In a second Interim Decision, 2010 HRTO 1352, the Tribunal determined that it was appropriate to first consider the jurisdiction issue. The Tribunal indicated, however, that it was not able to determine the jurisdiction issue based on the materials before it, and directed the respondent to provide further submissions. Submissions were also invited from the applicant and the union.

7The respondent submitted that it provides transportation services outside Ontario, making freight deliveries in Quebec and the United States. The applicant confirmed that when he was working he frequently traveled to New York and Michigan States. The union advised that it became the certified bargaining agent for the respondent by way of an Ontario Labour Relations Board Order, dated February 8, 1982. The union, however, also advised that it understands that the respondent operates across both provincial and international borders. The union also advised that, on a number of occasions, it has either accessed the conciliation process, or made a request for the appointment of a mediator under s. 105 of the Canada Labour Code, R.S.C. 1985, c. L-2 (the “CLC”), to assist with grievances. The union enclosed examples of correspondence relating to the appointment of Mediators and Conciliators, pursuant to the CLC, dating back to 2008.

8Under 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, transportation works and undertakings that extend beyond the limits of the province are within federal jurisdiction.

9Based on the parties’ and the union’s submissions that the respondent is engaged in transportation extending beyond Ontario, I am satisfied that the respondent is federally regulated and that the Application is, therefore, not within the jurisdiction of the Tribunal. See Soler v. Luckhart Transport, 2009 HRTO 1486, Rowland v. Canada Cartage Systems, 2009 HRTO 1941, and Digby v. Trans-Provincial Freight Carriers, 2010 HRTO 1354.

10The Application is dismissed.