Human Rights Tribunal of Ontario
B E T W E E N:
Barry Niece
Applicant
-and-
Archer Daniels Midland Company
Respondent
DECISION
Adjudicator: Ena Chadha
Indexed as: Niece v. Archer Daniels Midland Company
1The applicant filed an Application under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on October 25, 2010, alleging discrimination on the basis of disability with respect to employment. The Application indicated that the applicant was employed as a millwright at the respondent’s Port Colborne flour mill. The applicant alleges that the respondent failed to accommodate his disability and that his union launched a grievance on this behalf.
2On November 3, 2010, the Tribunal issued a Notice of Intent to Defer pending the resolution of another legal proceeding dealing with the subject matter of the Application, pursuant to Rule 14 of the Tribunal’s Rules of Procedure. The Tribunal invited the parties and the affected party to file submissions no later than 30 days from November 3, 2010 as to why consideration of the Application should or should not be deferred.
3On November 30, 2010, the respondent filed response submissions, wherein it stated that the Tribunal should not defer the Application, but rather should dismiss the Application as outside the Tribunal’s jurisdiction because the respondent is within federal jurisdiction.
4Neither the applicant, nor the affected party, has filed submissions with respect to the issue of deferral or the jurisdictional issue.
DECISION
5I find this Application is outside of the Tribunal’s jurisdiction. Given the decision with respect to federal jurisdiction, it is not necessary for me to address the issue of deferral.
6The respondent indicates that it is a federally regulated flour mill. The respondent submits that, pursuant to section 76 of the Canadian Wheat Board Act, R.S.C. 1985, c.C-24, all flour mills are declared to be federal works for the general advantage of Canada. Thus, based on subsections 92(10)(c) of the Constitution Act, 1867, any works and undertakings that are declared by Parliament to be for the general advantage of Canada are within federal jurisdiction. The respondent further notes that the Federal Court of Appeal has held that every flour mill in Canada is a federal work and that the Canada Labour Code applies to flour mill labour relations. See Shur Gain Division, Canada Packers Inc. v. National Automobile, Aerospace and Agricultural Implement Workers Union of Canada, 1991 CanLII 13576 (FCA), [1992] 2 F.C.3.
7The Code only applies to matters that fall within provincial jurisdiction and does not apply to federally-regulated businesses. The Canadian Human Rights Commission has the power to deal with human rights matters that fall under federal jurisdiction.
8Based on the information provided by the respondent, it appears that respondent is federally regulated and outside of the Tribunal’s jurisdiction.
9Accordingly, the Application is dismissed.
Dated at Toronto, this 10th day of December, 2010.
”signed by”____________
Ena Chadha
Vice-chair