HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Nicole Fleury
Applicant
-and-
Northstar Frontier Services and Tim Warren
Respondents
DECISION
Adjudicator: Faisal Bhabha
Indexed as: Fleury v. Northstar Frontier Services
1This is an Application filed December 14, 2009 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”). The applicant alleges discrimination in employment on the basis of disability.
2On March 15, 2010, the respondents filed a Form 10 Request for Order During Proceedings seeking early dismissal for lack of jurisdiction on the basis that the corporate respondent is a federally-regulated business.
3On April 1, 2010, the applicant filed a Form 11 opposing the Request on the grounds that the workplace was located in Ontario and the alleged events occurred in the province.
POSITION OF THE PARTIES
4The respondents claim that the corporate respondent’s business involves food service contracts with Canadian National and Canadian Pacific railway companies, which fall under federal jurisdiction. In support of this argument, the respondents filed a letter signed by a Health and Safety Officer of the Department of Human Resources and Skills Development Canada (HRSDC) offering the opinion that the corporate respondent “is clearly a federal work [sic] in accordance with paragraph 2.(b) of the Canada Labour Code on the basis that the provision of food services to remote rail crews is vital and integral to the operation of the railways.” The correspondence further references the fact that the company that preceded the corporate respondent as the food service provider to the railways was a federally-regulated company.
5The applicant was a resident manager, based in Ontario for the duration of her four-year employment with the respondent. Her position is that the work site and alleged discriminatory events all occurred within the geographical bounds of Ontario. On that basis, she asserts that the Tribunal has jurisdiction over the Application.
Decision
6Under Rule 13.1, the Tribunal may dismiss part or all of an application that is outside the Tribunal’s jurisdiction. The Code only applies to matters that fall within provincial, rather than federal, jurisdiction.
7Pursuant to subsection 92(10)(a) of the Constitution Act, 1867, (U.K.), 30 & 31 Victoria, c. 3, (the “Constitution”), transportation works and undertakings that extend beyond the limits of the province are within federal jurisdiction.
8A local commercial undertaking will generally be held to be part of a separately owned, inter-provincial undertaking where the inter-provincial undertaking is dependent on the local undertaking for the performance of an essential part of the inter-provincial service: United Transportation Union v. Central Western Railway Corp., 1990 CanLII 30 (SCC), [1990] 3 S.C.R. 1112 at 1137. This is known as the “dependency rule”. See Peter Hogg, Constitutional Law in Canada, 2006, at p. 22-13.
9The relationship of dependency must be a permanent, or at least ongoing, relationship. A casual, exceptional or temporary relationship will not suffice. In Re Industrial Relations and Dispute Investigation Act, 1955 CanLII 1 (SCC), [1955] S.C.R. 529 (known as the “Stevedores References”), the Supreme Court of Canada considered whether the loading and unloading of ships in Canadian ports was within federal jurisdiction, even though the stevedoring services were provided by local companies that were independent of the shipping companies. While navigation and shipping were squarely within federal jurisdiction, the question was whether the attendant services were “part and parcel” of the shipping undertaking. The Court held that they were, and as such, the stevedores fell under federal jurisdiction.
10In this case, the applicant worked at a “nomad station”, providing cooking, catering and camp management services to the railways in remote locations. The respondent has held the contracts to provide these services since 2003.
11While the opinion of HRSDC is not binding on the Tribunal in determining its jurisdiction, it is worth noting that correspondence from a federal Health and Safety Officer offers the opinion that “the provision of food services to remote rail crews is vital and integral to the operation of the railways.” It is also noteworthy that the company that previously held the contracts for these services was considered by HRSDC to fall within federal jurisdiction for health and safety purposes.
12I am satisfied that the corporate respondent is engaged in services that are integral to inter-provincial transportation works and services, as contemplated by section 92(10)(a) of the Constitution. As such, I find it to be a federally regulated business.
13In the circumstances, the Application is outside the jurisdiction of the Tribunal. The Application is therefore dismissed.
Dated at Toronto, this 27th day of April, 2010.
“Signed By”
Faisal Bhabha
Vice-chair