Wint v. First Canada ULC, 2011 HRTO 1524

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Karen Wint

Applicant

-and-

First Canada ULC, The Manufacturers Life Insurance Company, Kathleen Pedrosa, Charles Saulnier, Chris Brown, Laurie Widdess, Phillip Power, Taura Caroscio (Shields) and Teresa Christiaans

Respondents

DECISION

Adjudicator: Kathleen Martin Date: August 16, 2011 Citation: 2011 HRTO 1524 Indexed as: Wint v. First Canada ULC

APPEARANCES BY

Karen Wint, Applicant ) Self-Represented

First Canada ULC, Charles Saulnier, ) Chris Brown, Laurie Widdess, ) Alix P. Herber, Counsel Phillip Power, Taura Caroscio (Shields), ) and Teresa Christiaans, Respondents )

The Manufacturers Life Insurance ) Mary MacKenzie, Counsel Company and Kathleen Pedrosa, Respondents )

)

1This is an Application filed on March 12, 2010, under s. 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in employment on the basis of colour and disability. The purpose of this Decision is to address the Tribunal’s jurisdiction to hear the Application.

2The jurisdictional issues were raised in two Requests for Order During Proceedings. On June 10, 2010, the respondent First Canada and six named individual respondents, Saulnier, Brown, Widdess, Power, Caroscio, and Christiaans (who are all employed by First Canada and hereinafter referred to as the “related respondents”) filed a Request seeking dismissal of the Application against them on the basis that First Canada is federally-regulated company (the “Request”). In addition, on August 3, 2010, the respondent, the Manufacturers Life Insurance Company and the remaining named individual respondent, Kathleen Pedrosa, filed a Request seeking, among other things, dismissal of the Application against them on the basis that the applicant’s claim against them does not engage any social area under the Code as Manulife is not the applicant’s employer and there are no allegations made against either Manulife or Ms. Pedrosa (the “Manulife Request”).

3A hearing by conference call was held on December 20, 2010, to hear submissions on the Tribunal’s jurisdiction to hear the Application. For reasons set out below, I have found that the Tribunal does not have jurisdiction to hear this Application and the Application should be dismissed.

Background

4The Application arises from the applicant’s employment as a dispatcher with the Barrie Transit Branch (a branch operated by First Canada). Among other things, the applicant alleges that she was discriminated against in scheduling, through comments made to her, and by being denied accommodation and employment benefits. At the time of her Application the applicant was in a non-union position, but she had previously been employed in a union position.

5Based on the Application, it appears that the allegations are primarily made against First Canada and the related respondents. The only reference to the other respondents is in respect of Ms. Pedrosa, an employee of Manulife. The applicant states in her factual narrative of events that Ms. Pedrosa advised her that Manulife would not be supporting the applicant’s receipt of short term disability benefits beyond November 29, 2009. As a remedy, the applicant seeks compensation for what appear to be expenses incurred; injury to dignity, feelings and self-respect; lost wages; instatement into a “proper” position; accommodation; and training.

6On June 9, 2010, First Canada and the related respondents filed a Response. In addition to denying the allegations, these respondents assert in their Response and their Request that First Canada is a federally-regulated company and therefore the Tribunal has no jurisdiction to hear the Application against them. In describing its business, First Canada states that it is a transportation services provider with operations across the country. According to First Canada, its business is to provide regular and continuous cross-border transportation services within the provinces of Canada, between the provinces of Canada, and between Canada and the United States.

7First Canada states that in 2009 it assumed a contract from Greyhound Canada Transportation Corp. to provide the conventional passenger transit and accessible transit for the residents of the City of Barrie (i.e. the Barrie Transit Branch where the applicant is employed). First Canada states that the Barrie Transit Branch has been treated as federally-regulated for many years notwithstanding several ownership changes. It relies on various documentation indicating the Barrie Transit Branch’s treatment as a federally-regulated workplace including the certification of the Amalgamated Transit Union, Local 1587, as a union representing certain employees working for Barrie Transit under the Canada Labour Code in 1999; correspondence from Federal Mediation and Conciliation Services during the bargaining between the union and it in 2009; and directives of various Health and Safety Officers pursuant to the Canada Labour Code, Part II at various dates.

8Manulife and Ms. Pedrosa filed a separate Response on June 9, 2009. In their Response and in the Manulife Request, these respondents submit that Manulife only administers a self-insured Short Term Disability Plan for First Canada (a fact which appears to be consistent with the narrative of First Canada in its Response). These respondents assert that the Application should be dismissed against them because Manulife is not the applicant’s employer, there are no allegations made against them and the applicant has not sought a remedy against them.

9On July 22, 2010, the Tribunal issued a Case Assessment Direction seeking submissions from all parties in response to the jurisdictional issue raised.

10On August 3, 2010, the applicant responded that she wished to continue with her Application and attached a copy of a letter to her dated December 16, 2009, from an Early Resolution Analyst at the Canadian Human Rights Commission. This letter stated in part:

This is further to your complaint form dated October 16, 2009, concerning the difficulties you have encountered with First Canada. …

I have carefully reviewed your file including your complaint form. Please note that municipal bus services are provincially regulated unless they cross provincial or international borders. While your employer at present, First Canada, is federally regulated in most contexts, in this case, it appears to be provincially regulated as it provides services only within and around the municipality of Barrie, Ontario. Consequently, it does not appear that the Commission has jurisdiction to deal with your complaint. …

11The applicant also filed a Form 11 Response on August 17, 2010. In this response, which I presume is the response to the Manulife Request, the applicant states that she does not agree with the order requested and wishes to continue her Application because the “reasons” for her Application are still continuing to date. While Form 11 requires that a party attach any documents that a party relies on in its response to a request, the applicant did not attach any documents, although she states that she will provide new documents at a later date. The applicant asks that the request be dealt with in writing.

12By Case Assessment Direction dated October 4, 2010, the Tribunal scheduled a hearing by conference call to seek submissions from the parties for the purpose of determining whether it had jurisdiction to hear the Application. A hearing was held on December 20, 2010, to address the Request of First Canada. In determining the Request, I have considered the oral submissions received at the hearing and the written material filed by the parties in advance of the hearing.

Is the Application against First Canada and the related respondents outside the Tribunal’s jurisdiction?

13I will address first the issue of whether or not First Canada is a federally-regulated undertaking.

14In support of its contention that it is federally-regulated, First Canada submits that it is a federal undertaking and that the operations of the Barrie Transit Branch are functionally integrated and therefore should be also be treated as part of a single federal undertaking.

15First Canada explains that it is a corporation incorporated under the laws of Alberta that provides scheduled and chartered bus transportation to educational institutions and the general public throughout Canada. First Canada states that through its branches, it provides regular and continuous cross-border transportation services within the provinces of Canada, between the provinces, and between Canada and the United States. As such, it submits that it is a federal undertaking. First Canada relies on a decision of this Tribunal finding First Canada ULC to be outside the Tribunal’s jurisdiction in respect of a different workplace and decisions of the Ontario Labour Relations Board finding an operation that was subsequently acquired by First Canada to be federally-regulated: Durrani v. First Student Canada 2010 HRTO 1406; Laidlaw Transit Ltd., 2004 CanLII 47417 (O.L.R.B.), supplemental reasons indexed as Laidlaw Transit Ltd., 2004 CanLII 49800 (O.L.R.B.).

16First Canada submits that each of its branches maintains a fleet of vehicles and employs a group of employees to drive, repair, and dispatch the vehicles. Although the day-to-day operations in its branches are managed at the branch level, its operations are functionally-integrated and centrally-managed, controlled and directed by its management and support team at its head office in Burlington. First Canada relies on the following particulars of the functional integration:

i. the head office provides centralized human resources support to the branches, including directing the branches with respect to employee and labour relations;

ii. financial and accounting functions for each of the branches are performed at the head office, including the preparation and approval of operating budgets for each branch;

iii. branch revenues are allocated to cover the overhead costs of the head office;

iv. safety policies and training programs are developed by the head office and their implementation by the branches is supervised by the head office;

v. policies related to vehicle maintenance are developed by the head office and their implementation by the branches is supervised by the head office;

vi. information technology services are provided centrally from the head office;

vii. purchasing and leasing of vehicles and bulk fuel purchases are managed, directed and controlled by the head office;

viii. purchasing and leasing of real estate is managed, directed and controlled by the head office;

ix. branch mangers report to a regional general manager who reports to the vice president operations, who is based out of the head office;

x. insurance coverage is purchased centrally by the head office for the entire First Canada fleet;

xi. legal services are managed, directed and controlled by the head office;

xii. marketing is managed, directed and controlled by the head office; and

xiii. environmental matters are managed directed and controlled by the head office.

17First Canada and the related respondents submit that its other transit operations in Ontario, which are based in York Region, are also unionized and are federally-regulated workplaces. I note that for the purpose of this Decision, which relates solely to First Canada’s Barrie Transit Branch, I need not, and have not determined, whether any future Code applications in respect of these other transit operations in Ontario are outside of the jurisdiction of the Tribunal.

18As a result of the foregoing, First Canada and the related respondents submit that the Barrie Transit Branch is a functionally-integrated part of First Canada and subject to common direction, control and management and as such should be considered as a single federal entity for constitutional purposes. As such, any human rights claims are within the exclusive jurisdiction of Parliament and are governed by the Canadian Human Rights Act.

19The applicant did not dispute any submissions provided in support of the integration of the operation with the exception of the ownership of the buses. The applicant states that the vehicles in the Barrie Transit Branch are owned by the City of Barrie and not First Canada. The applicant indicates that she also relies on the letter she received from the Canadian Human Rights Commission to oppose the Request.

20Thus, the jurisdictional issue pertaining to First Canada and the related respondents turns on whether or not the Barrie Transit Branch is functionally integrated with First Canada such that is a single federal work or undertaking.

21Section 92(10)(a) of the Constitution Act, 1867 provides as follows:

In each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subjects next herein-after enumerated; that is to say,--

….

10. Local Works and Undertakings other than such as are of the following Classes:--

(a) Lines of Steam or other Ships, Railways, Canals, Telegraphs, and other Works and Undertakings connecting the Province with any other or others of the Province, or extending beyond the Limits of the Province;

…

22In this case, the respondent First Canada has described its business as providing regular and continuous cross-border transportation services within the provinces of Canada, between the provinces of Canada, and between Canada and the United States. Based on the foregoing the respondent asserts, and I accept that, to the extent First Canada is engaged in inter-provincial transportation it is a federal undertaking.

23In considering its operation of the Barrie Transit Branch, since it is undisputed that the Barrie Transit Branch operates within the City of Barrie, the latter will only be subject to federal jurisdiction if it is part of a single federal undertaking, First Canada, or it is essential, vital and integral to a federal undertaking. See: United Transportation Union v. Central Western Railway Corp., 1990 CanLII 30 (SCC), [1990] 3 S.C.R. 1112, and Westcoast Energy v. Canada (National Energy Board), 1998 CanLII 813 (SCC), [1998] 1 S.C.R. 322. Thus, in cases where a transportation entity is wholly situated within a province and other parts of the transportation business are interprovincial, under the first part of the Central Western Railway and Westcoast Energy test, they will be treated as a single federal undertaking for the purposes of s. 92(10)(a) where the intraprovincial entity, is functionally integrated and subject to common management, control and direction.

24It has been stated under the first part of the test it is the overall degree of functional integration and common management which must be assessed. Westcoast Energy, supra, at para. 57.

25Based on the submissions made, which were for the most part uncontested, I find that the Barrie Transit Branch and First Canada overall are functionally integrated and subject to common management control and direction. Subject to the dispute about ownership of the vehicles, I rely on the list of particulars set out in paragraph 16 above, which includes centralized control and management of human resources issues and many other key aspects of the operation of the branch.

26I do not find that the apparent dispute about the ownership of the vehicles is critical to my conclusion. Even accepting that the City of Barrie continues to own the vehicles and First Canada only operates them, this factor alone does not persuade me that the Transit Branch ceases to be functionally integrated with First Canada particularly given the other indicia of integration in paragraph 16 that are not challenged.

27I have considered the letter from the Canadian Human Rights Commission. I note that this is a letter only and not a decision from the Canadian Human Rights Tribunal. Moreover, I agree with the respondents that it does not appear that the author of the letter had before her the information about the manner in which the branch is functionally integrated with First Canada.

28Having regard to the foregoing, I find that the operation of the Barrie Transit Branch by First Canada is a functionally-integrated part of First Canada and subject to common direction, control and management and as such should be considered as a single federal entity for constitutional purposes. I find that to the extent the Application makes allegations against First Canada ULC and the related respondents (all of whom are employees of First Canada), the allegations are outside of the Tribunal’s jurisdiction.

29The Application is therefore dismissed against First Canada and Charles Saulnier, Chris Brown, Laurie Widdess, Phillip Power, Taura Caroscio (Shields) and Teresa Christiaans.

Should the Allegations Against Manulife and Ms. Pedrosa be Dismissed?

30The respondent The Manufacturers Life Insurance Company (“Manulife”) is an insurance company that is contracted by First Canada to administer its self-insured short term disability plan, and the respondent Ms. Pedrosa is an employee of Manulife. In the narrative to the Application, Ms. Pedrosa is alleged to have made certain remarks to the applicant suggesting that she should return to work against her doctor’s orders and when the applicant told Ms. Pedrosa that she would not return, Ms. Pedrosa told her that Manulife would not support her as of a certain date.

31In summarizing her allegations in paragraph 15 of the Application narrative, the applicant does not make any allegations of discriminatory conduct against Manulife or Ms. Pedrosa. Further, she does not seek any specific remedy against either party.

32Based on the material filed, there appears to be no dispute among the parties that First Canada is self-insured and ultimately responsible for paying short term disability benefits. In this respect Manulife clearly states in its Request that while it provides recommendations based on medical information, First Canada retains all liability and responsibility for any STD benefits payable to its employees under the Plan.

33The applicant has filed a response to the Manulife Request that the Application be dismissed. While she appears to take issue with the order requested, the applicant did not provide any substantive ground as to why the Application should continue against Manulife and Ms. Pedrosa nor does she dispute the assertions that this is a self-insured plan. I do not find the reason given – that the reasons for her Application are continuing – to be responsive to the issues that have been identified (that Manulife is not the applicant’s employer, there are no specific discrimination allegations against Manulife and Ms. Pedrosa and no remedy is sought against either party).

34Further, the respondent First Canada and the related respondents have not filed any response objecting to the Request, and in their Response provide a similar description of their relationship with Manulife.

35I find that the Application should be dismissed against Manulife and Ms. Pedrosa. The applicant alleges discrimination with respect to employment based on disability and colour. While the applicant makes statements about Manulife and Ms. Pedrosa in her Application, the references appear to relate to receipt of benefits. Given that both corporate respondents agree that First Canada is self-insured and there is no evidence to the contrary from the applicant, it would appear to the extent there is an issue regarding the receipt of benefits (which I am presuming from the Form 1A of the Application) the responsibility for the same lies with a respondent, First Canada, over which the Tribunal does not have jurisdiction.

36The Application against the respondents Manulife and Ms. Pedrosa is therefore dismissed.