Wave v. Canada Cartage Diversified GP Inc., 2012 HRTO 1362

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Danila Wave Applicant

-and-

Canada Cartage Diversified GP Inc., Direct Limited Partnership, Canada Cartage System Limited Partnership and Matthew Lawrence Respondents

DECISION

Adjudicator: Douglas Sanderson Date: July 10, 2012 Citation: 2012 HRTO 1362 Indexed as: Wave v. Canada Cartage Diversified GP Inc.

WRITTEN SUBMISSIONS

Danila Wave, Applicant Bruce Best, Counsel

Canada Cartage Diversified GP Inc., Direct Limited Partnership, Canada Cartage System Limited Partnership and Matthew Lawrence, Respondents Allyson Fischer, Counsel

1The applicant filed the enclosed Application on February 1, 2012 alleging discrimination on the basis of sex and reprisal in employment contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (“the Code”).

2On March 19, 2012, the Tribunal Registrar sent a Notice of Intention to Dismiss the Applicant to the applicant which noted that the Application appeared to be outside of the Tribunal’s jurisdiction because the respondents appeared to be federally regulated. The Tribunal required the applicant to provide written submissions regarding whether the Application is within the Tribunal’s jurisdiction by no later than April 18, 2012. The applicant did not make submissions regarding the Tribunal’s jurisdiction, but the Tribunal nonetheless found that it was not “plain and obvious” on the face of the Application that it was outside the Tribunal’s jurisdiction. Accordingly, the Tribunal sent to the respondents a copy of the Application, Notice of Application and the correspondence between the applicant and the Tribunal regarding the NOID letter. The Tribunal directed the respondents to file a full Response(s) to the Application and to file submissions on the issue of whether the organizational respondents are federally regulated enterprises.

3The respondents filed their Response on June 7, 2012, along with submissions regarding whether they are federally regulated enterprises. The applicant filed a Reply on June 22, 2012, in which the Applicant stated she had no submissions regarding the jurisdictional issue raised by the respondents.

Respondents’ Submissions

4The respondents submitted that the organizational respondents provide logistics services across Canada and their operations are fully integrated. The respondents state that the organizational respondents share a national head office in Mississauga, Ontario, report to the same board of directors and president, and share common customers.

5The respondents state that Canada Cartage Diversified GP Inc. and Canada Cartage System Limited (referred collectively as “Canada Cartage”) constitute the transportation division, which includes regularly transporting freight across provincial and international borders. The respondents submit that Canada Cartage is clearly federally regulated because transportation works and undertakings that extend beyond the limits of a province come within federal jurisdiction, pursuant to section 92(10)(a) of the Constitution Act 1867. The respondents noted this issue of jurisdiction has been litigated several times with respect to Canada Cartage, including before this Tribunal and it is well established that it is a federally regulated organization. The respondents pointed to decisions in which adjudicators have assumed jurisdiction over complaints filed under the Canada Labour Code: Farkas v. Canada Cartage System Ltd., [2006] C.L.A.D. 180 and Szemerey v. Canada Cartage System Ltd., [2000] C.L.A.D. 590. The respondents note that the Tribunal found Canada Cartage to be federally regulated in Rowland v. Canada Cartage Systems 2009 HRTO 1941.

6The respondents submit Direct Limited Partnership (“Direct”) operates the distribution and warehousing division of the business and has distribution warehouses across Canada. The individual respondent currently works for Direct, as did the applicant.

7The respondents submit that Direct is a necessary, integral and/or significant part of Canada Cartage, a federally regulated company. In addition to common corporate leadership and customer, the respondent state that Direct provides warehousing and distribution services to Canada Cartage’s customers. They state that much of the freight handled in the warehouse facility where the applicant was employed was destined to or arrived from locations outside of Ontario and Canada. The respondents submit that an entity that is necessary or integral to a federally regulated business will also come under federal jurisdiction and rely upon the Supreme Court of Canada decisions in Reference re: Industrial Relations and Disputes Investigation Act (Canada), 1955 CanLII 1 (SCC), [1955] S.C.R. 529 and Tessier Ltée v. Quebec (Commission de la santé et de la sécurité du travail), 2012 SCC 23. The respondents also rely upon OK Transportation Ltd., [2010] C.L.A.D. 194.

8The respondents submit that the applicant considered her employment to be governed by the Canada Labour Code, since she filed an unjust dismissal complaint with Human Resources Skills Development Canada on June 7, 2011. The respondents also note that the Ontario Ministry of Labour denied the applicant’s overtime and termination pay claim under the Employment Standards Act, 2000 for lack of jurisdiction because her employer is a common carrier in the trucking industry and therefore under federal jurisdiction. Further, federal adjudicative bodies have assumed jurisdiction regarding Direct’s employment / labour relations. The respondents cite Mohammed Samad, 2008 CIRB 421, a decision of the Canada Industrial Relations Board, pursuant to the Canada Labour Code, regarding a labour dispute involving Direct. The respondents note that the trade unions representing its employees are certified under the Canada Labour Code and the collective agreements negotiated with its union refer to the Canada Labour Code and “Federal Labour Standards”.

9The respondents submit that, from a public policy perspective, Direct should be federally regulated in order to avoid a multiplicity of proceedings in different jurisdictions.

Decision

10Pursuant to subsection 92(10)(a) of the Constitution Act, 1867 (U.K.), 30 & 31 Victoria, c. 3, transportation works and undertakings that extend beyond the limits of a province are within federal jurisdiction. As the applicant made no submissions, there is no evidence before me to contradict the respondents’ position that Canada Cartage transports freight across provincial and international border or that Direct, as the warehousing division of the business, is an integral part of that business. The organizational respondents’ labour and employment matters have clearly been regulated pursuant to the Canada Labour Code, the federal labour relations, workplace health and safety and employment standards legislation, for some time.

11In the circumstances, I am satisfied that the organizational respondents are federally regulated companies. Therefore, the Tribunal has no jurisdiction to deal with this Application and it is dismissed.