Margaret Domingo v. Garda Canada Security Corporation, 2012 HRTO 1394

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Margaret Domingo

Applicant

-and-

Garda Canada Security Corporation

Respondent

INTERIM DECISION

Adjudicator: Eric Whist

Date: July 16, 2012

Citation: 2012 HRTO 1394

Indexed as: Domingo v. Garda Canada Security Corporation

WRITTEN SUBMISSIONS

Garda Canada Security Corporation, Respondent

Gordon Schantz, Representative

Introduction

1This Application which was filed on January 23, 2012 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleges discrimination in employment on the basis of creed.

2On June 14, 2012 the respondent wrote to the Tribunal to request that the Application be dismissed on the basis that the employment relationship between the applicant and the respondent is federally regulated and as such the Tribunal has no jurisdiction to consider the Application. The respondent submits that the respondent is contracted by several clients at Toronto Pearson International Airport to provide employees, such as the applicant, to these clients for security services. The employees who work at these locations are subject to a collective agreement between the respondent and the National Organized Workers Union (“NOWU”). The respondent submits that all members of NOWU are covered under federal jurisdiction. I was also provided with copies of the current Collective Agreement between the respondent and the applicant and NOWU’s certification by the Canadian Industrial Relations Board which states that NOWU is certified to be the bargaining agent for a unit comprising of “All employees of Garda Canada Security Corporation providing access control airside at the Lester B. Pearson International Airport…”

3On June 18, 2012 the Tribunal wrote to the applicant to inform her of the respondent’s request to dismiss and to direct the applicant to provide submissions in response to this request by July 3, 2012. The applicant has not provided submissions as directed.

4I have reviewed the information provided by the respondent in its Request and the information provided by the applicant in her Application. I do not find that I can make a determination as to whether the Tribunal has jurisdiction in this matter based on the written materials before me.

5I do recognize that the operation of an airport falls within the area of aeronautics, which is a matter of exclusive federal jurisdiction. I also recognize that Parliament can have exclusive jurisdiction over labour relations and conditions of employment related to an aeronautic undertaking for work that is vital, essential and integral to the operation of that undertaking. I further recognize that there have been legal determinations in other contexts that persons providing security in airports can be providing a function that is vital, essential, or integral to the operation of an airport such that the doctrine of interjurisdictional immunity would apply to preclude the application of provincial laws to them and which brings them within exclusive federal jurisdiction (see Public Service Alliance of Canada v. Canadian Corps of Commissionaires, 2006 I 63608 (NB L.E.B).

6The jurisdictional question is one that is resolved with a factual inquiry into a number of factors including the nature of the respondent’s operations and the role of their work within the federal operation (the airport); the nature of the respondents’ relationship with the airport; the importance of their work for the airport and the physical and operational connection between the respondent’s work and the airport and the extent of the involvement of the respondent’s work at the airport in the operation and institution of the airport as an operating system (R v. EllisDon Corporation Ltd. 2008 ONCA 789).

7At this point, however, I do not have sufficient information to answer this factual inquiry. What is not clear in this case is the nature of the applicant’s specific job responsibilities. In her Application she refers to being assigned by the respondent to provide security to a corporate client operating at the airport. There is no detail in the Application as to the nature of the work performed by this corporate client within the context of the operation of the airport nor the nature of the security services the applicant performed. The respondent has provided limited information about either the applicant’s specific job duties or its work at the airport except to state that it is contracted by several clients at Toronto Pearson International Airport to provide employees, such as the applicant, to these clients for security services. The Collective Agreement I have before me does appear to indicate that the respondent’s employees provide not only “access control airside”, a job function referenced in NOWU’s certification but also other access control in the airport. This information is too general and not sufficient at this point to determine the issue of whether the Tribunal has jurisdiction to consider the Application. According to the respondent, the union the applicant belongs to obtained certification from the Canadian Industrial Relations Board, however, this fact alone is not determinative of the jurisdiction issue before me (NIL/TU,O Child and Family Services Society v. B.C. Government and Service Employees' Union, 2010 SCC 45, [2010] 2 SCR 696).

8Based on the limited written information before me it is not plain and obvious, in my view, that providing security in the context described in the Application necessarily means that the applicant’s work is vital, essential or integral to the core of the federal undertaking such that the application of the Code would impair a vital or essential part of the undertaking (see for example R v. EllisDon Corporation Ltd. 2008 ONCA 789). At this stage, therefore, I am not prepared to find that the Application should be dismissed for this jurisdictional issue. In the circumstances, the Tribunal therefore directs the respondent to file a Response (Form 2) to the Application within 35 days of the date of this Interim Decision. Upon receipt of the Response, the Tribunal will determine how to proceed, including how the issue of jurisdiction might be considered.

9I am not seized of this matter