Maria Voss v. Garda Canada Security Corporation and Satwant Grewal, 2013 HRTO 188

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Maria Voss

Applicant

-and-

Garda Canada Security Corporation and Satwant Grewal

Respondents

DECISION

Adjudicator: David A. Wright Date: February 1, 2013 Citation: 2013 HRTO 188 Indexed as: Voss v. Garda Canada Security Corporation

WRITTEN SUBMISSIONS

Garda Canada Security Corporation, Respondent

Michelle Rolston, Representative

Introduction

1This is an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”) alleging discrimination with respect to employment because of race, colour and sex. The issue in this Decision is whether the Application should be dismissed on the basis that it falls within federal jurisdiction. At the time of the events giving rise to the alleged violation of the Code, the applicant’s job was supervising guards at Pearson International Airport in Toronto. Aeronautics falls within federal jurisdiction, and the issue in this case is whether the Application therefore falls outside this Tribunal’s power to decide. For the reasons that follow, I find that this Application is outside the Tribunal’s jurisdiction.

BACKGROUND

2In Case Assessment Directions dated November 23, 2012, and December 3, 2012, the Tribunal sought information and submissions from the parties on the nature of the work done by the employees supervised by the applicant, whether the union representing them was certified provincially or federally, and whether the Application falls within provincial jurisdiction. The organization respondent made submissions, but the applicant and the individual respondent did not.

3The organization respondent states that the employees supervised by the applicant held the following duties:

Airside duties: these duties are performed in the restricted areas of the airport and includes [sic]; monitoring the loading and unloading of luggage on to the aircraft; providing security for the access to the airport, and providing security escorts and screening contractors working at the airport and on aircraft.

Access Control duties: duties include security guards being posted at restricted access points in the airport and are required to verify identification cards prior to allowing access to these areas.

Airside Vehicle Operator Permit: these duties include a guard driving a vehicle on the airport ramp and cargo area to monitor the ground operations of a docked aircraft. Additional duties include escorting other vehicles needing airside access.

4National Organized Workers is the certified bargaining agent for the employees the applicant supervised. The union is certified federally by the Canada Industrial Relations Board (“CIRB”) for the bargaining unit comprising:

all employees of Garda Canada Security Corporation providing access control airside at the Lester B. Pearson International Airport, Buttonville Airport, and Toronto City Centre Airport, excluding supervisors and those above the rank of supervisor and employees subject to another certification order issued by the Canada Industrial Relations Board.

ANALYSIS

5The applicant supervised unionized employees whose employment has been found to fall within federal jurisdiction. The applicant’s employment, as their supervisor, is regulated by the same level of government, as her work relates to the provision of the same security services. Therefore, if the CIRB is correct that the employment of airport guards doing this type of work falls within federal jurisdiction, the Tribunal has no jurisdiction to deal with this Application.

6The Federal Court of Appeal’s Decision in Syndicat des agents de sécurité Garda, Section CPI-CSN v. Garda Canada Security Corporation, 2011 FCA 302 (“Garda”) found that the labour relations of the security guards who ensure the detention of foreign nationals at immigration detention centres falls within federal jurisdiction. The Court reasoned that security services at the centres constitute a vital, essential, or integral part of the operations of the centre. In reaching its conclusion, the Court cited with approval a line of CIRB cases that held that the employment of airport perimeter guards falls within federal jurisdiction and made a direct analogy between guards at airports and guards at immigration detention centres.

7The Court held as follows, at paras. 65-71:

In Securiguard Services Limited, [2005] CIRB 342, the Board certified a union under the Canada Labour Code to represent a group of employees providing perimeter security at the Vancouver International Airport.

The Vancouver International Airport Authority does not hire its own employees to enforce the security aspects of the federal regulations which apply to it, but contracts out this responsibility to private specialized service providers through a competitive tender process. One of the aspects of airport security is perimeter security. Perimeter security refers to the control of restricted areas that are not accessible by the general public. This security service is provided by Securiguard’s employees and includes the control and monitoring of restricted area passes; surveillance camera operation; escort security for VIPs; and the checking or monitoring of access and entry of airport employees, airline crews and employees of service providers, as well as vehicle entry onto airport grounds, ramps and runways.

In Securiguard Services Limited, the Board noted that these security services were required pursuant to the Aeronautics Act, R.S.C., 1985, c. A-2, and were therefore different from those services provided for by Securiguard to its other clients. These services could therefore be reasonably severed. Given that these activities were essential for ensuring airport security, they fell under federal jurisdiction:

28Securiguard employees are permanently assigned to provide services to the airport and are trained specifically for these duties. Securiguard employees enforce on behalf of a federal undertaking, security measures developed in compliance with schedules to the Aeronautics Act, which is federal legislation. Securiguard employees must obtain valid restricted area passes issued by Transport Canada that are exclusive to the airport to be able to work there. Moreover, certification under the provincial Private Investigators Act and the Security Agencies Act (R.S.B.C., 1996, c. 374) is a general competence requirement of all persons who work as security guards within the province, but does not determine whether employees are governed by provincial labour legislation. As well, the services provided by Securiguard under contract to the Vancouver International Airport are separate from its contracts for services at other employers.

34In light of these answers, the Board is of the view that Securiguard’s services at the airport are sufficiently connected to the operations of the Airport Authority to be severable from more routine security contracts. There is no evidence that the cleaning staff, booksellers, shopsellers, food vendors and other service providers must similarly comply with the Aeronautics Act or that their operations are essential to the airport’s operation.

35Consequently, the Board views the work of Securiguard’s employees at Airport Authority as unique compared to the services it provides to other clients who operate under federal jurisdiction and distinct from its other contracts. The level and quality of work of Securiguard’s employees is totally dependent on the standards set by the airport, and the standards of service that apply at the Vancouver International Airport.

The Board reached a similar decision with respect to the security guards of the Canadian Corps of Commissionaires providing similar services at the Halifax Airport: Public Service Alliance of Canada v. Nova Scotia Division of Canadian Corps of Commissionaires, CIRB Letter Decision 1647.

Likewise, in A.S.P. Incorporated, [2006] CIRB 368, the Board recognized its certification jurisdiction with regard to security guards working for a security agency under contract with various clients and providing security services at the Toronto-Pearson Airport, including under a contract with SkyService for monitoring the doors to a hangar; a contract with TBI for customer service personnel at Toronto Terminal 3; ad hoc contracts with Aecon Construction and Torbear Construction for security services for the construction of Terminal 3; and various contracts with the Airport Authority for lost and found items at the airport, security at various airside locations at the airport and the monitoring of the Airport Authority building.

In that case (at paragraph 45), “it [was] clear to the Board that the employees of ASP [the sub-contractor] perform[ed] duties essential to airport security and that, in accordance with its obligations under the Aeronautics Act, the GTAA [Greater Toronto Airport Authority] could not operate without security services being in place.”

The analogy between airport perimeter services and the services provided by the security guards at the Immigration Prevention Centre is clear. In this case, the security guards perform tasks that are essential to the effective detention of foreign nationals held under a federal statute, the Immigration and Refugee Protection Act. These tasks are carried out in accordance with federal policies and directives. The CBSA could not effectively operate the Montréal area Immigration Prevention Centre without the services of the approximately 125 security guards provided by Garda.

8The Decision in Garda confirms that the type of work done by the applicant and those she supervised falls within federal jurisdiction. Its reasoning is convincing and I adopt it. Therefore, this Application falls outside the jurisdiction of the Tribunal. Any claim must be made to the Canadian Human Rights Commission.

ORDER

9The Application is dismissed.