Swift v. Bell Technical Solutions, 2013 HRTO 210

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Robert Swift

Applicant

-and-

Bell Technical Solutions Inc.

Respondent

DECISION

Adjudicator: Pamela A. Chapman

Date: February 5, 2013

Citation: 2013 HRTO 210

Indexed as: Swift v. Bell Technical Solutions

APPEARANCES

Robert Swift, Applicant

Bruce Best, Counsel

Bell Technical Solutions Inc., Respondent

Sarah Crossley, Counsel

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging discrimination with respect to employment because of disability. The Application, filed on September 18, 2008, relates to the respondent's decision not to allow the applicant to return to work since January of 2005. The applicant has addiction and mental health disabilities.

2The respondent denies any breach of the Code, but also takes the position that the Application does not fall within provincial jurisdiction. It says that labour relations within the respondent company ("BTS"), which installs, maintains and repairs telephone and broadband equipment, fall under exclusive federal jurisdiction, because that work is done for a federal undertaking, Bell Canada, and its customers. The respondent asks that the Application be dismissed on that basis. The applicant asserts that BTS falls within provincial jurisdiction and asks the Tribunal to hear and decide the Application.

3In an Interim Decision dated July 19, 2010, the Tribunal ordered that a hearing be held to hear the parties' submissions on the question of constitutional jurisdiction, and that hearing was convened on November 24, 2010. Release of a decision on the request for dismissal has been substantially delayed due to personal and professional complications on my part, for which I extend my apologies to both counsel and to the parties.

LEGAL ISSUES & PRINCIPLES

4This Application raises the general issue of whether a human rights complaint challenging the actions of BTS as an employer falls within provincial or federal jurisdiction. If federal, the Application must be dismissed, as the Tribunal has no jurisdiction to hear it.

5Given the constitutional framework for determining provincial or federal jurisdiction, which is detailed below, the more precise issues to be determined in this Decision are:

(i) Does the work performed by the employees of BTS form a vital, essential or integral part of a core federal undertaking, Bell Canada?

(ii) If so, does the Code apply to the actions of BTS as an employer?

6The division of powers between the federal and provincial governments in Canada is governed by sections 91 and 92 of the Constitution Act, 1867 (U.K.), 30 & 31, Vict. c. 3. Section 91 assigns to the federal government a general power to make laws for the "Peace, Order, and good Government of Canada", in relation to all matters not coming within exclusive provincial jurisdiction. As well, s. 92(10) exempts from provincial jurisdiction local works and undertakings that fall within certain classes, including, in sub-section (a) "Telegraphs, and other Works and Undertakings connecting the Province with any other or others of the Provinces, or extending beyond the Limits of the Province", and in sub-section (d) "Such Works as, although wholly situate within the Province, are before or after their Execution declared by the Parliament of Canada to be for the general Advantage of Canada".

7Earlier case law has established that telecommunications falls within federal jurisdiction under s. 92(10)(a). Bell Canada ("Bell") is further established as falling within federal jurisdiction as a result of the Bell Canada Act, S.C.1987, c. 19, s. 5, which declares the works of the company to be works for the general advantage of Canada. The decision in Bell Canada v. Quebec (Commission de la santé et de la sécurité de travail), 1988 CanLII 81 (SCC), [1988] 1 S.C.R. 749, confirmed that Bell, and its labour relations, fell within federal jurisdiction.

8The question in this case, then, is whether the relationship between Bell and BTS draws the work performed by BTS employees into the federal sphere, so as to require the extension of federal jurisdiction to BTS, and to its labour relations. Evidence on BTS and its relationship with Bell was introduced through various statements of fact and documents supporting those statements. The respondent answered a series of questions posed in writing by counsel for the applicant, in order to clarify the relevant facts. The parties then made argument based upon the stated facts and the documents.

9Once the question of federal jurisdiction is determined, I must determine whether or not the Application should be dismissed. According to Rule 13.1, the Tribunal may, on its own initiative or at the request of a respondent, dismiss part or all of an Application that is outside the jurisdiction of the Tribunal. The respondent in the present case asks that I dismiss the Application on this basis.

CONCLUSION

10For the reasons set out below, I find that the Application falls within federal jurisdiction, and is thus outside the jurisdiction of the Tribunal. The Application is therefore dismissed.

SUMMARY OF EVIDENCE, ANALYSIS & DECISION

Background: Application

11It is necessary to provide some facts concerning the merits of the Application, as the timing of these events may be relevant to the argument of the applicant on the jurisdictional question.

12The applicant began employment with a predecessor of BTS, as an Installation and Repair Technician, in 1996. This work involved travelling to customer sites and other field locations to install, repair and maintain various telephone equipment. He was absent from work on short-term sickness leave from July 10 to August 2, 2004, and then went off sick again on January 24, 2005. He was paid short-term sickness benefits for the first few days, and the respondent then filed forms for him to qualify for long-term disability benefits. However, the applicant did not file a long-term disability claim until October 2005, and his claim was denied because it was filed more than 90 days after the date of disability; an appeal to the benefit provider was also rejected. The applicant has subsequently been in and out of various treatment programs for disabilities.

13The applicant claims that BTS refused multiple requests by him to return to work. It is admitted that he contacted the employer on October 6, 2005, providing a note from a doctor. The respondent asserts that this note was not adequate to establish that he was medically fit to return to work, and was not from a treating physician. The respondent also acknowledges receiving a message from the applicant in March 2006, which it was unable to return as the applicant was in a treatment facility. Other than that, it appears that the applicant's claims about the employer's actions are disputed. The applicant asserts that his final attempt to contact the company was in March 2008.

14As noted above, the Application was filed in September 2008. For this reason the respondent submits that, even if the Tribunal has jurisdiction over the complaint, it should dismiss the complaint for delay.

15Throughout his employment the applicant was represented by a union, the Communications, Energy and Paperworkers' Union of Canada ("CEP").

16The respondent went through various corporate changes, and from 1999 to 2008, CEP and the employer agreed that its labour relations fell under provincial jurisdiction. On August 21, 2008, CEP filed an Application with the Canada Industrial Relations Board ("CIRB") under s. 44 of the Canada Labour Code, R.S.C. 1985, c. L-2, seeking a declaration that there had been a sale of a provincial business and that labour relations fell under federal jurisdiction. Following mediation, the parties filed an agreed statement of facts and jointly sought a declaration from the CIRB that the respondent's labour relations fall under federal jurisdiction. On the basis of that agreed statement of facts, the CIRB issued a declaration on December 9, 2009, that the respondent falls within federal jurisdiction for the purposes of Part I of the Canada Labour Code.

17Following that decision, the respondent raised its objection to the Tribunal's jurisdiction, and in April 2010, while the parties were still in mediation, it filed a Request for Order during Proceedings submitting that BTS falls within federal jurisdiction, and that the Application should be dismissed on that basis.

Constitutional Framework

18The analytical framework for determining whether or not a related enterprise falls within federal jurisdiction because of its connection to a federal undertaking was accepted by both parties. On May 17, 2012, the Supreme Court of Canada issued its decision in Tessier Ltée v. Quebec (Commission de la santé et de la sécurité du travail) 2012 SCC 23 ("Tessier"). This decision deals with constitutional jurisdiction over labour relations, and references the Court's key jurisprudence on the divide between provincial and federal jurisdiction. It also discusses two earlier decisions dealing with subsidiaries of Bell, in which the Court set out various factors central to the analytical framework: Northern Telecom Ltd. v. Communications Workers of Canada, 1979 CanLII 3 (SCC), [1980] 1 S.C.R. 115 ("Northern Telecom I"), and Northern Telecom Ltd. v. Communications Workers of Canada, 1983 CanLII 25 (SCC), [1983] 1 S.C.R. 733 ("Northern Telecom II"). In Tessier the Court revisits these decisions, and asks and answers the question of what should be the appropriate analytical framework in determining division of powers disputes.

19The parties were given an opportunity to make submissions concerning the decision of the Supreme Court in Tessier, and both counsel provided brief arguments in writing.

20It is well established that federal jurisdiction over labour relations is an exception to the general rule that it is the provinces that govern labour relations. The onus to demonstrate that an entity falls within federal jurisdiction falls to the party making that claim. Provincial statutes such as the Code do not apply to a federal undertaking where the application of such laws would impair a vital or essential part of the core of the federal undertaking pursuant to the doctrine of interjurisdictional immunity. See Canadian Western Bank v. Alberta, 2007 SCC 22, [2007] 2 S.C.R. 3. Labour and employment relations have been found to fall within this core.

21Federal jurisdiction over labour relations may be established in two ways: directly, when the employment relates to a work, undertaking or enterprise within the legislative authority of Parliament; or when the work performed by an entity not directly federally regulated, is an integral part of another federally regulated undertaking, sometimes referred to as derivative jurisdiction. In Tessier, the Court restates the criteria for derivative federal jurisdiction, emphasizing the importance of assessing whether the work of the related enterprise, in its "essential operational nature", renders it integral to a federal undertaking.

22After reviewing a range of decisions in which the Court considered arguments asserting either direct or derivative federal jurisdiction, the Court in Tessier summarized the Court's approach as follows at paragraph 46:

...this Court has consistently considered the relationship from the perspective both of the federal undertaking and of the work said to be integrally related, assessing the extent to which the effective performance of the federal undertaking was dependent on the services provided by the related operation, and how important those services were to the related work itself.

23The Court also seems to endorse the notion, asserted by Justice McLachlin (as she then was) in a dissent in Westcoast Energy Inc. v. Canada (National Energy Board), 1998 CanLII 813 (SCC), [1998] 1 S.C.R. 322, that "different decisions have emphasized different factors and there is no simple litmus test" (at para. 45).

24However, the Court does summarize its decisions to highlight two contexts in which the Court has applied the derivative jurisdiction test for labour relations to confirm federal jurisdiction: (1) when the services provided to the federal undertaking form the exclusive or principal part of the related work's activities; and (2) when the services provided to the federal undertaking are performed by employees who form a functionally discrete unit separate from the rest of the related operation (as in Northern Telecom II). The Court contrasts these two situations with the more difficult facts presented by the Tessier case, where the employees performing the work did not form a discrete unit and were fully integrated into the otherwise provincial functions of the related operation.

25The Court also references with approval the criteria discussed in the two Northern Telecom decisions. In Northern Telecom II at p. 755, the Court relied upon the following criteria, adapted to that case, from the previous decision in Northern Telecom I:

(1) the general nature of Telecom's operation as a going concern and, in particular, the role of the installation department within that operation;

(2) the nature of the corporate relationship between Telecom and the companies that it serves, notably Bell Canada;

(3) the importance of the work done by the installation department of Telecom for Bell Canada as compared with other customers;

(4) the physical and operational connection between the installation department of Telecom and the core federal undertaking within the telephone system and, in particular, the extent of the involvement of the installation department in the operation and institution of the federal undertaking as an operating system.

26In the present case, the respondent submits that the labour relations of BTS falls within federal jurisdiction as the work of BTS is essential to a federal undertaking, Bell. In order to assess that claim, it is necessary to carefully examine the nature of the work performed by BTS, and its relationship to Bell, in order to determine the extent to which the effective performance of Bell, as a federal undertaking, is dependent upon the work of BTS, and how important the work done for Bell is to BTS as a going concern. In order to structure that analysis, I will consider the facts under the headings suggested by the factors set out in Northern Telecom I and II, making reference as well to the considerations emphasized in the recent decision in Tessier.

Corporate Relationship between Bell and BTS

27The second factor set out in the Northern Telecom decisions is the nature of the corporate relationship between the federal undertaking and the related enterprise. Evidence was heard about a series of corporate reorganizations, which led to the creation of BTS and its predecessors, and about Bell's ongoing ownership interest in BTS.

28Bell is a telecommunications company which provides local and long distance telephone services, wireless voice and data systems, internet services and satellite television.

29Entourage Technology Solutions ("ETS"), the predecessor of BTS, was formed in 1995 following an extensive reorganization of Bell. A decision of the Canadian Radio-Television and Telecommunications Commission ("the CRTC") permitted Bell to stop providing inside wiring and telephone jack hardware services ("inside wire services") to its customers, which it had previously been compelled to provide on an exclusive basis. Bell created a new independent company, ETS, to provide those services, and entered into an agreement with CEP that the employees of ETS would be represented in a separate bargaining unit; that agreement remains in the current collective agreement. The ETS bargaining unit that was created continued to be represented by CEP, but was certified provincially. More than 800 Bell employees moved to ETS and received voluntary severance packages from Bell.

30When ETS was formed, Bell retained 25% ownership of the company. Its ownership stake later increased to 33%, and then to 90%, and finally to 100% in 2005, when the company became a wholly-owned subsidiary (on April 30, 2005) and was renamed Bell Technical Solutions ("BTS") (on November 1, 2005).

31As the Court noted in Northern Telecom I, the corporate relationship and degree of ownership between a federal undertaking and related enterprise is not a controlling factor. However, the Court in that case also noted that "the fact that Bell Canada controls Telecom makes it somewhat easier to conclude a segment of Telecom's operations is an integral part of Bell Canada's operations" (at p. 5). In Northern Telecom I, Bell was not the direct owner of Telecom, but owned 60.5% of the company which was the owner. In the present case, BTS is a wholly-owned subsidiary of Bell, which means that the nature of the corporate relationship between the two companies provides support for a finding of integration.

The Nature of BTS' Operations: role and volume of work done for Bell

32The most critical evidence before me consists of the facts concerning the various arrangements which have governed the performance by BTS and its predecessors of installation, maintenance and repair work on telephone equipment within the system operated by Bell. This evidence permits the consideration of the other Northern Telecom factors, including the first and third, which deal with the importance of the work done for the federally regulated undertaking from the perspective of the related enterprise. Northern Telecom I and II suggest that these factors require an examination of the general nature of BTS' operation as a going concern, considering both the role of the work done for Bell and its customers within BTS' operations as a whole, and the importance of the Bell work as compared with other customers serviced by BTS.

33The relationship between Bell and ETS/BTS has always been governed by a Services Agreement, which has been amended from time to time, and has been supplemented by various other agreements, many of which were entered into evidence in this proceeding.

34These documents establish BTS as the preferred supplier to Bell in Ontario and Quebec for Network Services, FMS (Field Management Services), Installation, Repair and Maintenance Services. While other suppliers do perform some of this work for Bell, Bell has repeatedly committed, through the Services Agreement, to obtain between 50 and 80% of its requirements for outsourced labour services in Ontario from BTS.

35BTS does no work for any other companies; 100% of its work is done for Bell or Bell's clients.

36As well, BTS' operations are made up entirely of the services it provides to Bell; it is entirely occupied with the provision of the services described in paragraph 34. As a result, there is no issue, as there was in the Northern Telecom cases, as to the degree of integration between employees performing work for the federally regulated entity, and employees performing other work clearly falling within provincial jurisdiction.

37These facts strongly support a finding of integration, and are much more clear-cut than the facts reviewed in earlier cases, such as the Northern Telecom decisions, where only a portion of the work of the related enterprise was involved with the federal undertaking. Indeed, this case seems a good example of the situation described by the Court in Tessier as one where derivative jurisdiction will likely be found: "when the services provided to the federal undertaking form the exclusive or principal part of the related work's activities". The fact that BTS works entirely for Bell and its customers also establishes that its services to Bell are critically important to its ongoing operations, which goes to the second part of the question framed by the Court in Tessier, as set out in paragraph 22 above.

Nature of BTS' relationship with Bell: physical and operational connections

38Counsel for the applicant argued that, in assessing how much work BTS does for Bell, I should draw a distinction between work done directly for Bell, in that the equipment worked on belongs to Bell, versus work done by BTS technicians to install, maintain or repair equipment on the premises of Bell customers. As this distinction relates as well to the fourth factor, upon which the argument of both parties focused, I will deal with it below.

39The evidence concerning the various arrangements that have governed the performance by BTS of installation, maintenance and repair work within the system operated by Bell, also reveals the physical and operational connections between the two companies. This permits consideration of the fourth factor, which is perhaps most important in assessing the extent to which BTS and Bell are integrally related. Centrally, I must consider the extent to which the effective performance of Bell's operations is dependent upon the services provided by BTS.

40When a customer of Bell in Ontario or Quebec requires any of the work done by BTS to be performed, Bell dispatches the work to BTS, and it is assigned to a technician, who goes to the appropriate location and installs, repairs or maintains the equipment, depending on the nature of the problem. BTS employees may require the assistance of Bell to resolve some problems, including contacting Bell employees to find a dial tone. In order to provide the requested services to a customer, BTS employees will regularly work on equipment owned by a customer, which may include telephones, routers, jacks within a home, etc. BTS employees may also have to access and/or work on equipment owned by Bell, outside of the customer's home, including JWI's (jumper wire interface, which are boxes containing wires which connect to the high-speed network) and cross boxes or OPI's (outside plan interface). Since 2005 they have also performed repair and maintenance duties in central offices, which is work done entirely on equipment owned by Bell.

41In order to do the work described above, BTS is provided access to Bell's software programs and systems. The services agreement provides that Bell is to provide this access "in the same manner and level as it does to Bell technician and management personnel", and at no cost to BTS.

42One of the key issues in determining the scope of the work of BTS vis-à-vis Bell is the notion of a demarcation point, which divides the work potentially done by BTS employees from work properly done only by Bell. When ETS, the predecessor of BTS, was first established in 1995, this demarcation point was critical to the separation of ETS work from that of Bell. It also permitted ETS to be considered a provincial company for labour relations; as noted above, the CEP was certified provincially to represent the bargaining unit in Ontario. For some time after the formation of ETS, employees of ETS were only permitted to work on equipment inside customers' houses, up to the exterior jack where telephone lines came in from Bell's network. The ETS work was considered "inside" work, to be contrasted with the "outside" work done by Bell. The respondent acknowledged that, prior to 1997, if a job dispatched to ETS required any work to be done "outside", the work would generally be referred to a Bell technician.

43However, there was evidence that the demarcation point has shifted over the years. As early as 1997, Bell began to provide increasing access to its equipment. Over time BTS employees have performed increasing work outside of customers' homes or offices, including work within various connection boxes such as jumper wire interfaces and cross boxes, as well as work within central offices, as described above. No clear date was identified as the key point at which ETS/BTS employees began to do "outside" work: the shift was characterized as gradual and ongoing, with all of the duties described in paragraph 26 being performed by BTS as of 2005, when the company became a wholly-owned subsidiary of Bell. Work done by BTS also expanded and changed as it began to work on high-speed internet services, in addition to the telephone equipment it had previously been responsible for installing and repairing.

44Based on these facts, counsel for the respondent argues that the work of BTS is integral to Bell's telecommunications network, and that Bell is dependent upon the work of BTS in order for its network, and its services to customers, to be complete. In support of that submission counsel points to the fact that the installation, maintenance and repair work done by BTS are normal and habitual elements of Bell's business, not exceptional or casual elements. As well, they are ongoing and continuous functions, woven through the operation of the system – not, for example, a construction or development situation where work is done to create or expand a system, but is then complete. The respondent asserts that the work of BTS is essential to Bell's business: the telecommunications network it operates, and upon which it depends for its economic success, would not function without the installation, maintenance and repair of the equipment and systems worked on by BTS, which connect customers to the system, and maintain those connections.

45As noted above, the applicant relies on the ability to distinguish "inside" and "outside" work – through the notion of a "demarcation point" – to argue that the work of BTS is not integral to the work of Bell. Essentially, counsel argues that BTS employees do not work on the telecommunications system operated by Bell, except incidentally – he submitted that the core work of BTS is done for Bell's customers, inside their premises, and is thus not work on Bell's system proper.

46It is true that there was no clear evidence about the proportion of the work done by BTS employees entirely on customers' equipment, versus the amount of work where a technician must use or work upon Bell equipment, including various interface components (JWI's, cross boxes, OPI's, etc.) and the equipment in central offices, in order to complete the installation, maintenance or repair task assigned. Counsel for the respondent explained the lack of any evidence on that issue on the basis that it is not information collected by BTS, because the work of its employees is not divided on that basis. She asserted that this supports the notion that the work of technicians is fluid and not easily divided in the way suggested by the applicant; and that this evolution of their work towards increasing work in and on the Bell system has been ongoing and inevitable as the technology has evolved.

47The applicant relies upon a 2008 decision, made by an adjudicator appointed under the Canada Labour Code to deal with a complaint of unjust dismissal, in support of his argument concerning the importance of the "demarcation point" in determining whether or not the operations of BTS and Bell are integrated within the meaning of the cases. In Jones v. CanCable Inc., [2008] C.L.A.D. No. 132 ("CanCable"), a federal adjudicator was appointed to hear the complaint of a technician employed by CanCable to install cable outlets in the homes of customers of a federally regulated cable television provider, Cogeco. CanCable objected to his appointment on the basis that its work was provincially regulated. The adjudicator acknowledged a degree of integration between the two companies, but ultimately concluded that the work of CanCable was not integral to the core operations of Cogeco. This conclusion was based, at least in part, on the fact that the CanCable technicians performed work only in customers' homes and at the "pedestal" at which customers' cable would be attached to the cable network operated by Cogeco, and performed "no real work on the network".

48I have carefully considered the CanCable decision, but there are important distinctions between that case and this one which reduce its relevance to the issues before me. First, the other factors outlined in Northern Telecom I and II, and in Tessier, as discussed above, were not present in that case. CanCable was not owned by Cogeco, and, while it had an exclusive contract to provide residential installation services to Cogeco in various municipalities in Ontario, it also worked for another large cable company in the same areas.

49More important, though, are the distinctions in the facts as they relate to the integration between the operations of CanCable and Cogeco. Critically, the technicians working for CanCable never worked on any equipment owned by Cogeco; they were not permitted to touch any part of Cogeco's cable network, and could troubleshoot a problem with a connection only to the "pedestal" where the customer's cable would be attached to the network. This contrasts with the undisputed evidence in this case, that BTS employees are able to work on Bell equipment of the sort described in paragraph 40, up to and including the equipment in central offices, in order to install or repair a customer's connection to the network. As well, the employees in CanCable were involved only in installation – the review of the evidence makes no reference to maintenance or repair work once a customer's cable has been connected to the system operated by Cogeco, other than the initial limited troubleshooting at the pedestal. This is an important difference, which permitted the work of CanCable to be clearly delineated from the ongoing operation of the cable system, unlike the ongoing work of BTS employees as described in the present case. Essentially, once CanCable's installation was complete – even where it had not succeeded in connecting the customer to the Cogeco system – Cogeco's employees took over. The adjudicator in CanCable decided, based upon these facts, that the technicians did not "participate in the actual operation of the network", contrasting that conclusion to the decision reached in Northern Telecom II.

50Northern Telecom II is a decision of some importance to the case before me, not only because in it the Court inventoried important factors relevant to a derivative jurisdiction case, but also because it dealt with the constitutional jurisdiction of a Bell subsidiary which, like BTS, provided installation services under contract to Bell.

51In Northern Telecom II, the Court considered evidence about the work done by employees of Telecom who installed equipment, some of it manufactured by Telecom and some by other companies, in the telecommunications network operated by Bell. Much of the installation work done by Telecom employees was on Bell premises, to Bell equipment; installation for customers of Bell was not the major component of their work. On the other hand, there were also strict limits to the work done by Telecom installers, in that the actual "switching" of the equipment, in order to bring it into operation as a part of the network, was done by Bell. Maintenance of the network was also the responsibility of Bell; Telecom employees were only involved in installation. As noted above, the other factors enumerated in the first Northern Telecom decision – corporate ownership and the importance of the work to the related enterprise, in terms of volume and the relationship between the work in question and the overall work of the company – were not as persuasive as in the present case. While Bell had a significant ownership interest in the company that owned Northern Telecom, it was not a wholly-owned subsidiary, and it did not work only for Bell (although 80% of the work of the installers was for Bell). As well, Northern Telecom's main business was the manufacture of telephone equipment, meaning that installation was not its core business (although the installation employees did form a discrete unit, which the Court relied upon in finding federal jurisdiction).

52On these facts, the Court found that Northern Telecom "installs integral equipment" in a core federal undertaking, a telecommunications system, focusing on the "macro-relationship between the work of the subsidiary operation and the functioning of the core undertaking" (at p. 766). The Court concluded:

The almost complete integration of the installers' daily work routines with the task of establishing and operating the telecommunications network makes the installation work an integral element in the federal works. The installation teams work the great bulk of their time on the premises of the telecommunications network. The broadening, expansion and refurbishment of the network is a joint operation of the staffs of Bell and Telecom. The expansion or replacement of the switching and transmission equipment, vital in itself to the continuous operation of the network, is closely integrated with the communications delivery systems of the network. All of this work consumes a very high percentage of the work done by the installers.

[T]he assignment of these labour relations to the federal sphere reflects the nature of the work of the employees in question, the relationship between their services and the federal works, the geographic realities of the inter-provincial scope of the work of these employees transcending as they do several provincial boundaries, and the close and complete integration of the work of these employees and the daily expansion, refurbishment and modernization of this extensive telecommunication facility. [pp. 766-68.]

53There are significant differences between the installation work done by Northern Telecom in 1983, when Northern Telecom II was decided, and the work now done by BTS. Perhaps most importantly, the work done by the Telecom installers was largely on the Bell system itself, and only marginally for customers. But, on the other hand, other factors important to the assessment of constitutional jurisdiction, including the importance of the work done for Bell to BTS, the degree of integrated ownership, and the range of work done by the installers – including not only installation but ongoing maintenance and repair of the system – are stronger than in the case of Northern Telecom II.

54In the present case, I have concluded that the work of BTS is integral to the telecommunications system operated by Bell, a federal undertaking. The operations of the two companies, in terms of the installation, maintenance and repair of key components of the system, are highly integrated, permitting customers to reliably access both the telephone and high-speed internet systems. Bell is dependent upon the work done by BTS employees to a significant degree, and the work for Bell is central to the ongoing operations of BTS, making up 100% of its work. For these reasons, I find that BTS is a related enterprise integral to a core federal undertaking, telecommunications.

Earlier Decisions on Constitutional Jurisdiction over BTS

55One final issue is of some importance to my conclusion in this case. As noted above, at the time that ETS, the predecessor to BTS, was established, its bargaining unit was certified provincially. However, more recently both CEP and the employer have asserted that the company should fall within federal jurisdiction, and various tribunals have agreed.

56As noted above, in December 2009 the CIRB found the labour relations of BTS to fall within federal jurisdiction, based upon an agreed statement of facts, and with the consent of the union and BTS. The applicant argued that the Tribunal is not bound by the decision of the CIRB, particularly given that the decision issued following a consent request. It is true that I am not bound to follow the CIRB, but it is also true that the legal rights of employees and the employer will be uncertain and there will be unnecessary confusion over appropriate forums if there is not agreement on the constitutional jurisdiction over labour relations for BTS.

57In November 2010, an arbitrator similarly issued a decision under federal jurisdiction, finding that the employees of BTS are entitled to the Remembrance Day holiday pursuant to the Canada Labour Code.

58In August 2010, the Commission des droits de la personne et des droits de la jeunesse Quebec dismissed a human rights complaint filed by an employee of BTS, on the basis that the application fell within federal jurisdiction.

59These decisions provide some support for my conclusion that BTS falls within federal jurisdiction, and I cite them for that reason.

Other issues: timing

60There is one further issue that I must address before concluding these reasons. The applicant relied upon the fact that BTS and CEP entered into an agreement for the union to be certified provincially in 1999, and continued to govern themselves as falling within provincial jurisdiction until the joint application to the CIRB in 2009. Counsel argued that the union and employer were correct then, and still correct now, but in the alternative he submitted that, if there had been a change in the work performed by technicians so as to support federal jurisdiction, that happened after the events about which the applicant complains. Thus, he asserted, the Tribunal should still take jurisdiction over the Application.

61The main evidence asserted in support of this claim is the fact that BTS employees did not work on equipment at Bell central offices until some time after 2005. The applicant also noted that evidence about when BTS employees began to work on other Bell equipment, such as connections of various sorts, was vague, and there was no clear evidence of when this work came to be performed regularly, or how much of it is done. He argued that, as of 2005, BTS still fell within provincial jurisdiction.

62On the facts asserted in the Application, it is not clear that 2005 is the critical timeframe, even if there was evidence to support the claim that a critical shift in the work done by BTS employees occurred only after 2005. As noted above, the applicant's last day of work was in early 2005, but his complaint about the actions of the employer focuses on his request to return to work in October 2005, and then his continuing requests to the employer until 2008. His claim of continued efforts over these years to contact the employer to arrange a return to work is important to the issue of delay.

63As well, it is not clear on the facts before me that a significant change in the work done by BTS occurred only after the facts critical to the applicant's claim crystalized. Furthermore, it is also possible that the parties were mistaken in their earlier agreement that CEP could be certified provincially; certainly there was no earlier legal determination of constitutional jurisdiction.

64Perhaps most importantly, the applicant advanced no legal authorities to support the assertion that the Tribunal can now take jurisdiction over a complaint involving a federally regulated entity, on the basis that it was, at some earlier point, within provincial jurisdiction. It is not clear on what basis the Tribunal could now convene a hearing, or provide a remedy, without present jurisdiction. In these circumstances I do not see any basis on which I could find that the Tribunal has jurisdiction over the Application, and I decline to do so.

CONCLUSION

65For the reasons set out above, I conclude that the work performed by BTS falls within federal jurisdiction.

66The jurisdiction of the Tribunal arises from the Code, which is provincial legislation. Having found that BTS's labour relations fall within federal jurisdiction, the Code does not apply to its actions as an employer. The Tribunal therefore has no jurisdiction to hear the Application.

67The Application is dismissed.