Qbue v. Cancable Inc. c.o.b. as Dependable HomeTech, 2013 HRTO 30

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Fadi Qbue

Applicant

-and-

Cancable Inc. c.o.b. as Dependable HomeTech

Respondent

INTERIM DECISION

Adjudicator: Douglas Sanderson

Date: January 7, 2012

Citation: 2013 HRTO 30

Indexed as: Qbue v. Cancable Inc. c.o.b. as Dependable HomeTech

WRITTEN SUBMISSIONS

Fadi Qbue, Applicant

Stephen Ellis, Counsel

Cancable Inc. c.o.b. as Dependable HomeTech, Respondent

Brent Foreman, Counsel

1This is an Application filed 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 disability. This Interim Decision addresses the respondents’ position that the Tribunal does not have jurisdiction to deal with the Application because the respondent is federally regulated.

SUBMISSIONS

2The respondent filed a Response in which it requested Dismissal without Full Response because the issues in dispute in the Application are within exclusive federal jurisdiction. The respondent stated that it provides contracted installation, trouble shooting, repair and other functions to residential customers of Rogers Cable Communications Inc. (“Rogers”) regarding cable, telephone and/or internet services offered by Rogers. Accordingly, the respondent submitted that it provides services associated with telecommunications, which fall under the legislative authority of the federal government pursuant to section 92(10)(a) of the Constitution Act, 1867, (UK), 30 & 31 Victoria, c.3.

3In particular, the respondent submitted that the question of whether the respondent is a federally regulated entity was decided by the Federal Court of Appeal in XL Digital Services Inc. v. S.C.E.P. (2011), 2011 FCA 179, 338 D.L.R. (4th) 758. In that case, XL Digital Services Inc. doing business as Dependable HomeTech (“XL”), applied for judicial review of a decision of the Canada Industrial Relations Board, in which it found that XL’s employees were employed in connection to the operation of a federal undertaking. The Court found that the work performed by XL’s employees was an essential part of Roger’s telecommunication and broadcasting business, which is a federal undertaking. The Court found that XL’s employees were highly integrated into the federal undertaking, as Rogers was XL’s only customer and XL’s employees worked solely on work for Rogers and Rogers controlled the allocation and scheduling of the employees’ work. The respondent submitted that the services it performs are identical to those performed by XL and therefore come within exclusive federal jurisdiction pursuant to the Court’s decision in XL Services Inc., supra. The respondent also relied upon the Tribunal’s decision in Stark v. Research in Motion, 2009 HRTO 1054, in which the Tribunal held that the relevant constitutional analysis is on the respondent’s operations as a whole and not on a particular product it has developed.

4The applicant submitted that the Tribunal’s jurisprudence indicates that the Tribunal will dismiss an application at the preliminary stage if it is “plain and obvious” that it does not fall within provincial jurisdiction. The applicant submitted that the respondent provided no evidence that the services provided by XL Digital Services are the same as those provided by the respondent. The applicant submitted, to the contrary, that XL Digital Services and the respondent are separate companies and provide different services to their clients. The applicant submitted that the respondent also provides computer, digital camera and PDA services, including support and repair, as well as home entertainment installation.

ANALYSIS AND DECISION

5In Guerrier v. Canadian Imperial Bank of Commerce, 2009 HRTO 124, the Tribunal described how the Tribunal and parties can address the preliminary issue of federal jurisdiction as follows, at paragraphs 10-12:

Applications may be dismissed for lack of jurisdiction because the respondent is federally regulated at different stages of the Tribunal process. Pursuant to the Tribunal’s Rule 13.2, where it appears to the Tribunal that an application is outside the jurisdiction of the Tribunal, the Tribunal shall, prior to sending the application to the respondent(s), issue a Notice of Intention Dismiss the Application. The Notice is sent only to the applicant who is invited to make submissions on the jurisdiction issue. At this early stage of the Tribunal’s process, the Tribunal will only dismiss the application if it is plain and obvious that the matter falls under federal jurisdiction and a decision to continue to deal with an application is not a final decision on the issue of jurisdiction: Morin v. Alliance de la function publique du Canada, 2008 HRTO 58, 2008 HRTO 58; Hotte v. Ontario (Finance), 2008 HRTO 63, 2008 HRTO 63.

At this early stage, the determination is made based only on the information provided by the applicant. If it is not plain and obvious that the respondent is federally regulated, the Tribunal will continue to process the application and send a copy to the respondent. The respondent may then raise the jurisdiction issue and the Tribunal may determine that it does not have jurisdiction to deal with the application.

In the present case, the Application was processed by the Tribunal and a copy was delivered to the respondents. The respondents have now raised the issue of the Tribunal’s jurisdiction. In these circumstances, the test is not whether it is plain and obvious that the respondents are federally regulated. Rather, the Tribunal must determine whether the respondents are or are not federally regulated.

6In this case, as in Guerrier, supra, the Tribunal processed the Application and delivered a copy to the respondent. Consequently, the test is not whether it is “plain and obvious” that the respondent is federally regulated, but whether the respondents are or are not federally regulated.

7The respondent has presented evidence, which, if accepted, indicates that the respondent is federally regulated. However, the applicant disputes this evidence and submitted that the facts regarding this Application are distinguishable from those found in XL Services Inc., supra. In these circumstances, the most fair, and expeditious procedure is for the Tribunal to hold an oral hearing in order to properly and fairly determine the jurisdictional question.

ORDER

8The Registrar will schedule a one-day preliminary hearing in person to receive viva voce evidence and argument from the parties regarding whether the issues in dispute in the Application are within exclusive federal jurisdiction. The respondent shall proceed first at the hearing.

9A Notice of Preliminary Hearing will follow from the Registrar’s Office. The parties shall deliver to each other and file with the Tribunal copies of any further documents or cases they intend to rely upon no later than 14 days prior to the hearing.