Sauve v. Iron Range Bus Lines, 2013 HRTO 461

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Dale Sauve

Applicant

-and-

Iron Range Bus Lines

Respondent

INTERIM DECISION

Adjudicator: Judith Keene

Date: March 19, 2013

Citation: 2013 HRTO 461

Indexed as: Sauve v. Iron Range Bus Lines

APPEARANCES

Dale Sauve, Applicant

Self-represented

Iron Range Bus Lines, Respondent

Eric Lehto, Representative

Introduction

1This is decision in respect of 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. The material filed indicates that the employment in question was driving an Ontario school bus.

2The respondents filed a full Response. The respondent takes the position that the Application does not fall within provincial jurisdiction. With the Response, the respondent filed a letter dated June 5, 2006 from a Health and Safety Officer/Inspector employed with Human Resources and Skills Development Canada. The letter indicates that the respondent “is subject to federal jurisdiction for the purposes of labour legislation” because” it provides charter bus services operating between Ontario and the United States/Manitoba”.

3A Notice of Intent to Dismiss ("NOID") was issued on January 29, 2013, advising the applicant that the respondent had asked the Tribunal to dismiss the Application on the basis that the issues in dispute are within exclusive federal jurisdiction. The applicant was given an opportunity to respond to the Notice in writing, and he did so. Among other submissions, he indicated that he had consulted the Ontario Ministry of Labour and the federal Human Rights Commission and that it was his understanding that the respondent's operations fall under the mandate of both the federal and provincial governments.

4Pursuant to subsection 92(10)(a) of the Constitution Act, 1867, (U.K.), 30 & 31 Victoria, c. 3 (the "Constitution"), transportation works and undertakings that extend beyond the limits of the province are within federal jurisdiction. However, The Supreme Court of Canada has held that it is the "reality of the situation" and not the "commercial costume" worn by the entity involved that determines the question of constitutional jurisdiction. See Alberta Government Telephones v. Canadian Radio-television and Telecommunications Commission, 1989 CanLII 78 (SCC), [1989] 2 S.C.R. 225, and the Tribunal's decision in Soler v. Luckhart Transport, 2009 HRTO 1486 [CHRR Doc. 09-2000] at para. 9.

5Recent decisions of the Supreme Court have established a more restrictive approach to interjurisdictional immunity than has sometimes been applied in the past, requiring that the provincial legislation impair the core competence of the federal legislation for the doctrine to apply. As noted by the Tribunal in Pierre Louis v. Ottawa Police Services Board, 2010 HRTO 863 at para 8:

When the “pith and substance” of a law relates to matters within the jurisdiction of the legislature that enacted it, it may nevertheless be inapplicable based on one of two doctrines, interjurisdictional immunity or federal paramountcy. Paramountcy applies where a provincial law is in conflict with or incompatible with federal law. In such cases, the federal law prevails. The doctrine of interjurisdictional immunity provides that in certain circumstances, a law with a pith and substance within the jurisdiction of the legislature that enacted it may not impair, even incidentally, certain matters within the jurisdiction of the other. In Canadian Western Bank [v. Alberta, 2007 SCC 22], at paras. 33-68, the Court engaged in a lengthy discussion of interjurisdictional immunity, and held that it is a doctrine of “limited application” (para. 33) which must be applied with “restraint” (para. 67). It is because of interjurisdictional immunity that the Code does not apply to employment in federal works and undertakings, which are part of the “core” of the undertaking: see Bell Canada v. Quebec (Commission de la santé et de la sécurité du travail), 1988 CanLII 81 (SCC), [1988] 1 S.C.R. 749.

6The onus is on the party who seeks an exception to the Tribunal’s jurisdiction to establish an exception; see Ferreira v. KMS Van Lines Inc., 2013 HRTO 182; MacDonald v. MaxSys Consulting, 2010 HRTO 584; McElrevy v. BC Corps of Commissionaires, 2004 BCHRT 160; and Nicholson v. Bombardier Transportation Canada Inc., 2012 HRTO 2062. In this case, I am not satisfied that the respondent has established exclusive federal jurisdiction.

ORDER

7The Application will continue. The parties will be given an opportunity to decide whether they wish to attempt a mediated settlement.

8I am not seized.