McLennon v. Toronto Port Authority, 2013 HRTO 507

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Desmond McLennon Applicant

-and-

Toronto Port Authority and Antonella Tarantino Respondents

INTERIM DECISION

Adjudicator: Judith Keene Date: March 26, 2013 Citation: 2013 HRTO 507 Indexed as: McLennon v. Toronto Port Authority

APPEARANCES

Desmond McLennon, Applicant Self-represented

Toronto Port Authority, Antonella Tarantino, Respondents Gerald J. Griffiths, Counsel

Introduction

1This is an Interim 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 goods, services and facilities because of age, disability, color, race, ancestry, creed, ethnic origin, place of origin, marital status and family status. The applicant also alleges that he was discriminated against because of association with a person identified by a ground of discrimination and also alleges reprisal.

2The respondents filed a Request for Dismissal Without Full Response. The respondent takes the position that the Application does not fall within provincial jurisdiction.

3As noted in the reasons set out below, the facts as alleged in the Application are important to questions of jurisdiction. The Application involves the use of washrooms located in the Passenger Transfer Facility ("the Facility") of the Billy Bishop Toronto City Airport ("BBTCA"). The airport terminal and runways are located on an island. The Transfer Facility is a building located close to the channel that separates the island from the mainland. It is used as a ferry terminal for those passengers who choose to obtain access to the airport by ferry. The Application alleges, and the respondent has not denied, that taxi drivers who drop and pick up passengers at the Facility were allowed by the respondent to use the washrooms at the Facility until July 17, 2012. Filed with the Application is a document entitled "Operations Bulletin" apparently authored by the personal respondent and dated July 17, 2012. The document states in part:

A number of bulletins have been issued to the taxi driver community…asking that drivers show respect for the washroom facilities or they would no longer be made available. Unfortunately a member of the taxi driver community refused to comply with our request so effective immediately NO TAXI DRIVERS ARE PERMITTED INTO THE PASSENGER TRANSFER FACILITY.

4The applicant is a taxi driver. He asserts that the directive from the respondents denies taxi drivers access to an indoor washroom. The applicant intends to bring evidence that the group of taxi drivers thus disadvantaged is disproportionately composed of persons whose colour is one of the personal characteristics protected by the Code.

5The respondent states that it is a federally created body; one of 18 Port authorities created or continued through the Canada Marine Act 1998, SC c. 10. The respondent owns and operates the BBTCA. The Passenger Transfer Facility is a building located next to the channel between the Toronto Islands and the mainland. The Facility is a ferry terminal for the ferry by which most passengers gain access to the airport.

6In this case, the applicant has filed a complaint with the Canadian Human Rights Commission, and it is appropriate to obtain further information about the progress of that complaint so that the Tribunal may consider whether to defer to that process.

7More detailed evidence and argument is required in order to determine the jurisdictional issue. If the Tribunal does not defer to the process at the Canadian Human Rights Commission, or if that process does not resolve the substance of the Application, a preliminary hearing shall be held to determine the jurisdictional issue.

ANALYSIS

8The respondents state that the Application chiefly engages the aeronautics aspect of the corporate respondent's activities, or in the alternative falls within its port and harbor operations. The respondent cites section 91 of the Constitution Act, 1867, (U.K.) 30 & 31 Victoria, c. 3 ("the Constitution Act"), which provides that "navigation and shipping" are subject to federal jurisdiction.

9The respondents cite two decisions of the Supreme Court of Canada. The first, Quebec (Attorney General) v. Canadian Owners and Pilots Association, 2010 SCC 39, dealt with the validity of an order by the Commission de protection du territoire agricole du Québec that agricultural land used by the respondents in that case to build an aerodrome be returned to its natural state. The majority of the Supreme Court panel agreed that interjurisdictional immunity precluded the Commission from ordering the dismantling of the aerodrome. The second, British Columbia (Atty. Gen.) v. Lafarge Canada Inc. 2007 SCC 23, [2007] S.C.J. No. 23, holds that the Vancouver Port Authority, another port established by the Canada Marine Act, is a federal undertaking subject to federal jurisdiction.

10The respondents also rely on an Ontario Court of Appeal decision which held that the federal power over ports applies to the Hamilton Harbor Commission (Hamilton Harbor Commissioners v. City of Hamilton (1978) 1978 CanLII 1511 (ON CA), 21 O.R. (2d) 459), and the decision of the Ontario High Court of Justice which held that the predecessor entity to the respondent was a federal undertaking (Castle v. Toronto Harbor Commissioners, [1987] O.J. No. 2357. The respondents submit that the extent of Parliament's jurisdiction over airport activities and operations is broad, citing Mississauga (City) v. Greater Toronto Airport Authority 2000 CanLII 16948 (ON CA), [2000] O.J. No. 4086. In that case the question addressed by the Court of Appeal was whether Parliament's exclusive legislative authority over aeronautics or federal undertakings or over federal Crown property precluded the City of Mississauga from regulating the construction of new buildings at Lester B. Pearson International Airport.

11The respondents are of course correct that section 91 of the Constitution Act, 1867, explicitly provides that "navigation and shipping" are subject to federal jurisdiction, and that the operation of airports has also been found to be a matter of federal jurisdiction (see for example Quebec (Attorney General) v. Canadian Owners and Pilots Association, above). The question here is whether access to washrooms in a building owned by a federally-regulated entity and associated with federally-regulated undertakings can also be within the jurisdiction of this Tribunal under the Code.

12Recent 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.

13In Quebec (Attorney General) v. Canadian Owners and Pilots Association, above, the Supreme Court of Canada held that interjurisdictional immunity applied and that the provincial zoning law did not apply to an aerodrome. The test was set out and discussed at paras.43 to 45 as follows:

After a period of inconsistency, it is now settled that the test is whether the provincial law impairs the federal exercise of the core competence: Canadian Western Bank, per Binnie and LeBel JJ. This decision resolved a debate about whether the provincial law must "sterilize" the essential content of a federal power (the language used in Dick v. The Queen, 1985 CanLII 80 (SCC), [1985] 2 S.C.R. 309, at pp. 323-24), or whether it is sufficient that the provincial law "affect" a vital part of the management and operation of the undertaking (Commission du Salaire minimum v. Bell Telephone Co. of Canada, 1966 CanLII 1 (SCC), [1966] S.C.R. 767, at p. 774; Bell Canada, at pp. 859-60). See also Irwin Toy Ltd. v. Quebec (Attorney General), 1989 CanLII 87 (SCC), [1989] 1 S.C.R. 927, at p. 955, per Dickson C.J., Lamer 3. (as he then was) and Wilson J.

The impairment test established in Canadian Western Bank marks a midpoint between sterilization and mere effects. The move away from the "affects" test of Bell Canada reflects growing resistance to the broad application of interjurisdictional immunity based on modern conceptions of cooperative federalism and a perceived need to promote efficacy over formalism. As Binnie and LeBel JJ. put it in Canadian Western Bank, "[t]he Constitution, though a legal document, serves as a framework for life and for political action within a federal state, in which the courts have rightly observed the importance of co‑operation among government actors to ensure that federalism operates flexibly" (para. 42). (See also Dickson C.J. in OPSEU, at p. 18.) To quote Binnie and LeBel JJ. in Canadian Western Bank:

A broad application [of interjurisdictional immunity] . . . appears inconsistent, as stated, with the flexible federalism that the constitutional doctrines of pith and substance, double aspect and federal paramountcy are designed to promote. . . . It is these doctrines that have proved to be most consistent with contemporary views of Canadian federalism, which recognize that overlapping powers are unavoidable. [para. 42]

"Impairment" is a higher standard than "affects". It suggests an impact that not only affects the core federal power, but does so in a way that seriously or significantly trammels the federal power. In an era of cooperative, flexible federalism, application of the doctrine of interjurisdictional immunity requires a significant or serious intrusion on the exercise of the federal power. It need not paralyze it, but it must be serious.

14In Domingo v. Garda Canada Security Corp., 2012 HRTO 1394, the Tribunal dealt with a request for early dismissal of an Application alleging discrimination in employment by an individual who worked in security services at an airport. The Tribunal found that there was insufficient information at that point to determine the question of jurisdiction, commenting on the nature of the inquiry at paras 5-7:

I 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).

The 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).

Based 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.

15Having said the above, the applicant in this case has filed a complaint about the subject-matter of this Application with the Canadian Human Rights Commission, and it is appropriate to obtain further information about the progress of that complaint so that the Tribunal may consider whether to defer to that process.

ORDER

16The applicant is ordered to send written information to the Tribunal that indicates the progress to date of his complaint to the Canadian Human Rights Commission, including whether a hearing date has been set. The applicant must send this information within fifteen days of the date of this Interim Decision.

17The respondent is ordered to submit a full Response within 30 days of the date of this Interim Decision. The respondent may also file submissions concerning whether deferral is appropriate.

18If the Tribunal does not defer to the process at the Canadian Human Rights Commission, or if that process does not resolve the substance of the Application, a preliminary hearing shall be held to determine the jurisdictional issue.

19I am not seized.