HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Kevin Law
Applicant
-and-
Organizational Solutions Inc.,Expertech Network Installation Inc., and Kathryn Sinden
Respondents
DECISION
Adjudicator: David Muir
Indexed as: Law v. Organizational Solutions Inc.
WRITTEN SUBMISSIONS
Kevin Law, Applicant
Michael Rubin, Counsel
Organizational Solutions Inc., Respondent
Carla Zabek, Counsel
Expertech, Respondent
Susan Crawford, Counsel
Introduction
1This Application was filed on June 3, 2009 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, alleging discrimination in the area of goods, services and facilities on the ground of disability.
2In his Application the applicant alleged that Organizational Solutions Inc. (“OSI”) and its employee, Kathryn Sinden, were responsible for denying disability benefits to the applicant when he was absent from work for a period of time in 2008 due to an alleged illness. OSI was retained by the applicant’s employer, Expertech, to manage its short term disability plan at the material times. In his Application the applicant identified Expertech and the Communications, Energy and Paperworkers Union of Canada (“the union”), the applicant’s bargaining agent, as ‘affected persons’ within the meaning of the Tribunal’s Rules of Procedure and both were accordingly given notice of the proceeding.
3In Interim Decision 2009 HRTO 1323, the Tribunal deferred the Application on the basis that there were four outstanding grievances relating to the allegations made in the Application. The Application was deferred pending the conclusion of the grievances. In Interim Decision 2009 HRTO 2285, the Tribunal denied the applicant’s request to reactivate the Application on the basis that there was no indication that his grievances had been concluded and confirmed that the Application should continue to be deferred.
4The applicant filed a Request for an Order During Proceedings (“Request”) on May 31, 2012 requesting that this Application be reactivated. The respondent OSI did not respond to the applicant’s requests and neither Expertech nor the union made any submissions on the Request. The Request to reactivate was granted in 2012 HRTO 1313 on the basis that it appeared that the applicant’s grievances were being held in abeyance pending the resolution of a jurisdictional question related to the arbitration of the applicant’s grievance and that it was unclear at that stage whether the applicant’s grievance would ever be heard.
5Subsequent to the decision to reactivate Expertech was added as a respondent by OSI. In its Response to the Application Expertech raised a number of issues as follows: (i) employment relations between Expertech and its employees are federally-regulated; (ii) the applicant previously filed an Application against Expertech based on the same facts with the Canadian Human Rights Commission (“CHRC”), which was dismissed; and (iii) a grievance dealing with the identical issues is proceeding and the first day of hearing was December 18, 2012.
6In a Case Assessment Direction issued on January 21, 2013 the Tribunal directed that the other parties provide submissions on the issues raised by Expertech. The Tribunal also directed the parties to address the question of whether or not OSI was providing advice to Expertech about matters that relate to federal employment and therefore outside of the Tribunal’s jurisdiction as well. Those submissions have been received.
7The Application is dismissed. I find for the reasons that follow that Expertech is engaged in a federal undertaking and the subject matter of this Application relates to a vital and essential part of that undertaking (i.e. its employee relations). Accordingly the Application as it relates to Expertech is not within the Tribunal’s jurisdiction. I also find that OSI was providing advice to Expertech about a matter that related to federal employment and therefore it is also outside of the Tribunal’s jurisdiction.
8It is not disputed that Expertech is a corporation incorporated pursuant to the laws of Canada and is engaged in the business of installing telecommunications networks nationally and internationally. It is also not disputed by the applicant that Expertech is registered with Labour Canada as a federally regulated employer. Expertech states that it is governed by the Canadian Human Rights Act. A complaint by the applicant raising the identical claims as in the Application was brought to the CHRC and finally determined by that body. Similarly this issue is currently before a labour arbitrator appointed under federal legislation.
9However the applicant argues Expertech is incorporated in Ontario and has offices here. It conducts business in Ontario. The applicant also states that he was employed and worked in Ontario. He also argues that the complaint he made to the CHRC as against Expertech was dismissed on the basis that OSI is provincially regulated.
10Decisions about constitutional jurisdiction are guided by whether the work of employees who would otherwise be subject to provincial jurisdiction is a vital, essential or integral part of a core federal undertaking. While not necessarily completely unrelated, this inquiry is distinct from the question of whether an employer is incorporated federally or provincially or whether all or some of its employees have been determined to be subject to either federal or provincial employment or labour legislation. In this regard, the test involves looking for practical or functional integration between the core federal undertaking and the employees in question. The judgment is a functional, practical one and does not turn on technical, legal niceties of the employment relationship. The onus is on the party who seeks to invoke an exception to provincial competence over labour relations: see McElrevy v. BC Corps of Commissionaires, 2004 BCHRT 160 at para. 10.
11The respondent Expertech is a corporation incorporated pursuant to the laws of Canada and is engaged in the business of installing telecommunications networks nationally and internationally. Expertech provides design, project management and installation capability for telecommunication networks worldwide. It is a subsidiary of Bell Canada. The applicant does not dispute these facts and does not question that the respondent Expertech is a federal work or undertaking. Accordingly I find that the respondent is a federal work or undertaking pursuant to section 92(10)(a) of the Constitution Act, 1867. The incident complained of relates to a benefit provided to the applicant pursuant to his contract of employment, the collective agreement between the union and Expertech. It is irrelevant to the analysis that the applicant works in Ontario or that the employer, Expertech, does business in the province. It seems likely that most if not all employers involved in federal works and undertakings have a physical presence and do business in one or more of the provinces. What is important is that the issues complained of relate to the applicant’s employment in a federal work or undertaking. Accordingly I find that the issues raised in this Application are not covered by the Code.
12As regards the role of OSI the material makes clear that its actions as related to this Application were to provide advice and recommendations to the applicant’s employer who was obligated pursuant to the collective agreement to provide the benefit in question. There was no employment relationship between OSI and the applicant. In such circumstances that Tribunal has concluded that the employer is liable for the actions or inactions of the third party. See MacDonald v. MaxSys Consulting, 2010 HRTO 584.
13As such the actions or inactions of both respondents related to an employment relationship within the jurisdiction of Canada and not Ontario.
14The applicant also argues that if the Application is dismissed as against Expertech on the basis that it falls outside of the Tribunal’s jurisdiction then no one would be able to bring a human rights complaint against Expertech who could simply avoid liability by contracting out its decision making to an organization whose employment relations were provincially regulated.
15I do not agree with the applicant’s concern. The liability of Expertech for the actions or inactions of OSI is a matter within federal jurisdiction. The CHRC investigated, considered, and dismissed the applicant’s complaint, based on three conclusions:
a. That the facts as alleged in the complaint would not constitute a discriminatory practice;
b. That the facts as alleged in the complaint are not linked to a prohibited ground; and
c. That the facts as alleged do not apply to a federally regulated respondent (an apparent reference to the fact that the decisions on entitlement were made by OSI, an organization whose employment relations are provincially regulated)
16I appreciate that one of the bases for the decision of the CHRC was that the decisions were in fact made by OSI, an entity whose employment relations are provincially regulated, but that was only one of the reasons for decision. Even if the applicant’s contention were accurate I am not bound by a decision of the CHRC and must make my own assessment of the Tribunal’s jurisdiction. In any case it is not accurate for the applicant to claim that it would be unjust to dismiss the Application as against Expertech on these grounds because this results in their actions being insulated from scrutiny.
17For all of these reasons the Application is dismissed.
18Having dismissed the Application on this basis there is no need to consider the abuse of process arguments.
Dated at Toronto, this 9th day of April, 2013.
”signed by”
David Muir
Vice-chair