Dodson v. OPDI Logistics and Ontario Potato Dist. (Alliston) Inc. 1991, 2014 HRTO 1042

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Lance Dodson

Applicant

-and-

OPDI Logistics and Ontario Potato Dist. (Alliston) Inc. 1991, David Coomber, Robert Gill and Kim Morgan

Respondents

DECISION

Adjudicator: Jo-Anne Pickel

Date: July 16, 2014

Citation: 2014 HRTO 1042

Indexed as: Dodson v. OPDI Logistics and Ontario Potato Dist. (Alliston) Inc. 1991

APPEARANCES

Lance Dodson, Applicant

Osborne Barnwell, Counsel

OPDI Logistics and Ontario Potato Dist. (Alliston) Inc. 1991, David Coomber, Robert Gill and Kim Morgan, Respondents

Reagan Ruslim, Counsel

1This Decision addresses whether the subject matter of this Application falls under the Tribunal’s jurisdiction under the Human Rights Code, R.S.O. 1990 c. H. 19, as amended (the “Code”).

2The applicant filed an Application in which he alleged that his former employer discriminated against him contrary to the Code. The respondents filed a Request for Order During Proceedings (“RFOP”) requesting that the Tribunal dismiss the Application on the basis that the corporate respondent (“OPDI”) is a federally-regulated inter-provincial transportation undertaking. A preliminary hearing was held to address this issue and both parties had the opportunity to make submissions.

3The issue in this case is whether the work being performed by the applicant formed part of the interprovincial transportation undertaking operated by OPDI. As noted below, this involves close attention to the work performed by the applicant and other offloaders/lumpers to determine the degree of to which this work is an integral part of the OPDI’s inter-provincial transportation undertaking.

Factual Background

4There was no significant dispute between the parties as to the relevant factual background to the applicant’s employment with the respondent. The applicant was employed as an off-loader/lumper for OPDI. OPDI is a company that does a variety of things. In its RFOP, the respondents stated that the OPDI has four divisions: logistics, farming, packing and lumping. At the hearing, the respondents stated that the company has two main divisions: a logistics division and a potato division. It appears from images from OPDI’s website admitted at the hearing, that OPDI used to be composed of two separate companies, one relating to logistics and one relating to its potato-related business. It appears that these two companies were merged into one corporate structure. It was not disputed that OPDI operates the activities of both divisions in a centralized way. For example, the same executive team oversees the operations of both divisions and there is one human resources department that services both divisions.

5OPDI’s logistics division operates a fleet of trucks that transport products to and from various locations including other provinces and a variety of locations in the United States. Loblaws is a significant client of OPDI’s logistics services.

6OPDI’s potato division is engaged in farming, packing, storing and distributing potatoes. This includes growing potatoes on one or more farms located in and around Alliston, Ontario.

7OPDI employs offloaders/lumpers who form part of the logistics division. They work in two facilities including one in Cambridge Ontario where the applicant worked. The Cambridge facility (also referred to at the hearing as the Maple Grove facility) is owned by Loblaws Inc. A variety of trucks transport products to the Cambridge facility. These include both trucks owned by OPDI and trucks owned by other companies who, for the most part, also transport goods inter-provincially and internationally. Some local producers also transport their products to the Cambridge facility but they themselves offload their own products. Offloaders/lumpers perform work solely in relation to products that are transported by trucks other than those operated by local producers.

8The exact work performed by the offloaders/lumpers depends on the type of truck in question. There are two types of trucks that arrive at the Cambridge facility: tractor trailer trucks and trucks with shipping containers.

9When a tractor trailer truck arrives at the Cambridge facility, a Loblaws employee operating a forklift lifts the skids of products off the truck and places them on the floor in the staging area. Once the products are placed in the staging area, offloaders/lumpers break down the skids and re-portion the products into smaller bundles. Once they have done this, their job is done. Loblaws employees then take over and move the skids of products as required.

10When a truck with a shipping container arrives at the Cambridge facility, offloaders/lumpers climb onto the truck in order to physically unload the shipping container. No Loblaws employees are involved in the offloading since it is not possible to unload products from shipping containers with a forklift.

11OPDI’s operations have been considered to fall under the Canada Labour Code by different officers of federal government departments. The respondents entered into evidence three letters from different officers who treated OPDI as being federally-regulated. However, the jurisdictional issue has never been adjudicated.

Submissions

12The parties agree that transportation works and undertakings that extend beyond the limits of the province fall within federal jurisdiction. The parties also agree that labour relations, and human rights relating to labour matters, presumptively fall under provincial jurisdiction.

13Where the parties differ is on the issue of whether OPDI carries out work that falls within both federal and provincial jurisdiction. The respondents take the position that OPDI’s operations are a single and indivisible federal undertaking. They submit that the existence of the interprovincial and international transportation portion of its operations in effect sweeps all of its operations under federal jurisdiction. The respondents sought to rely upon the determinations of federal government officials that its employment relations fall under the Canada Labour Code. They also sought to rely upon the fact that OPDI has governed itself as an entity which falls under federal jurisdiction. For example, OPDI has established an occupational health and safety policy and a workplace violence and harassment policy that both reference the Canada Labour Code. OPDI has also conducted health and safety training which references Part II of the Canada Labour Code. The respondents pointed to the fact that the applicant had attended this health and safety training, seemingly to submit that he was aware that OPDI’s operations fall within federal jurisdiction.

14The respondents also sought to rely upon a series of, mostly Canada Industrial Relations Board, cases involving interprovincial transportation undertakings. Some of the cases involve companies that carry out both intra-provincial and inter-provincial transportation. For example, Day & Ross Nfld. Ltd., [1999] CIRB No. 4. Other cases involve companies that provide primarily intra-provincial transportation but, due to the fact that they also provide regularly scheduled inter-provincial transportation, they have been found to fall within federal jurisdiction. For example, Ottawa-Carleton Regional Transit Commission and Amalgamated Transit Union, Local 279 (1983), 1983 CanLII 1936 (ON CA), 44 O.R. (2d) 560 (C.A.). Finally, the respondents sought to rely upon cases where persons performing work related to, or in support of, inter-provincial transportation were found to fall within federal jurisdiction. For example, Servichem Inc. (1991), 16 C.L.R.B.R. (2d) 48 (CLRB). It is this final type of case that most closely mirrors this case.

15The applicant submitted that OPDI’s inter-provincial transportation operations should be severed from the rest of its operations for the purposes of the constitutional analysis. The applicant’s counsel submitted that the work that the applicant performed was separate from, and not integral or functionally related to, OPDI’s inter-provincial/international transportation operations. The applicant sought to rely upon caselaw in which courts have severed one part of a company’s operations and treated it separately for constitutional purposes. The courts have generally followed such an approach where a company carries out separate and distinct activities that are not integrally-related. See for example Actton Transport Ltd. v. British Columbia (Director of Employment Standards), 2010 BCCA 272 (“Actton Transport”).

findings

16In this decision, I do not need to decide whether all of OPDI’s operations, including the operations in its potato division, fall within federal jurisdiction over interprovincial/international transportation. The question before me in this case is narrower. It is whether human rights issues relating to the applicant’s employment relationship with OPDI as an offloader/lumper fall within federal jurisdiction. For the reasons set out below, I find that they do.

17As noted above, there was no dispute in this case that labour relations and human rights relating to labour relations are presumed to fall under provincial jurisdiction. There was also no dispute that OPDI operates an interprovincial/international transportation undertaking. The key dispute in this case was whether the offloaders/lumpers are an integral part of OPDI’s interprovincial/international transportation undertaking.

18At the outset, I note that the fact that an employer considers itself to fall within federal or provincial jurisdiction is irrelevant to a determination of constitutional jurisdiction. An employer cannot choose its jurisdiction by referencing one jurisdiction or the other in its policies or training. As well, the issue of whether the applicant was aware that the employer considers itself to fall within federal or provincial jurisdiction is also immaterial to a constitutional division of powers analysis. Finally, the fact that federal government officials consider OPDI as falling within federal jurisdiction is not determinative as the issue has never been fully adjudicated. My determination in this case is based on the evidence provided in the preliminary hearing.

19Federal jurisdiction over labour relations may be established in two ways: (1) directly, when the employment relates to a work, undertaking or enterprise within the legislative authority of Parliament; or (2) when the work performed by an entity is an integral part of a federally-regulated undertaking. This last scenario is sometimes referred to as derivative jurisdiction. In either case, the determination as to which level of government has jurisdiction is made by assessing the work’s essential operational nature. See Tessier Ltée v. Quebec (Commission de la santé et de la sécurité du travail), 2012 SCC 23 at paras. 17-18 (“Tessier”).

20If the applicant’s work were not related in any way to an interprovincial transportation undertaking, it would fall within provincial jurisdiction. However, by virtue of its relationship to the respondent’s interprovincial/international transportation operations, the applicant’s work essentially functions as part of this undertaking and loses its distinct character. Whether this case is analyzed as one of direct jurisdiction or derivative jurisdiction, I find that the work of offloaders/lumpers fall within federal jurisdiction.

21I agree with the applicant that a company may engage in more than one undertaking for constitutional purposes. In such a case, a company may be subject to dual legislative authority because it has multiple operations. As stated by Professor Peter Hogg in Constitutional Law in Canada (looseleaf edition) at para. 22.4:

The fact that various business operations are carried on by a single proprietor does not foreclose inquiry as to whether or not those operations consist of more than one undertaking for constitutional purposes. It is the degree to which the operations are integrated in a functional or business sense that will determine whether they constitute one undertaking or not.

22As McLachlin J. (as she then was) put it in her dissent in Westcoast Energy Inc. v. Canada (National Energy Board), 1998 CanLII 813 (SCC), [1998] 1 S.C.R. 322, quoted with approval by the Supreme Court in Tessier, above at para. 55:

The local work or undertaking must, by virtue of its relationship to the interprovincial work or undertaking, essentially function as part of the interprovincial entity and lose its distinct character. … If the dominant character of the local work or undertaking, viewed functionally, is something distinct from interprovincial transportation or communication, it remains under provincial jurisdiction.

23Even if I were to accept that the work of offloaders/lumpers amounts to a separate undertaking, applying the derivative approach set out in Tessier, I find that it is an integral part of the respondent’s interprovincial/international transportation operations.

24I find that the work performed by the offloaders/lumpers is an integral part of OPDI’s interprovincial/international transportation undertaking so as to essentially function as part of that undertaking. I understand that, from the applicant’s perspective, he was only responsible for offloading and lumping products and that he was not responsible with operating the trucks that crossed the provincial border. However, in my view, his work was integral and functionally-related with OPDI’s interprovincial/international transportation operations to find that it falls within federal jurisdiction.

25I have closely considered the relationship from the perspective both of OPDI’s interprovincial/international transportation operations and of the work performed by offloaders/lumpers. I note at the outset that OPDI’s operations are carried out under a single highly integrated management structure. An additional factor that indicates a high degree of connection between the work of offloaders/lumpers and OPDI’s interprovincial/international transportation operations is the fact that both fall within the same division of the company.

26Beyond this managerial integration, I find that the work of offloaders/lumpers is functionally connected to OPDI’s interprovincial/international transportation operation in such an integral way that it loses its distinct provincial character and moves into the federal sphere. I have taken into consideration the fact that offloaders/lumpers do not actually board tractor trailer trucks but only trucks with shipping containers. Notwithstanding this fact, I find that the work of offloaders/lumpers is essential to the effective performance of OPDI’s interprovincial/international transportation undertaking as, without them, OPDI would not be able to complete the shipment of goods to fulfill their contracts with clients such as Loblaws. OPDI’s interprovincial/international transportation operations are also essential to the work of offloaders/lumpers as they provide the shipments of products that are offloaded and lumped by the offloaders/lumpers. Viewed from either perspective, the work of offloaders/lumpers and OPDI’s interprovincial/international transportation operations are essential to each other.

27I find the cases submitted by the applicant in which a court has severed a portion of a business for constitutional purposes to be distinguishable. These cases involve work that is much less integrally-related than is the case here. For example, the employer in Actton Transport supplied labour and services to a related company that operated a garbage operation solely within British Columbia. It also operated an interprovincial/international trucking business. The British Columbia Supreme Court and Court of Appeal severed the company’s garbage operations for the purposes of the constitutional analysis. It found that supplying labour and services to the local garbage business was not vital or essential to the company’s interprovincial/international trucking operations and therefore fell within provincial jurisdiction.

28The facts before me are considerably different from those in Actton Transport. As described above, the degree of functional integration is much greater in this case. As well, the evidence indicates that the work of offloaders/lumpers and the interprovincial/international transportation undertaking are essential to the effective performance of the other.

29The applicant included the Supreme Court of Canada’s decision in Consolidated Fasfrate Inc. v. Western Canada Council of Teamsters, 2009 SCC 53, [2009] 3 S.C.R. 407 (“Consolidated Fastfrate”) in his book of authorities. However he did not address the decision in his submissions at the hearing. As with the Actton Transport case, I find the facts of the Consolidated Fastfrate case are significantly different from the facts in this case. Fasfrate was a freight forwarding company that has branches across Canada. Each branch collected freight from customers in a province of origin and also de-consolidated shipments arriving from other provinces. Significantly, Fastfrate did not itself carry goods over provincial boundaries. It provided only local services and contracted with other companies to ship goods over provincial boundaries. The majority of the Supreme Court held that Fastfrate was a local undertaking subject to provincial jurisdiction: see Consolidated Fastfrate at para. 80. Although the Court did not specifically distinguish between direct and derivative jurisdiction, the Court’s comments at paras. 72-80 of the decision make clear that Fastfrate did not qualify for either direct or derivative jurisdiction because it was not actually involved in transporting goods across provincial boundaries but instead contracted with a third party carrier that was not dependent on the work done by Fastfrate.

30In this case, OPDI’s employees clearly do transport goods interprovincially. Even though the applicant does not himself transport these goods across provincial boundaries, I have found that his work is an integral part of OPDI’s interprovincial/international transportation operations such as to place the subject matter of this Application under federal jurisdiction.

order

31For the reasons set out above, the Application is dismissed as falling outside the Tribunal’s jurisdiction.