HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Shane Meyers
Applicant
-and-
Global Freezer Services Inc.
Respondent
DECISION
Adjudicator: Paul Aterman
Indexed as: Meyers v. Global Freezer Services Inc.
WRITTEN SUBMISSIONS
Shane Meyers, Applicant
Trevor Pellerine, Counsel
Global Freezer Services Inc., Respondent
Lisa Kwasek, Counsel
Introduction
1This Decision explains why the Tribunal is dismissing this Application for lack of jurisdiction.
2The Application alleges discrimination with respect to employment because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").
3The respondent operates a warehouse near the Windsor/Detroit border. It provides services to common carriers that are importing meat from and exporting meat to the United States. The services include loading and unloading, storing, packaging and labelling of the food. They also include facilitating the inspection of food by inspectors employed by the Canada Food Inspection Agency ("CFIA"), the federal regulatory body that determines what food can enter and leave Canada.
4The applicant worked for the respondent from August of 2013 until the termination of his employment on March 25, 2014. He labelled boxes, and loaded and unloaded them. He alleges his disability arising from a motor vehicle accident unrelated to his work was a factor in the termination, and thus was discriminatory. The respondent has not yet addressed the substance of these allegations because it requests dismissal of the Application, arguing that its operation is a federal undertaking. Federal undertakings fall outside the jurisdiction of this Tribunal.
5In determining this request, the Tribunal must decide whether the respondent's operations relate to matters that go to the vital or essential part of a federal undertaking or the core of a federal area of jurisdiction, making the Code inapplicable by virtue of the constitutional doctrine of interjurisdictional immunity.
6For the reasons that follow I determine that the respondent is a federal undertaking. Its operations are integral to both the operations of international common carriers and the CFIA. Because the common carriers and the CFIA are federal undertakings, the respondent is a federal undertaking by virtue of the concept of derivative jurisdiction.
factual background
7An affidavit from the Facility Manager of the respondent describes the essential elements of the respondent's operations. The relevant facts, which are not contested, are the following:
The only work performed by the respondent relates to the import from and export to the United States of food. At the time of the events in this Application 20% of its business involved importation of meat from the United States and 80% involved the export of meat to the United States. The proportions of importation and exportation have since become roughly equal;
In order to handle meat for both the purposes of importation and exportation, the respondent must register with the CFIA and its facilities must comply with CFIA standards that are established by federal regulation. Unless the respondent is accredited by the CFIA, the CFIA will not inspect meat in the respondent's facility.
Meat that is imported from the United States is first inspected on the United States side. Once in Canada, the shipment is brought to the respondent's facility by common carrier. It cannot proceed to its destination in Canada without first being inspected by the CFIA. This inspection occurs in the respondent's facility;
In order for the inspection to occur, the respondent contacts the CFIA inspection control centre. The control centre determines what will be inspected and communicates this back to the respondent.
The respondent's employees then have to unload the shipment. They make those boxes that have been identified for inspection available to the CFIA inspector;
Where an inspector determines that the shipment has passed inspection, the inspector completes the necessary paperwork while the respondent's employees load the shipment on to the common carrier for onward transportation;
Meat that is exported to the United States follows a similar procedure, in that it must be inspected on the Canadian side before crossing the border. The common carrier stops at the respondent's facility. The respondent's employees unload the shipment and label all boxes to identify what is being shipped and to record the fact that the respondent is the export facility. The food is stored to await inspection.
The respondent contacts the CFIA control centre and the centre sends an inspector to review the shipment. All shipments from the respondent's facility are exported to the same facility in Detroit by the same common carrier. When a shipment leaves the respondent's facility it is sealed with the respondent's seal to confirm that it has not been tampered with post-inspection.
The proper labelling of boxes and the sealing of shipments are services the respondent offers to its clients in order to demonstrate compliance with the cross-border inspection regime. Improper labelling can cause products to be turned back at the border.
positions of the parties
8The respondent argues that its operations constitute an import and export facility and that this brings it directly within federal jurisdiction. As an alternative to that argument it submits that the services it provides are so integral to the operations of international common carriers and the CFIA that it should be treated as a federal undertaking by virtue of the concept of derivative jurisdiction.
9The respondent argues that it is not involved in warehousing in the traditional sense of providing freight consolidation and deconsolidation services that allow for the movement of goods, whether intraprovincially, interprovincially or internationally. Rather, it maintains that the sole purpose of its operation is to facilitate compliance with the food inspection regimes that govern the movement of food across the Canada-United States border. Its warehousing and storage functions serve that purpose. The respondent contends that these facts support either a finding that it falls directly within federal jurisdiction, or that it is federal by virtue of derivative jurisdiction.
10The applicant argues that the respondent is not directly within federal jurisdiction because it does nothing to actually transport goods across provincial or international borders, the common carriers do that. It also does not conduct the actual inspection of food under the federal government's regime, the CFIA do that.
11In relation to derivative jurisdiction it maintains that the respondent simply provides space to CFIA and non-specialised labour in loading and unloading trucks and labelling shipments. The services it provides are not an exclusive or principal part of the federal undertakings, in this case the cross-border transportation of meat or the inspection of meat. The applicant maintains that the respondent could easily convert its operations into those of a regular warehouse and that other companies in the area provide the same service.
analysis
12The constitutional heads of power that are at issue here are ss. 91(2) and 92(10)(a) of the Constitution Act, 1867, 30 & 31 Victoria, c.3 (U.K.).
13The regulation of the importation and exportation of goods falls under federal jurisdiction by virtue of the second (or general) branch of the trade and commerce power in s.91(2) (see: Quebec (Attorney General) v. Canada (National Energy Board), 1994 CanLII 113 (SCC), [1994] 1 S.C.R. 159 at 192 and the test set out by the Supreme Court of Canada in General Motors of Canada Ltd. v. City National Leasing, 1989 CanLII 133 (SCC), [1989] 1 S.C.R. 641).
14The transportation of goods across provincial boundaries is within federal jurisdiction as an exception under s. 92(10) (a) to the broader rule that local works and undertakings are provincial matters.
15Labour relations – and, by implication, human rights issues arising in the employment context – are presumptively within provincial jurisdiction (see: Tessier Ltée v. Quebec (Commission de la santé et de la sécurité du travail), 2012 SCC 23, ("Tessier")).
16Tessier goes on to explain (at para. 17) that the presumption in favour of provincial jurisdiction can be ousted and federal jurisdiction established in two ways: directly or through derivative jurisdiction. The distinction is explained as follows (para.18):
In the case of direct federal labour jurisdiction, we assess whether the work, business or undertaking's essential operational nature brings it within a federal head of power. In the case of derivative jurisdiction, we assess whether that essential operational nature renders the work integral to a federal undertaking. In either case, we determine which level of government has labour relations authority by assessing the work's essential operational nature.
Direct federal jurisdiction
No direct jurisdiction under s.91(2)
17Regarding s. 91(2), this subsection gives the federal government exclusive jurisdiction over "The Regulation of Trade and Commerce". To establish that the respondent is engaged in the regulation of trade and commerce, it must show that the essential operational nature of its business is the regulation of importation and exportation.
18In my view the regulatory functions governing the import and export of goods are activities that are performed by the CFIA and not the respondent. It is not the respondent that determines which boxes may or may not enter or leave Canada. The CFIA inspector decides that. Each time that decision is made by an inspector, the regulatory regime is put into practice. The activities of the respondent - in providing a facility where the inspection occurs and in readying the materials for inspection - are ancillary to that exercise of regulatory power. They are not an exercise of the power itself. For this reason I conclude that the respondent has not established direct federal jurisdiction under s.91(2).
No direct jurisdiction under s.92(10)(a)
19Since the Supreme Court of Canada's decision in Consolidated Fastfrate Inc. v. Western Canada Council of Teamsters, 2009 SCC 53 ("Consolidated Fastfrate") it is clear that establishing direct jurisdiction in the shipping context depends on showing that the activity in question involves crossing a provincial boundary. In Consolidated Fastfrate direct jurisdiction could not be established because the activity in question - consolidation and deconsolidation of freight for ground transportation – took place entirely within the province. Similarly, in Tessier the court found that direct jurisdiction cannot be established in relation to stevedoring because that activity – the loading and unloading of ships – takes place entirely within the province.
20In this case the activities of the respondent in relation to shipping – the loading and unloading of shipments, warehousing for a short time, and the labelling of shipments – all occur intraprovincially because they all take place in the respondent's warehouse near Windsor. Applying the principle in Consolidated Fastfrate, direct federal jurisdiction is not established in relation to s.92(10)(a).
Derivative federal jurisdiction
21To show that it falls derivatively within federal jurisdiction the respondent must demonstrate that its essential operational nature makes it integral to a federal undertaking, in this case either the international common carriers that are its clients, or the CFIA, or both.
Derivative jurisdiction under s.91(2)
22In relation to the work of the CFIA, it is clear that the respondent provides a physical facility in which the CFIA's work is carried out. However, it does more than this. Its activities are aimed at creating the conditions in which the CFIA carries out its inspections. This is achieved by unloading goods for inspection, liaising with the CFIA control centre, labelling goods so that they accurately reflect the results of the inspection process and then sealing shipments to protect the integrity of the inspection decisions.
23The respondent's operation is integral to the work of the CFIA in that the CFIA cannot carry out its mandate if it cannot gain ready access to the goods that are brought in on trucks. The respondent enables this to occur by unloading and shipments and making available to inspectors the boxes targeted for inspection. Similarly, the labelling and sealing of shipments by the respondent is a necessary adjunct to the inspection done by the CFIA because the integrity of an inspector's work would be undermined if no one could subsequently determine which boxes have been approved for import or export and on what basis, because of defective or incomplete labelling.
24Moreover, this is not a sideline business of the respondent. Unlike cases such as Tessier, where the court had to look at the proportions of the company's activities that were clearly within provincial jurisdiction and those arguably in federal jurisdiction to determine whether its activity was essentially provincial or federal, here this is all that the respondent does. It does not engage in regular warehousing or freight consolidation. All of its activity is related to the compliance with importation and exportation regulations that is a necessary precondition to the transborder shipment of food. All of its employees do this work.
25The CFIA is a federal undertaking. I find that the respondent's essential operational nature is integral to the work of the CFIA in the regulation of trade and commerce, and this brings the respondent's operation within the federal constitutional sphere by virtue of derivative jurisdiction.
Derivative jurisdiction under s.92(10)(a)
26In relation to the common carriers, it is not disputed that the goods carried by the carriers from Canada must first stop at the respondent's facility before they can move on to the United States. Similarly, before the trucks coming from the United States can proceed any further within Canada they have to stop at the respondent's facility. All of the activity that then takes place within the facility is related to ensuring compliance with the respective regulatory regimes that the governments of Canada and the United States have established for the cross-border movement of food.
27In this sense the respondent's operation is integral to the activity of international common carriers. Without first stopping at the respondent's facility to comply with CFIA requirements, the trucks simply cannot cross the border into the United States. Similarly, without first stopping at the respondent's facility, trucks coming from the United States cannot proceed further into Canada.
28Again, as I note in relation to the claim of derivative jurisdiction under s.91(2), this is not a sideline business of the respondent. All of its activity enables international common carriers to comply with importation and exportation regulations, so that they can in turn move their goods across the border. All of its employees do this work.
29The applicant's argument that the respondent could convert its operation to a regular warehousing operation is irrelevant. The Tribunal needs to assess constitutional jurisdiction based on what actually occurs on the facts before it, not what might occur in some other, hypothetical scenario. The fact – cited by the applicant - that the respondent is one of a number of similar operations near the border is also irrelevant, as this fact says nothing about the essential nature of what this particular respondent does.
30Common carriers that transport goods across provincial (and by implication international) boundaries are federal undertakings. I conclude that the respondent's essential operational nature is integral to the undertaking of international common carriers, and this brings the respondent's operation within the federal constitutional sphere by virtue of derivative jurisdiction in relation to s.92(10)(a).
31I accept the respondent's argument that derivative jurisdiction brings its operations within federal constitutional authority, both with respect to the work of the CFIA and that of international common carriers. As a result the Tribunal has no jurisdiction over this Application.
order
32The Application is dismissed.
Dated at Toronto, this 3rd day of December, 2014.
"signed by"
Paul Aterman
Vice-chair