Surinder Singh Pama v. G4S Secure Solutions (Canada) Ltd., 2014 HRTO 190

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Surinder Singh Pama

Applicant

-and-

G4S Secure Solutions (Canada) Ltd., and United Food and Commercial Workers International Union, CLC, AFL-CIO Local 333

Respondents

DECISION

Adjudicator: Douglas Sanderson

Date: February 11, 2014

Citation: 2014 HRTO 190

Indexed as: Pama v. G4S Secure Solutions (Canada) Ltd.

APPEARANCES

Surinder Singh Pama, Applicant

Davinder Taank, Representative

1This is 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 race, colour, ancestry, place of origin, ethnic origin, creed, record of offences and reprisal.

Background

2The applicant was employed by the respondent G4S Secure Solutions (Canada) Ltd. (the “respondent employer”) and was represented by the respondent United Food and Commercial Workers International Union, CLC, AFL-CIO Local 333 (the “respondent union”), which was certified under the Canada Labour Code, R.S.C., 1985, c. L-2, Part I.

3The applicant worked as a Security Officer at the Toronto Immigration Holding Centre, administered by the Canada Border Services Agency between December 17, 2010 and January 22, 2013, when the respondent employer terminated his employment. The applicant alleges that he was subjected to racist harassment and bullying by a supervisor and that the respondent employer terminated his employment because of actions he took to mitigate and health and safety risk. The applicant alleges that the respondent union failed to take his grievance challenging his dismissal to arbitration.

4The Tribunal sent the applicant a Notice of Intent to Dismiss, dated January 8, 2014. The Tribunal noted that the Application appears to be outside of the Tribunal’s jurisdiction because:

• the respondent appears to be a federal government department, agency or a federally regulated employer or service provider. See for example Voss v. Garda Canada Security Corporation, 2013 HRTO 188; and

• a review of the Application and the narrative setting out the incidents of alleged discrimination fails to identify any specific acts of discrimination within the meaning of the Code allegedly committed by the respondent union, see for example, Traversy v. Mississauga Professional Firefighters’ Association, 2009 HRTO 996.

The Tribunal directed the applicant to provide written submissions responding to these issues, on or before February 7, 2014.

The applicant’s submissions

5The applicant filed written submissions on February 6, 2014. Unfortunately, these submissions do not address the issues the Tribunal identified in the NOID. Instead, the applicant argued that the respondent union’s failure to refer the applicant’s grievance to labour arbitration amounts to a violation of its duty of fair representation under section 37 of the Canada Labour Code. The Tribunal, of course, has no jurisdiction to enforce the Canada Labour Code and the Canada Industrial Relations Board (“CIRB”) has already ruled that the respondent union did not breach its duty of fair representation towards the applicant. See 2013 CIRB LD 3103. In any event, the applicant made no submissions to the effect that the respondent union’s decision not to refer his grievance to arbitration was linked to any of the prohibited grounds of discrimination that he identified in the Application.

Analysis and Decision

6As noted, the applicant was represented by a union certified under the Canada Labour Code, which suggests that the applicant’s work was federally regulated and therefore outside the Tribunal’s jurisdiction. More importantly, the Federal Court of Appeal’s Decision in Syndicat des agents de sécurité Garda, Section CPI-CSN v. Garda Canada Security Corporation, 2011 FCA 302, 2011 FCA 302 (“Garda”) found that the labour relations of the security guards who at immigration detention centres falls within federal jurisdiction. The Court reasoned that security services at the centres constitute a vital, essential, or integral part of the operations of the centre. The Court reviewed with approval several decision of the CIRB that held that the employment of airport perimeter guards falls within federal jurisdiction and made a direct analogy between guards at airports and guards at immigration detention centres, as follows, at paragraphs 65-71.

In Securiguard Services Limited, [2005] CIRB 342, the Board certified a union under the Canada Labour Code to represent a group of employees providing perimeter security at the Vancouver International Airport.

The Vancouver International Airport Authority does not hire its own employees to enforce the security aspects of the federal regulations which apply to it, but contracts out this responsibility to private specialized service providers through a competitive tender process. One of the aspects of airport security is perimeter security. Perimeter security refers to the control of restricted areas that are not accessible by the general public. This security service is provided by Securiguard’s employees and includes the control and monitoring of restricted area passes; surveillance camera operation; escort security for VIPs; and the checking or monitoring of access and entry of airport employees, airline crews and employees of service providers, as well as vehicle entry onto airport grounds, ramps and runways.

In Securiguard Services Limited, the Board noted that these security services were required pursuant to the Aeronautics Act, R.S.C., 1985, c. A-2, and were therefore different from those services provided for by Securiguard to its other clients. These services could therefore be reasonably severed. Given that these activities were essential for ensuring airport security, they fell under federal jurisdiction:

[28] Securiguard employees are permanently assigned to provide services to the airport and are trained specifically for these duties. Securiguard employees enforce on behalf of a federal undertaking, security measures developed in compliance with schedules to the Aeronautics Act, which is federal legislation. Securiguard employees must obtain valid restricted area passes issued by Transport Canada that are exclusive to the airport to be able to work there. Moreover, certification under the provincial Private Investigators Act and the Security Agencies Act (R.S.B.C., 1996, c. 374) is a general competence requirement of all persons who work as security guards within the province, but does not determine whether employees are governed by provincial labour legislation. As well, the services provided by Securiguard under contract to the Vancouver International Airport are separate from its contracts for services at other employers.

[34] In light of these answers, the Board is of the view that Securiguard’s services at the airport are sufficiently connected to the operations of the Airport Authority to be severable from more routine security contracts. There is no evidence that the cleaning staff, booksellers, shopsellers, food vendors and other service providers must similarly comply with the Aeronautics Act or that their operations are essential to the airport’s operation.

[35] Consequently, the Board views the work of Securiguard’s employees at Airport Authority as unique compared to the services it provides to other clients who operate under federal jurisdiction and distinct from its other contracts. The level and quality of work of Securiguard’s employees is totally dependent on the standards set by the airport, and the standards of service that apply at the Vancouver International Airport.

The Board reached a similar decision with respect to the security guards of the Canadian Corps of Commissionaires providing similar services at the Halifax Airport: Public Service Alliance of Canada v. Nova Scotia Division of Canadian Corps of Commissionaires, CIRB Letter Decision 1647.

Likewise, in A.S.P. Incorporated, [2006] CIRB 368, the Board recognized its certification jurisdiction with regard to security guards working for a security agency under contract with various clients and providing security services at the Toronto-Pearson Airport, including under a contract with SkyService for monitoring the doors to a hangar; a contract with TBI for customer service personnel at Toronto Terminal 3; ad hoc contracts with Aecon Construction and Torbear Construction for security services for the construction of Terminal 3; and various contracts with the Airport Authority for lost and found items at the airport, security at various airside locations at the airport and the monitoring of the Airport Authority building.

In that case (at paragraph 45), “it [was] clear to the Board that the employees of ASP [the sub-contractor] perform[ed] duties essential to airport security and that, in accordance with its obligations under the Aeronautics Act, the GTAA [Greater Toronto Airport Authority] could not operate without security services being in place.”

The analogy between airport perimeter services and the services provided by the security guards at the Immigration Prevention Centre is clear. In this case, the security guards perform tasks that are essential to the effective detention of foreign nationals held under a federal statute, the Immigration and Refugee Protection Act. These tasks are carried out in accordance with federal policies and directives. The CBSA could not effectively operate the Montréal area Immigration Prevention Centre without the services of the approximately 125 security guards provided by Garda.

7The Decision in Garda confirms that the type of work the applicant performed falls within federal jurisdiction. The Tribunal has previously adopted the reasoning in Garda (See Voss v. Garda Canada Security Corporation, 2013 HRTO 188) and I see no reason to deviate from it in this matter. Consequently, I find that this Application falls outside the jurisdiction of the Tribunal. Any claim must be made to the Canadian Human Rights Commission.