Maria Herrera v. J & T Murphy Limited o/a Murphy Bus Lines, 2014 HRTO 461

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Maria Herrera

Applicant

-and-

J & T Murphy Limited o/a Murphy Bus Lines

Respondent

DECISION

Adjudicator: Jay Sengupta

Date: April 2, 2014

Citation: 2014 HRTO 461

Indexed as: Herrera v. J & T Murphy Limited

WRITTEN SUBMISSIONS

Maria Herrera, Applicant ) Chris Surowiak, Representative

J & T Murphy Limited o/a Murphy Bus Lines, )

Respondent ) Harold Sahadeo, Representative

1This is an Application filed under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The purpose of this Decision is to address the Tribunal’s jurisdiction to hear this Application.

2The Application arises out of the applicant’s employment with the respondent. The applicant was employed by the respondent as a bus driver.

3On June 4, 2013, the respondent filed a Response and requested that the Application be dismissed because it takes the position that it is a federal undertaking. In support of this contention the respondent provided a letter dated August 20, 2007 from Labour Canada in which the Labour Canada investigator reports her conclusion that the respondent is “subject to federal jurisdiction for the purposes of labour legislation”. The basis for this conclusion appears to be that the respondent “is engaged in interprovincial road transportation”.

4On June 17, 2013, the applicant filed her objection to the dismissal of the Application. Her submissions indicate that she held a position as a bus driver with the respondent. In that job, she picked up and transported passengers within Ontario. There was no inter-provincial aspect to the work she did for the company.

5A Case Assessment Direction was issued directing the respondent to provide an evidentiary basis for its claim that it is a federal undertaking stating:

Decisions 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.

6The Tribunal also provided a time frame for the applicant to respond to the materials filed by the respondent.

7The respondent filed its materials within the time frame provided, arguing that cross border and inter provincial transportation are regular and continuous functions of the respondent’s business. The respondent also provided documents to support its assertion that it is a federally regulated private sector employer subject to the Legislated Employment Equity Program (LEEP) that is required to file reports on employment equity with Labour Canada and whose resports are audited by the Canadian Human Rights Commission (CHRC).

8A further Case Assessment Direction was issued when the Tribunal received no response from the applicant. The applicant was directed to respond within 7 days failing which the Application could be dismissed as abandoned.

9The applicant filed a submission indicating that the respondent was not named on a list of federally regulated companies maintained by the Canadian Human Rights Commission as it had argued.

10The respondent then filed a rebuttal submission and provided a copy of the listing in question.

11The Code only applies to matters that fall within provincial, rather than federal jurisdiction. Pursuant to subsection 92(10)(a) of the Constitution Act, 1867, (U.K.), 30 & 31 Victoria, c. 3, transportation works and undertakings that extend beyond the limits of the province are within federal jurisdiction.

12Based on the submissions made, I find that the respondent has satisfied me that it is a federally- regulated business. As the Code only applies to matters within provincial jurisdiction, I find that the Tribunal has no jurisdiction to hear the Application.

13The Application is dismissed.