Daniel Aklilu v. Wirecomm Systems (2008) Inc., 2014 HRTO 577

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Daniel Aklilu

Applicant

-and-

Wirecomm Systems (2008) Inc.

Respondent

-and-

Unifor

Intervenor

DECISION

Adjudicator: Jo-Anne Pickel

Date: April 24, 2014

Citation: 2014 HRTO 577

Indexed as: Aklilu v. Wirecomm Systems (2008) Inc.

APPEARANCES

Daniel Aklilu, Applicant

Sisay Assefa, Representative

Wirecomm Systems (2008) Inc., Respondent

Jodi Gallagher Healey, Counsel

Introduction

1This Decision addresses the issue of whether the Application falls within 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 alleging discrimination in employment by his employer, Wirecomm Systems (2008) Inc. (“Wirecomm”). In its Response, Wirecomm requested that the Tribunal dismiss the Application on the basis that the subject matter falls within federal jurisdiction.

3By Interim Decision, 2013 HRTO 1729, the Tribunal directed that a preliminary hearing be scheduled to address this issue. The Tribunal held a preliminary hearing by teleconference on March 27, 2014.

4For the reasons that follow, the Application is dismissed as it is outside the Tribunal’s jurisdiction.

Factual Background

5At the beginning of the preliminary hearing, I confirmed with the parties that there was no dispute regarding the following facts that were set out in the materials filed with the Tribunal.

6Wirecomm is engaged under a fixed term service agreement to provide installation, service and related services for Rogers Cable Communications Inc. (“Rogers”). Wirecomm provides these services to Rogers exclusively in Ontario. All of Wirecomm’s revenues are generated by work for Rogers.

7The services that Wirecomm provides to Rogers include:

a. installing internet, phone, cable and related equipment;

b. connecting cable telephone and/or internet equipment to Rogers’ network;

c. troubleshooting and performing service calls for Rogers customers who have difficulties with their internet, phone and/or cable equipment and/or services;

d. adding or removing cable channels that are available to a customer based on a change in their subscribed services; and

e. selling Rogers services or equipment to customers on a commission basis.

8The applicant was employed by Wirecomm as a field technician. All of Wirecomms’ technicians carry out work for Rogers. Wirecomm’s field technicians, including the applicant, are represented Unifor (formerly the Communications, Energy and Paperworkers Union of Canada). The applicant’s terms and conditions of employment are covered by a collective agreement negotiated by Wirecomm and Interfor under a bargaining certificate issued by the Canada Industrial Relations Board (“CIRB”) under the Canada Labour Code. Among other things, the non-discrimination clause in the collective agreement refers to the Canadian Human Rights Act and the arbitration procedure in the collective agreement refers to the Canada Labour Code.

Parties’ Submissions

9The respondent submitted that, based on the facts set out above, it is clear that its operations fall under federal jurisdiction. It submitted that the issue before the Tribunal is well-settled in the caselaw. In particular, the respondent relied upon a case involving a company, XL Digital Services Inc., which performed the same services that Wirecomm provides to Rogers. In a decision upheld by the Federal Court of Appeal, the CIRB held that XL Digital’s operations fall within federal jurisdiction: Communications, Energy and Paperworkers Union of Canada v. XL Digital Services Inc., 2010 CIRB 543 aff’d 2011 FCA 179 (“XL Digital”). The respondent also relied upon other cases where tribunals have held that companies providing similar services to telecommunications companies fall under federal jurisdiction. See, for example, Swift v. Bell Technical Solutions Inc., 2013 HRTO 210 and Phasecom Systems Inc., 2005 CanLII 30089 (OLRB). Finally, the respondent relied upon the fact that its technicians, including the applicant, are certified federally under the Canada Labour Code as further proof that its operations fall under federal jurisdiction.

10The applicant relied upon the following factors to submit that the subject matter of this Application falls under provincial jurisdiction.

a. the undisputed fact that Wirecomm operates in Ontario only;

b. the undisputed fact that Wirecomm is not a part of Rogers but instead operates under a fixed term service agreement with Rogers; and

c. the undisputed fact that Wirecomm has not provided any proof that it is incorporated under federal legislation.

11Although the applicant initially agreed to the facts set out in paras. 6-8 above, the applicant submitted that it was necessary for the respondent to provide additional information in order for the Tribunal to determine whether the Application falls under federal jurisdiction. In particular, the applicant submitted that it was necessary that the respondent provide a certificate of incorporation as well as a written acknowledgement from Rogers confirming that Wirecomm’s activities are integral to Rogers. He also submitted that it was necessary for the respondent to produce further documentation regarding its activities and its revenue sources in order to determine the jurisdictional question in this case.

12As a final point, the applicant submitted that the federal certification of his bargaining unit was irrelevant. He argued that the certification applies to labour relations matters only and not to human rights issues.

Findings

13For the reasons that follow, I find that the subject matter of the Application falls under federal jurisdiction.

14It is established in the caselaw that telecommunications undertakings fall under federal jurisdiction. See Alberta Government Telephones v. Canadian Radio-television and Telecommunications Commission, [1989] 2. S.C.R. 225.

15Due to the doctrine of interjurisdictional immunity, provincial statutes such as the Code do not apply to a federal undertaking where the application of such laws would impair a vital or essential part of the core of the federal undertaking. See Canadian Western Bank v. Alberta, 2007 SCC 22. Labour and employment relations, as well as human rights relating to labour and employment relations, fall within this core: Bell Canada v. Quebec (Commission de la santé et de la sécurité du travail), [1988] 1 S.C.R. 74 and Pierre Louis v. Ottawa Police Services Board, 2010 HRTO 8639 at para. 8.

16Federal 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. See Tessier Ltée v. Quebec (Commission de la santé et de la sécurité du travail), 2012 SCC 23 (“Tessier”).

17It is clear from decisions such as Tessier and many others, that it is not necessary for Wirecomm to form a part of Rogers in order for its operations to fall within federal jurisdiction. It is also clear from the caselaw that even companies incorporated under provincial law can be subject to federal human rights or labour laws, depending on the nature of their business. The Supreme Court of Canada has stated that it is the “reality of the situation” and not the “commercial costume worn” by the entities involved that determines the question of constitutional jurisdiction: Alberta Government Telephones v. Canadian Radio-television and Telecommunications Commission, 1989 CanLII 78 (SCC), [1989] 2 S.C.R. 225. Therefore, I do not agree with the applicant that it is necessary for the respondent to produce a certificate of incorporation or a letter from Rogers in order to prove that it falls under federal jurisdiction.

18The key is whether the services provided by Wirecomm are integral to Rogers’ telecommunications undertaking. In many cases, establishing such an integral relationship will require a complete factual record. However, in my view, the facts set out in the parties’ written submissions in this case are sufficient to find that Wirecomm’s operations fall within federal jurisdiction. The applicant did not dispute the description of the services provided by Wirecomm in the respondent’s Response and summarized at para. 7 above. The applicant did not claim to have carried out any functions other than those set out at para. 7. These services are substantially the same as the services provided by XL Digital to Rogers which are described in the CIRB’s decision in XL Digital. The applicant did not provide any information to dispute the respondent’s assertion that the services it provides under its service agreement to Rogers do not differ to any material extent from the services that XL Digital provided under its own service agreement to Rogers.

19Although the respondent did not advance evidence to support its assertion that 100% of its revenues are generated through its service agreement with Rogers, I was provided with no information that would provide any reason to dispute this assertion. The assertion was confirmed by the respondent’s counsel at the hearing. The applicant did not claim that he or any technicians performed work for any companies other than Rogers. Indeed, the applicant accepted the respondent’s assertion that all of his work and the work of other technicians was carried out under a service agreement with Rogers.

20In XL Digital, the CIRB reviewed the cable installation and servicing of cable wiring services provided by XL Digital for Rogers. These are the same services described in para. 7 above and not disputed by the applicant. The CIRB found that there was a significant level of involvement by XL Digital in Rogers’ operations as its technicians performed work in the premises of Rogers’ customers and from Rogers’ distribution tap to customer’s residences.

21The Board concluded as follows:

84 In the Board’s view, without any reception of broadcasting or telecommunications signal at a customer’s premise, Rogers would not be providing a complete broadcasting and telecommunications service. XL Digital allows Rogers’ customers to have access to its cable and internet services and ensures the effective delivery of broadcasting and telecommunications services as a “going concern.”

85 All of the above facts indicate that XL Digital’s operations are a vital, essential, and integral part of Rogers’ federal undertaking. The Board finds that the operations carried out by XL Digital in London fall under federal jurisdiction. Consequently, the Board has jurisdiction to entertain the application for certification under section 24 of the [Canada Labour] Code.

22On judicial review, the Federal Court of Appeal held that the CIRB’s decision was correct.

23Of course, the Tribunal is not bound by either the CIRB’s decision or the Federal Court of Appeal’s decision in the XL Digital case. However, the reasoning set out by the CIRB and the Federal Court of Appeal is convincing and I adopt it.

24For the reasons set out above, this Application falls outside the jurisdiction of the Tribunal. The applicant’s human rights claim must be made to the Canadian Human Rights Commission.