McPhail v. First Canada ULC, 2014 HRTO 995

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Cynthia McPhail

Applicant

-and-

First Canada ULC and David Freeman

Respondents

DECISION

Adjudicator: Dawn J. Kershaw

Date: July 8, 2014

Citation: 2014 HRTO 995

Indexed as: McPhail v. First Canada ULC

WRITTEN SUBMISSIONS

Cynthia McPhail, Applicant

Self-represented

First Canada ULC and David Freeman, Respondents

Mathias Link, Counsel

Introduction

1This Application alleges reprisal, and discrimination with respect to employment because of family status contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The respondents request that the Application be dismissed because the issues in dispute are within exclusive federal jurisdiction and therefore the Tribunal does not have jurisdiction to deal with this Application.

3The Tribunal advised the applicant of the respondents’ request and asked that she provide any submissions on the issue by no later than June 25, 2014. She provided submissions, but they do not address the jurisdictional issue.

Is the Application outside the Tribunal’s Jurisdiction?

4The Code only applies to matters that fall within provincial, rather than federal, jurisdiction. The Canadian Human Rights Commission has power to deal with human rights matters that fall under federal jurisdiction.

5The respondents provided information about the nature of the corporate respondent’s business operations. The corporate respondent is incorporated under the laws of Alberta and provides scheduled and chartered bus transportation to educational institutions and the public throughout Canada. The corporate respondent’s head office is located in Burlington, Ontario.

6The corporate respondent provides regular and continuous cross-border transportation services within the provinces of Canada, between the provinces, and between Canada and the United States. In 2009, the corporate respondent purchased the operations of Laidlaw Transit Ltd. Laidlaw Transit Ltd. operated in approximately 40 locations throughout Canada, including numerous locations within the province of Ontario. The Ontario Labour Relations Board had found Laidlaw Transit to be federally- regulated in two decisions: Laidlaw Transit Ltd., 2004 CanLII 47417, and Laidlaw Transit Ltd., 2004 CanLII 49800.

7"Works and Undertakings connecting the Province with any other or others of the Provinces, or extending beyond the Limits of the Province" are matters within federal jurisdiction pursuant to section 92(10)(a) of the Constitution Act ,1867, U.K., 30 & 31 Victoria, c. 3.

8The applicant worked as a bus driver at the corporate respondent’s Haliburton, Ontario branch. The personal respondent is the Location Manager of that branch.

9The Haliburton branch provides school bus services to district school boards, including the Trillium Lakelands District School Board and Kawartha Pine Ridge District School Board, and runs regular charter bus services between the province of Ontario and other provinces as well as into the United States.

10The Tribunal has held that the corporate respondent is a federal undertaking. See Durrani v. First Student Canada, 2010 HRTO 1406, Wint v. First Canada ULC, 2011 HRTO 1524, and Brighton v. First Canada ULC, 2013 HRTO 1156.

11I am satisfied the corporate and the personal respondents come within exclusive federal jurisdiction and therefore the Application is outside the Tribunal’s jurisdiction.

order

12The Application is dismissed.