HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Alexander Douglas
Applicant
-and-
Canada Cartage System Limited Partnership
Respondent
DECISION
Adjudicator: Dawn J. Kershaw
Indexed as: Douglas v. Canada Cartage System Limited Partnership
APPEARANCES
Alexander Douglas, Applicant
Self-represented
Canada Cartage System Limited Partnership, Respondent
Allyson Fischer, Counsel
Introduction
1This Decision addresses whether the subject matter of this Application falls under the Tribunal’s jurisdiction under the Human Rights Code, R.S.O. 1990 c. H. 19, as amended (the “Code”).
2The applicant filed this Application alleging the respondent discriminated against him contrary to the Code. The Response did not address the substantive issues but submitted the Tribunal lacked jurisdiction in this matter because the respondent is a federally-regulated, inter-provincial transportation company subject to federal, not provincial, jurisdiction.
3After the Tribunal received the parties’ submissions on jurisdiction, it directed a summary hearing by teleconference to allow the parties to make oral submissions. Both parties attended and made submissions.
factual background
4The respondent is the transportation division of a larger business that provides transportation and logistics services across Canada by transporting customer freight across both provincial and international boundaries. Customers outsource their logistics and transportation needs to the respondent, which includes using the respondent’s trucks.
5The respondent and its affiliated entities employ drivers. The respondent’s head office is in Mississauga, and there is a regional office in Winnipeg and truck terminals in several provinces.
6The applicant was employed with the respondent and worked on a contract only with the Liquor Control Board of Ontario (“LCBO”). The drivers employed in those positions did not cross international borders or provincial boundaries.
submissions
Respondent’s Submissions
7The respondent submits the sole issue is that its core business falls within federal jurisdiction, and it is irrelevant whether or not the applicant crossed boundaries or borders. What is important is the respondent’s business operation as a whole and not to simply examine or consider the contract on which the applicant worked.
8The respondent submits if the entity in which the applicant worked is “necessary” or “integral” to the respondent’s overall business, then this Application falls outside the Tribunal’s jurisdiction. See, e.g.: Reference re: Industrial Relations and Disputes Investigation Act (Canada), 1955 CanLII 1 (SCC), [1955] S.C.R. 529 and Tessier Ltee. v. Quebec (Commission de la santé et de la securite du travail, 2012 SCC 23 (para. 34).
9The respondent relies on paragraphs 48 and 49 of Tessier, in which the court stated:
[…] this Court has applied the derivative jurisdiction test for labour relations in two contexts. First, it has confirmed that federal labour regulation may be justified when the services provided to the federal undertaking form the exclusive or principal part of the related work’s activities.
Second, this Court has recognized that federal labour regulation may be justified when the services provided to the federal undertaking are performed by employees who form a functionally discrete unit that can be constitutionally characterized separately from the rest of the related operation.
10The respondent submitted these principles apply to employees who provide services to the respondent even if the employees themselves do not cross provincial or international boundaries. See e.g.: OK Transportation Ltd.., [2010] C.L.A.D. 194 (“OK”). In this case a mechanic who provided maintenance in Toronto for the respondent’s truck fleet was subject to federal jurisdiction even though he worked exclusively out of the maintenance division in Toronto and did not cross borders himself. On the respondent’s submission, if a mechanic is “swept into” federal jurisdiction then the applicant is too.
11The respondent further submitted that if jurisdiction was determined on a case by case or employee by employee basis, this would cripple the respondent’s operations and would be unworkable. The respondent gave the example of an individual who would be provincially regulated if he did not cross borders for several weeks, but then would be federally regulated when he did cross. The respondent submitted this case is analogous because if it was found that employees who crossed borders were federally regulated and those who did not were provincially regulated, it would create a very difficult situation. It would mean some employees would have some entitlements and obligations that others would not, which would be very onerous on the respondent
12The respondent countered the applicant’s argument that the respondent outsources to other trucking companies, stating the applicant misunderstood or misinterpreted its website because it is the customers who outsource to the respondent, not the other way around.
13The respondent submitted that while the applicant is correct that the respondent has short haul routes, it also has long haul routes. While some drivers do not cross provincial borders, approximately 800, or about 40%, of its drivers provide transportation across borders. In any event, in the respondent’s view, this does not have a bearing on whether the employees are provincially or federally regulated because the respondent’s core business is federal and all employees are swept in.
14The respondent has offices throughout Canada, with its regional office in Winnipeg and truck terminals in other provinces.
15The respondent further pointed out that other federal administrative adjudicators have assumed jurisdiction over disputes involving the respondent and its employees (see: Farkas v. Canada Cartage System Ltd., [2006] C.L.A.D. 180 (“Farkas”) and Szemerey v. Canada Cartage System Ltd., [2000] C.L.A.D. 590) (“Szemerey”), while various Ontario adjudicators, including this Tribunal, have declined jurisdiction over both the respondent’s employees (see: Rowland v. Canada Cartage Systems, 2009 HRTO 1941 (“Rowland”)) and other employees in similar businesses (see: Fisher v. Polymer Distribution, 2009 HRTO 146 (“Fisher”); Soler v. Luckhart Tranport, 2009 HRTO 1486 (“Soler”)) because they have found the disputes fall into federal jurisdiction.
Applicant’s Submissions
16The applicant advised the Tribunal he also filed an application with the Canadian Human Rights Commission (“CHRC”) to preserve his rights, and its progress is contingent on this decision.
17He did not question that the respondent is federally regulated, but questioned why it is. In his view, it should be up to the individual whether to pursue his or her rights through provincial or federal human rights legislation, and not all employees should be in one category. In the applicant’s view, if a company is federally regulated, the government should look into those companies and divide them, because in his view if one employee crosses a border, then the law is different than for those who do not.
18The applicant submitted it is unfair for all employees to only fall into one jurisdiction. When asked by the Tribunal if he agreed or disagreed with the respondent’s submission that all employees should fall into one jurisdiction, he replied that he somewhat agreed, but felt it was unfair given the number of employees that do not cross boundaries and borders that they all are subject to federal legislation. While this has its advantages and disadvantages, the applicant submits the employees should be able to choose.
19In the applicant’s written submissions, he submitted the respondent is separated into divisions, and these separate divisions do not run across borders. He further submitted that the Ministry of Transportation stated the federal government has authority only over extra-provincial truck and bus carriers that carry goods or passengers over borders. Because his contract was only with the LCBO, he did not run across borders.
Respondent’s Reply Submissions
20The respondent replied it was not trying to prevent the applicant from proceeding, but wants to ensure he proceeds in the correct forum. He still has the right to proceed through the CHRC.
21The respondent submitted it is fully entrenched in the Constitution Act, 1867 U.K., 30 & 31 Victoria, c. 3 (the “Constitution”) that transportation is federal and it cannot change that.
analysis and decision
22There is no dispute that transportation is federally regulated by virtue of section 91(10) of the Constitution, which lists as exclusively federal undertakings any interprovincial and international transportation and communication undertakings. As such, it must be determined whether the activity undertaken by the respondent is a federal undertaking and what the essential operational nature of the undertaking is, and whether it falls within the appropriate head of jurisdiction. The determination is concerned with the essential and ongoing aspects of an operation and not its exceptional aspects.
23Consistent with this analysis, the respondent submitted that the key factor is the respondent’s core business, which is federally regulated, which means all the employees are subject to federal regulation. In the Tessier case, Tessier argued that even though its business operated wholly within one province, the fact it engaged in activities that may be federally regulated rendered all of its employees subject to federal legislation. The Supreme Court of Canada, in rejecting that argument noted:
If Tessier itself was an inter-provincial transportation undertaking [like the respondent in this case], it would be justified in assuming that the percentage of its activities devoted to local versus extra-provincial transportation would not be relevant.
24I agree with the respondent that the fact that the respondent in this case engages in extra-provincial transportation is key, and that because of that, the applicant is governed by federal legislation and must pursue his rights under the Canadian Human Rights Code. The Supreme Court of Canada affirmed this view in Consolidated Fastfrate Inc. v. Western Canada Council of Teamsters, 2009 SCC 53, [2009] 3 S.C.R. 407 (“Fastfrate”) at para. 44:
[…] a requirement for federal jurisdiction over transportation undertakings is that the undertaking itself physically operates or facilitates carriage across interprovincial boundaries.
25According to the respondent, 40% of its drivers regularly cross boundaries and borders, a submission uncontradicted by the applicant. Crossing boundaries is not an infrequent event for the respondent’s employees. Whereas the Supreme Court of Canada held in Fastfrate that “[d]istinct local works or undertakings may remain subject to provincial jurisdiction”, there was no evidence in the instant case to show that the workers who work on the LCBO contract or others employed by the respondent who do exclusively intra-provincial work, form a functionally discrete unit that can be severed from the larger operation.
26My finding also is consistent with the findings in the case of OK where a mechanic who never crossed provincial boundaries was found to be governed by federal legislation because the business was federally regulated. It also is consistent with the findings in the cases of Fisher, Soler and Rowland in which the employees at both the respondent and another trucking company, respectively, were found to be subject to federal legislation.
order
27For all these reasons, this Application is dismissed.
Dated at Toronto, this 26th day of January, 2015.
“Signed by”
Dawn J. Kershaw
Vice-chair