Peltier v. 1243564 Ontario Limited o/a Total Scrap Management, 2015 HRTO 585

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mitchell Peltier Applicant

-and-

1243564 Ontario Limited o/a Total Scrap Management and Henry Riva Respondents

DECISION

Adjudicator: Mary Truemner Date: May 6, 2015 Citation: 2015 HRTO 585 Indexed as: Peltier v. 1243564 Ontario Limited o/a Total Scrap Management

APPEARANCES

Mitchell Peltier, Applicant Shawn Weston, Paralegal

1243564 Ontario Limited o/a Total Scrap Management, Respondent Suzanne M. Porter, Counsel

Henry Riva, Respondent Crista Rea, Counsel

Introduction

1This Application was filed April 3, 2013. It alleges discrimination with respect to employment because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The applicant was employed by the corporate respondent from November 2007 until his employment was terminated in December 2012.

2The Tribunal processed the Application, received pleadings from the parties, and scheduled a hearing for November 12, 2014, but, prior to the hearing, the respondents filed a preliminary request for the Tribunal to dismiss the Application on the grounds that the Tribunal has no jurisdiction over what they claim is a federal undertaking. The parties filed submissions, and the first day of the hearing was converted into a preliminary hearing by way of teleconference to address the respondents' request. On that date and a subsequently scheduled date, the parties led evidence to establish whether or not the corporate respondent ("TSM") operated an international (cross-border) transportation undertaking, and, if so, whether the work being performed by the applicant formed a part of it.

3On the basis of the evidence, and the parties' written submissions filed before and after the preliminary hearing, I have decided that the Tribunal has no jurisdiction over the Application because TSM, for which the applicant and personal respondent worked, is a federally-regulated undertaking. My reasons are below.

Facts

Chanté Pathak

4TSM's officer manager, Chanté Pathak, swore an affidavit and also testified. Her father is the director of the corporate respondent. She handles and is responsible for the day to day operations for TSM. I find that her testimony was credible. She was able to provide details substantiating her answers to questions, and the applicant's evidence did not contradict hers with respect to facts related to TSM's business in the United States and the applicant's employment duties. I accept her testimony in its entirety.

5Ms. Pathak testified that TSM operates a recycling facility and related logistics business (the sale, transportation and delivery of scrap metal to customers who are primarily in the United States). She explained that 85% of its revenue is generated from transporting the metal to customers in the United States who pay TSM for it.

6TSM collects and sorts scrap metal in its Windsor yard. She testified that the applicant's job was there. He received material from TSM trucks returning from Ontario customers' sites, and also from local customers in Ontario who themselves would bring their metal to TSM's yard and receive money from the applicant. The applicant would then sort it, torch or cut the material into smaller pieces, and package it, leaving it in the yard until a truck arrived, at which point he would load it with a forklift onto the truck which would then bring the metal to the purchasers.

7She testified that the trucks TSM usually uses, and used while the applicant worked with TSM, are owned by a company called International Express ("IE"), a related company that did not charge TSM for the use of its trucks. She testified that TSM would sometimes need to "outsource", in cases such as IE truck break-downs, and use a company called "JNN" to deliver the scrap from TSM's yard to customers in the United States. TSM has to pay for those trucks, so tries to avoid using trucks other than IE trucks. She also said that IE trucks are only used by TSM; no other company uses them.

8She testified that TSM employs the drivers of the IE trucks that transport scrap to the United States, and that TSM's drivers need drug and alcohol testing annually to drive there. She testified that TSM pays for the insurance, gas and repairs for the IE trucks used to transport TSM's metal to its customers in the United States.

9She testified that its customers in the United States pay TSM for the scrap. She testified that TSM handles the customs paperwork, bills of lading and all other documents related to the delivery of scrap material to customers in the United States.

10Ms. Pathak testified that TSM normally employs two drivers, but presently, there is only one. She testified that they are presently operating with only seven employees, the lowest they can go, but they have operated with as many as fifteen employees.

James Tingen

11James Tingen was the only witness called by the applicant. The applicant did not testify. Mr. Tingen was one of the drivers employed by TSM for one year, from February 2012 until February 2013. He was therefore employed by TSM at the time that the applicant's employment was terminated.

12Mr. Tingen testified that the trucks used were marked "IE". He testified that the other TSM driver was only licensed to drive smaller trucks, so that the other driver focused on picking up scrap metal around Windsor and Essex County, and only seldom delivered across the border. Mr. Tingen could not be sure how frequently because he did not keep track of the other driver's deliveries to the United States, and I find that I cannot rely on Mr. Tingen's recollection to determine how often the other driver delivered to the United States.

13Mr. Tingen testified in chief that he drove trucks, loaded or to be loaded, around Windsor and Essex County, Ontario, but only "occasionally" drove trucks loaded with scrap metal into the United States. Mr. Tingen testified that there was another trucking company that TSM used to haul material to Ohio in the United States. He later clarified that he drove to the United States "at least two days per week" but the other three days he was driving around Windsor and Essex County. In cross-examination, Mr. Tingen admitted that, on the days he drove to the United States, he might cross the border more than once in one day. It became apparent that he would be aided by the trucking logs kept by the company, and I allowed the parties an adjournment so that they could be produced.

14On the next day of the preliminary hearing, Mr. Tingen did not appear, but the applicant's representative confirmed that Mr. Tingen's travel log filed by TSM was authentic and accurate, all 291 pages. I made the log an exhibit under s.15(1)(b) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22. The applicant's representative took no position with respect to TSM's counsel's observation from the log that, of the 164 days that Mr. Tingen worked, he travelled to the United States 145 days. I find therefore that the log is more reliable that Mr. Tingen with respect to how often he drove to the United States, and I find that he drove there the vast majority of days that he worked.

Analysis

15The transportation of goods across provincial boundaries is within federal jurisdiction as an exception to the broader rule that local works and undertakings are provincial matters. See s.92(10)(a) of the Constitution Act, 1867, 30 & 31 Victoria, c.3 (U.K.). An undertaking's activity outside the province need not be the largest part of its overall activity for it to be within federal jurisdiction. As long as the activity outside the province is regular and continuous, the entire undertaking will be classified as coming under federal jurisdiction. See A.T.U., Local 279 v. Ottawa-Carleton Regional Transit Commission (1983), 1983 CanLII 1936 (ON CA), 44 O.R. (2d) 560 (Ont. C.A.).

16Labour relations, and, by implication, human rights issues arising in the employment context, are presumptively within provincial jurisdiction (see: See Tessier Ltée v. Quebec (Commission de la santé et de la sécurité du travail), 2012 SCC 23, ("Tessier")). However, as summarized in Dobson v. OPDI Logistics and Ontario potato Dist. (Alliston) Inc. 1991, 2014 HRTO 1042 ("Dobson"), at para. 19:

Federal 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. In either case, the determination as to which level of government has jurisdiction is made by assessing the work's essential operational nature. [Tessier, at paras. 17-18].

17While the applicant submits that the Ministry of Labour issued Orders as a result of a visit to the applicant's worksite in 2013, and that TSM never appealed those orders, I agree with the respondents that the jurisdictional issue, without having been actually adjudicated upon, must still be determined by this Tribunal. (See Dobson, supra).

18The applicant submits that the fact that TSM did not own the trucks used to transport TSM goods to the United States must lead to the finding that TSM does not directly engage in any federal undertaking. I disagree.

19While the trucks that TSM used to transport its metal to the United States were not owned by TSM during the applicant's employment, TSM cared for the trucks, TSM employees drove the trucks to the United States, and TSM handled all the paper work involving the international transportation of the metal. I therefore find that TSM operated a transportation undertaking which regularly and consistently transported goods internationally.

20I also find that a major part of the applicant's duties were to prepare the metal for the deliveries to the United States, and to actually load the trucks bound for the United States. Even if it were argued that TSM's international transportation operation might be hived off from other operations not involving transportation outside of Ontario, the applicant's duties were an integral part of TSM's international transportation operation, so that the subject matter of this Application is a matter of federal jurisdiction.

Order

21The Tribunal has no jurisdiction over this Application, and it is therefore dismissed.