Tingen v. 1243564 Ontario Limited o/a Total Scrap Management, 2015 HRTO 591

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

James Tingen

Applicant

-and-

1243564 Ontario Limited o/a Total Scrap Management and Henry Rivas

Respondents

DECISION

Adjudicator: Ken Bhattacharjee Date: May 7, 2015 Citation: 2015 HRTO 591 Indexed as: Tingen v. 1243564 Ontario Limited o/a Total Scrap Management

WRITTEN SUBMISSIONS

James Tingen, Applicant Shawn Weston, Representative

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

Henry Rivas, Respondent Crista Rea, Counsel

Introduction

1The purpose of this Decision is to decide whether the Application is within this Tribunal’s jurisdiction.

BACKGROUND

2The organization respondent, which is located in Windsor, Ontario, is a recycling company. It purchases recyclable materials, processes them at its recycling facility, and transports and sells them mainly to recycling foundries in Michigan and Ohio in the United States. On or about February 15, 2012, the applicant began working as a truck driver for the organization respondent. The individual respondent was his manager. The applicant’s primary job duties were transporting recyclable materials to buyers in Michigan and Ohio, and picking up recyclable materials from sellers in and around Windsor. On February 15, 2013, the organization respondent terminated the applicant’s employment.

3On June 26, 2013, the applicant filed an Application with this Tribunal under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, which alleged that the respondent discriminated against him and subjected him to reprisal. On August 26 and September 5, 2013, the respondents filed Responses, which denied the allegations of discrimination and reprisal. On October 21, 2013, the applicant filed a Reply to the Responses.

4The hearing of the merits of the Application began on November 5, 2014. At the outset of the hearing, the respondents requested (for the first time) that the Application be dismissed on a preliminary basis because it falls under federal rather than provincial jurisdiction. I heard brief oral submissions from the parties, directed them to file written submissions, and adjourned the hearing. All the parties filed written submissions following the hearing, and requested that the Tribunal decide the jurisdiction issue based on the written submissions, rather than a further oral hearing.

ANALYSIS

5Pursuant to Rule 13.1 of the Tribunal’s Rules of Procedure and ss. 91 and 92 the Constitution Act, 1867, the Tribunal will dismiss an application that falls under federal jurisdiction. Pursuant to s. 92(10)(a) of the Constitution Act, 1867, transportation works and undertakings that extend beyond the limits of the province are within federal jurisdiction. Furthermore, an undertaking’s activity that extends beyond the limits of the province need not be the largest part of its overall activity in order to bring it under federal jurisdiction. As long as the part of the undertaking’s activity that extends beyond the limits of the province is “continuous and regular”, the entire undertaking will be classified as coming under s. 92(10)(a). See, for example, A.T.U., Local 279 v. Ottawa-Carleton Regional Transit Commission (1983), 1983 CanLII 1936 (ON CA), 44 OR (2d) 560 (Ont. C.A.).

6In my view, the Application at hand falls under federal rather than provincial jurisdiction. It is undisputed that the organization respondent continuously and regularly transported and sold recyclable materials to recycling foundries in the United States, and that one of the applicant’s primary job duties as a truck driver for the organization respondent was the continuous and regular transportation of recyclable materials to buyers in the United States.

7In his submissions, the applicant argued that his Application falls under provincial jurisdiction because the trucks that he drove were owned by a third party trucking company, rather than the organization respondent, and in 2013, the Ontario Ministry of Labour issued compliance orders against the organization respondent under the Occupational Health and Safety Act, R.S.O. 1990, c. O.1, as amended.

8I disagree. I fail to see how the fact that the organization respondent leased trucks from another company, which did not employ the applicant, would bring the Application under provincial jurisdiction. Furthermore, the fact that the Ontario Ministry of Labour deemed the organization respondent to fall under provincial jurisdiction is not determinative, particularly given the fact that there is no evidence that the jurisdiction issue was adjudicated by the Ontario Labour Relations Board. See Dodson v. OPDI Logistics and Ontario Potato Dist. (Alliston) Inc. 1991, 2014 HRTO 1042 at para. 18.

9In the circumstances, I find that this Tribunal has no jurisdiction over the respondents. The Canadian Human Rights Commission has the power to deal with human rights matters that fall under federal jurisdiction.

ORDER

10The Application is dismissed.