Constantine v. Securitas Canada Ltd., 2015 HRTO 81

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Marango Constantine

Applicant

-and-

Securitas Canada Ltd. and The National Gallery of Canada

Respondents

INTERIM DECISION

Adjudicator: Paul Aterman

Date: January 20, 2015

Citation: 2015 HRTO 81

Indexed as: Constantine v. Securitas Canada Ltd.

WRITTEN SUBMISSIONS

Securitas Canada Ltd., Respondent

Daniel McDonald, Counsel

The National Gallery of Canada, Respondent

Caroline Richard, Counsel

Introduction

1This Interim Decision deals with two requests, one made by each respondent. The request of the respondent Securitas Canada Ltd. (“Securitas”) to have the Application dismissed as against it is denied. The request of the respondent National Gallery of Canada (“the Gallery”) to have the Application dismissed as against it is granted. The reasons below explain why.

2Securitas has a contract to supply security services at the Gallery. From 2002 until April 6, 2014 the applicant worked for Securitas as a Security Officer and then a Site Security Supervisor at the Gallery. The applicant’s position was eliminated when Securitas restructured its operations at the Gallery. He was invited to apply for one of the remaining Site Supervisor positions, but was unsuccessful in competing for it.

3He alleges that his failure to obtain the new position was tainted by discrimination. He filed this Application, which alleges discrimination with respect to employment because of race, colour, ancestry and ethnic origin contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

4Neither respondent has yet filed a substantive response to the Application. Both request dismissal on the grounds that they are undertakings which fall within federal jurisdiction.

5The applicant has not responded to either request, but that is not determinative. The Tribunal has an independent obligation to determine whether it has jurisdiction.

6With respect to each respondent the Tribunal must decide whether that respondent’s operations relate to matters that go to the vital or essential part of a federal undertaking or the core of a federal area of jurisdiction, making the Code inapplicable by virtue of the constitutional doctrine of interjurisdictional immunity.

request by securitas

7Securitas submits that the Gallery is a federal undertaking. The Gallery is a Crown corporation constituted by federal legislation, the Museum Act, S.C. 1990, c. 3. Securitas asserts that, as the exclusive provider of security services to the Gallery, its activities form an integral part of the Gallery’s operations.

8Securitas delivers its services in accordance with the Gallery’s directions. The services include perimeter monitoring, access control, internal patrol, internal monitoring and emergency first response.

9Securitas acknowledges that provides security services at many sites in Ontario that fall within provincial jurisdiction. However, it argues that its operations at the Gallery are severable from its other operations because its employees are permanently assigned to the Gallery, and specifically trained for its “unique cultural operations and security requirements”.

10Labour relations – and, by implication, human rights issues arising in the employment context – are presumptively within provincial jurisdiction (see: Tessier Ltée v. Quebec (Commission de la santé et de la sécurité du travail), 2012 SCC 23, (“Tessier”)).

11Tessier explains (at para. 17) that the presumption in favour of provincial jurisdiction can be ousted and federal jurisdiction established in two ways: directly or through derivative jurisdiction. The distinction is explained as follows (para.18):

In the case of direct federal labour jurisdiction, we assess whether the work, business or undertaking’s essential operational nature brings it within a federal head of power. In the case of derivative jurisdiction, we assess whether that essential operational nature renders the work integral to a federal undertaking. In either case, we determine which level of government has labour relations authority by assessing the work’s essential operational nature.

12Securitas bases its argument on the notion of derivative jurisdiction. In doing so it relies heavily on the decision of the Federal Court of Appeal in Syndicate des agents de sécurité Garda, 2011 FCA 302, 2011FCA 302 ("Syndicate").

13Syndicate dealt with which order of government had jurisdiction over the labour relations of security guards contracted to provide services at federal immigration detention centres in Quebec. Securitas, in its argument, focuses on some of the similarities between the duties performed by the guards in Syndicate and the guards at the Gallery, such as perimeter security and control of access. It also cites two decisions of this Tribunal, Pama v. G4S Secure Solutions, 2014 HRTO 190 ("Pama") and Voss v. Garda Canada Security, 2013 HRTO 188 ("Voss") as examples of the application of Syndicate.

14In my view the respondent’s reading of Syndicate is selective and does not take account of the reason why the Federal Court of Appeal found as it did.

15In Syndicate the Court of Appeal states at para. 57:

We are not dealing here with monitoring public access to a building, or verifying the identity of visitors, or monitoring buildings to prevent theft or other wrongdoings. Rather, Garda's services to the Immigration Prevention Centre ensure the detention of foreign nationals under a federal statute. None of Garda's other clients may operate a detention centre or enter into a contract with Garda to provide for the detention of individuals. It is therefore wrong to hold that the services provided by Garda for the Immigration Prevention Centre are similar to those services Garda provides to its other clients. Ensuring the detention of an individual is a service profoundly different and distinct from those provided to Garda's other clients, and this very specific detention service is moreover governed by federal government guidelines, standards and policies with which all the security guards must comply.

16In other words, the Federal Court of Appeal found that the providers of security services in Syndicate were exercising a function that is the monopoly of the state: the detention of individuals. As is evident from the passage above, that function is wholly distinguishable from the ordinary functions of a security guard, that the Federal Court of Appeal describes as “…monitoring public access to a building, or verifying the identity of visitors, or monitoring buildings to prevent theft or other wrongdoings”.

17In my view the activities of guards at the Gallery fall squarely within the ordinary functions of a security guard. They are there to monitor access to the Gallery, keep an eye on visitors and prevent theft or other wrongdoings. The respondent has not established any factual foundation that takes the activities of guards at the Gallery outside the ordinary functions of security guards at other facilities that fall within provincial jurisdiction. This case is distinguishable from both Syndicate and the Tribunal’s decision in Pama, which was also about a security guard working at a federal immigration detention facility.

18The fact that the guards are assigned to the Gallery on a permanent basis is not, in and of itself, a reason to find that this brings them within federal jurisdiction. It would be open to parties to a contract for security services to make this a term of the contract, regardless of which order of government had constitutional authority over the labour relations aspect of that contract.

19In my view, the Tribunal’s decision in Voss is of no assistance to the respondent. It involved the provision of security services at airports. Voss draws on the reasoning in Syndicate, and in particular on a passage where the Federal Court of Appeal explains that the provision of security services at airports needs to meet specific requirements of the Aeronautics Act, R.S.C. 1985, c. A-2. Again, federal jurisdiction is established in Voss because there are particular requirements for the provision of those services which take them out of the ambit of the routine provision of security services that fall within provincial jurisdiction.

20That is not the case here. To succeed on this request Securitas has to displace the presumption of provincial authority over the labour relations aspects of the contract between it and the applicant. It has not established a factual foundation that would differentiate the services it provides to the Gallery from other security contracts that are subject to provincial jurisdiction. The respondent Securitas’ request to dismiss this Application is denied.

Request by The gallery

21Where an undertaking is not identifiable under s.91 of the Constitution Act, 1867, 30 & 31 Victoria, c.3 (U.K.) yet in substance deals with matters of national concern, it falls within federal jurisdiction (see: R. v. Crown Zellerbach Canada Ltd., 1988 CanLII 63 (SCC), [1988] 1 S.C.R. 401).

22While cultural institutions are neither identified in s. 91 nor s. 92 of the Constitution Act, 1867, it is evident from a reading of the Museum Act that the purpose of the National Gallery is national in scope. Section 5 reads as follows:

The purposes of the National Gallery of Canada are to develop, maintain and make known, throughout Canada and internationally, a collection of works of art, both historic and contemporary, with special but not exclusive reference to Canada, and to further knowledge, understanding and enjoyment of art in general among all Canadians.

23I conclude from this that the Gallery is a federal undertaking and is therefore beyond the jurisdiction of the Tribunal.

24If I am wrong in that regard, the Gallery was not the applicant’s employer in any event. The Gallery asserts that it had no control over the elimination of the applicant’s position, nor the subsequent decision not to hire him into the position he competed for. If either of those decisions was discriminatory, the Gallery had nothing to do with them. The applicant has not taken issue with those assertions despite having been given the opportunity to do so. This is a second basis upon which to dismiss the Application as against the Gallery.

25The Gallery’s request to dismiss the Application as against it is granted.

order

26The request of the respondent Securitas to dismiss the Application as against it is denied. The respondent Securitas has 35 days from the date of this Interim Decision to file its Response to the Application.

27The request of the respondent National Gallery of Canada is granted and the Application is dismissed as against it.