Donald Marsden v. Alderville First Nation, 2015 HRTO 812

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Donald Marsden Applicant

-and-

Alderville First Nation Respondent

INTERIM DECISION

Adjudicator: Brian Eyolfson Date: June 17, 2015 Citation: 2015 HRTO 812 Indexed as: Marsden v. Alderville First Nation

WRITTEN SUBMISSIONS

Donald Marsden, Applicant Danny Kastner, Counsel

Alderville First Nation, Respondent Brian T. Daly, Counsel

Introduction

1This Application was filed on August 29, 2014 and alleges discrimination with respect to employment because of age, contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant was employed by the respondent, Alderville First Nation, as a school bus driver, until his employment was terminated on August 5, 2014.

2On November 17, 2014, the respondent filed a Response to the Application. In its Response, the respondent asked the Tribunal to defer the Application, pending completion of related claims before the Canadian Human Rights Commission (the “CHRC”) and at the federal Labour Program (“Labour Program”).

3In a Reply filed December 12, 2014, the applicant provided submissions opposing the respondent’s deferral request. The respondent and the applicant filed additional submissions with respect to the issue of deferral, on January 15 and 16, 2015, respectively.

4In a Case Assessment Direction (“CAD”), dated March 10, 2015, the Tribunal indicated that it appeared that there may be an issue as to the Tribunal’s jurisdiction to determine this Application, as it appeared that the matter may be subject to federal jurisdiction. The parties were asked to provide submissions on the issue of jurisdiction, and to clarify if either the CHRC and/or the Labour Program were addressing the issue of jurisdiction in the related claims. The Tribunal indicated that, upon receipt of the parties’ submissions, or after the time for providing submissions had passed, the Tribunal may determine the issues of deferral and/or jurisdiction, or issue further directions. In response to the Tribunal’s CAD, the parties provided submissions on March 31, 2015.

DEFERRAL

5In its Response to the Application, the respondent sought deferral of the Application, pending completion of the related claims before the CHRC and the Labour Program. In his Reply, the applicant submitted that the respondent has consistently taken the position that this Tribunal, and not any federal body, has jurisdiction over this matter. He also submitted that this Application was commenced before either the CHRC or the Labour Program complaints, and that the federal complaints were filed to protect the applicant’s rights in the event this Tribunal declines jurisdiction over this matter. He submits that the parties understand this to be a provincial matter, and both parties intend to defer the federal proceedings, pending resolution of this Application.

6In further correspondence dated January 15, 2015, the respondent submitted that the applicant had not sought deferral of the federal proceedings, and that an adjudicator advised on January 14, 2015, that a notice of hearing would be issued for proceedings to commence before him in the Labour Program matter on July 17, 2015. The applicant responded, on January 16, 2015, that the July 2015 date before the adjudicator is a conditional date only, and that, should this Tribunal accept jurisdiction, the federal hearing will be cancelled.

7The Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative (Rule 14.1). The Tribunal has stated that deferral is not automatically invoked simply because the parties are involved in other legal proceedings. It is a discretionary measure that the Tribunal exercises on the basis of the circumstances in each case.

8The Tribunal has deferred Applications where an applicant has also filed a complaint with the CHRC, and it appears that the CHRC is addressing the issue of federal/provincial jurisdiction. For example, in Tshibangu v. Citi Cards Canada Inc., 2014 HRTO 1256, the Tribunal held that, where the CHRC indicated its intent to examine the issue of jurisdiction, deferral was appropriate in order to avoid a duplication of effort by requiring the parties to provide submissions on the jurisdictional issue to both the CHRC and the Tribunal. See also: Maronese v. Teleperformance Canada, 2012 HRTO 1599, and Bradley v. CEVA Logistics Canada, ULC, 2012 HRTO 496.

9In the present case, the applicant submits in response to the Tribunal’s CAD that neither the CHRC nor the Labour Program are addressing the jurisdictional issue. The applicant reiterates that a conditional hearing date is scheduled for July 17, 2015 with the Labour Program, but will not proceed if the Tribunal confirms jurisdiction over the subject matter of this Application. More recently, the parties advised the Tribunal that the CHRC proceeding is “on hold”, with no dates scheduled, and the CHRC has not determined, and is not scheduled to determine, the issue of jurisdiction.

10Both parties have provided submissions, as set out below, clearly agreeing that this matter falls under provincial jurisdiction. The applicant has submitted that the CHRC and Labour Program complaints were commenced after this Application, in order to protect the applicant’s rights in the event the Tribunal declines jurisdiction over this matter. The applicant has also submitted that, while a hearing date is scheduled in the Labour Program matter, it is a conditional date, pending this Tribunal’s determination of jurisdiction. There is also no indication that the CHRC is addressing the issue of jurisdiction, or otherwise proceeding with the related complaint filed with the CHRC, at this time. In the circumstances, I find that deferral of the Application is not appropriate based on the information currently before me, and I turn to the issue of jurisdiction.

THE PARTIES’ SUBMISSIONS ON JURISDICTION

11The applicant submits that the applicable legal test is the “functional test” described by the Supreme Court of Canada in NIL/TU,O Child and Family Services Society v. B.C. Government and Service Employees’ Union, 2010 SCC 45, [2010] 2 S.C.R. 696 (“NIL/TU,O”) at para. 3: “[the functional test] calls for an inquiry into the nature, habitual activities and daily operations of the entity in question to determine whether it constitutes a federal undertaking.”

12The applicant also accepts the facts and arguments presented in the respondent’s submissions. The applicant submits that the applicant’s employment appears to be regulated by provincial legislation, and the presumption of provincial jurisdiction over employment matters should apply in the present case.

13The respondent submits that the applicant asserts that this Tribunal, and not any federal tribunal, has jurisdiction over the subject matter of the Application. The respondent states that it does not disagree that the subject matter of the Application is, under the “functional test”, within the provincial sphere.

14With respect to the applicant’s employment with the respondent, the respondent explains as follows: the applicant was an employee in the respondent’s Education Department (“ED”); he was one of five bus drivers in the ED; he reported to, and was supervised by, the Manager of Education; in addition to the five bus drivers and the Manager, there was one other employee, a secretary/clerk, in the ED; the ED is a discrete unit within the respondent’s workplace, and is not connected or integral to any other unit or department of the respondent; the work activity of the applicant was primarily to drive a high school bus route within Ontario between the respondent First Nation and high schools in Cobourg, Ontario; and, at the time of the termination of the applicant’s employment, he drove approximately 24 students to Cobourg high schools, approximately 14 of whom were Aboriginal, and 10 were not.

15The respondent also submits that there is no manner of agreement between the respondent and the federal government regarding education. The respondent explains that the operations of its ED, including the capital and operating expenses of the school buses, are financed by unallocated monies contributed by the federal government to the respondent. The respondent can use the unallocated monies for any purpose, and is not required to use them to finance the ED.

16The respondent explains that it has an Education Service Agreement with the Kawartha Pine Ridge District School Board (the “School Board”), pursuant to section 188(1) of the Education Act, R.S.O. 1990, c. E-2. The agreement provides that the Board may, upon a request by the respondent, provide transportation for the respondent’s pupils, and the respondent will make payment for transportation provided, in accordance with “Ministry Regulations”. The respondent explains, however, that it has not requested that the School Board provide transportation for its students. Rather, the respondent provides transportation using vehicles that it owns, and that are operated by its employees.

17The respondent also submits that the operation and condition of the school buses the applicant operated are regulated solely by provincial regulation: Highway Traffic Act, R.R.O. 1990, Reg. 612 (School Buses), Reg. 199/07 (Commercial Vehicle Inspections – School Buses (Schedules 5 and 6)); Highway Traffic Act, R.S.O. 1990, c. H-8, s. 175 (School Buses); Public Vehicles Act, R.R.O. 1990, Reg. 982. Also, the applicant was required to have, and did have, a provincial license permitting him to operate a school bus.

18The respondent submits that the applicant’s complaint is solely connected to his employment relationship with the respondent, and labour relations are presumptively provincial. They submit that this presumption is not displaced when the activity of the employee is in a discrete unit involving provincially governed education and, more particularly, provincially regulated and governed school bus operation. They submit that the work activities of the applicant were in the provincial sphere.

ANALYSIS AND DECISION

19In NIL/TU,O, the Supreme Court of Canada explained that it has consistently endorsed and applied a distinct legal test for determining the jurisdiction of labour relations on federalism grounds. The Court explained that the inquiry, known as the “functional test”, calls for an inquiry into the nature, habitual activities and daily operations of the entity in question to determine whether it constitutes a federal undertaking. The majority of the Court held that, if the functional test is inconclusive, further examination is necessary to determine whether provincial regulation of the employer's labour relations "would impair the core of the federal head of power at issue”. (at para. 18).

20The Supreme Court in NIL/TU,O also stated that Canadian courts have recognized that labour relations are presumptively a provincial matter, and that the federal government has jurisdiction over labour relations only by way of exception. The Court referred to Northern Telecom Ltd. v. Communications Workers of Canada, 1979 CanLII 3 (SCC), [1980] 1 S.C.R. 115 (“Northern Telecom”) at page 132, wherein Dickson J., for a unanimous Court, adopted principles set out in Beetz J.’s majority in Construction Montcalm Inc. v. Minimum Wage Commission, 1978 CanLII 18 (SCC), [1979] 1 S.C.R. 754, including that: “Parliament has no authority over labour relations as such nor over the terms of a contract of employment; exclusive provincial competence is the rule.” (at para. 13)

21The issue in NIL/TU,O was whether its labour relations fell within federal jurisdiction over “Indians” under s. 91(24) of the Constitution Act, 1867, because its services are designed for First Nations children and families. In Northern Telecom, the telecommunications company, itself, was unquestionably a federal “work, undertaking or business” under s. 92(10)(a) of the Constitution Act, 1867. The issue was the jurisdiction of the labour relations of a subsidiary operation, an installation department, of the company. See NIL/TU,O at paras. 2, 13 and 14, and Northern Telecom at pages 132 - 135.

22In the present case, the issue is whether or not the respondent’s employment of school bus drivers falls under federal or provincial jurisdiction. For the reasons that follow, I find that the respondent’s provision of school bus services, by drivers employed in its ED, is a provincial undertaking.

23It appears from an examination of the nature, habitual activities and daily operations of the respondent’s ED, that its primary operation is bussing students to high schools in Cobourg which is not a federal undertaking. The respondent has an Education Service Agreement with the School Board, pursuant to provincial legislation. The operation and condition of the respondent’s school buses are provincially regulated, and its bus drivers are required to be provincially licensed. In the circumstances, I find that the respondent’s provision of school bus services to students attending high school in Cobourg is within the provincial sphere, and that its employment of school bus drivers is, therefore, provincially regulated.

24I note that, while the financing of the respondent’s ED originates with the federal government, the contributions are unallocated, and there is no federal operational involvement in the respondent’s provision of school bus services. As such, I find that the federal funding does not change the nature of the respondent’s school bus operations from provincial to federal. See NIL/TU,O at para. 40.

25While the respondent First Nation is also undoubtedly engaged in a federal undertaking with respect to matters concerning s. 91(24) of the Constitution Act (matters regarding “Indians, and Lands reserved for the Indians”), there is no suggestion, nor does it appear, that the provision of school bus services by the respondent’s ED is integral to any federal undertaking of the respondent. See Northern Telecom at pages 132 – 135. The primary operation of the respondent’s ED is bussing students to high schools in Cobourg. The parties also agree that the ED is a discrete unit, and that it is not connected or integral to any other unit or department of the respondent First Nation.

26Applying the functional test set out in NIL/TU,O, I find that the operations of the respondent’s ED fall within provincial jurisdiction, and the Application can proceed in the Tribunal’s process.