Hamm v. Canadian Blood Services, 2015 HRTO 988

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Theresa Hamm Applicant

-and-

Canadian Blood Services, Michelin Morton and Andrea Bradley-Rice Respondents

INTERIM DECISION

Adjudicator: Laurie Letheren Date: July 24, 2015 Citation: 2015 HRTO 988 Indexed as: Hamm v. Canadian Blood Services

WRITTEN SUBMISSIONS

Theresa Mary Hamm, Applicant Shala McDonald, Paralegal

Canadian Blood Services, Michelin Morton and Andrea Bradley-Rice, Respondents Sarah Eves, Counsel

Introduction

1This Application 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”).

2In a letter dated June 9, 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. The Tribunal indicated that, upon receipt of the parties’ submissions, or after the time for providing submissions had passed, the Tribunal may determine the issue of jurisdiction. The parties have both provided submissions.

3The applicant takes the position that this Application is within the Tribunal’s jurisdiction. The applicant submits that although the respondent receives funding from the Federal Government, employment matters are within the provincial jurisdiction. The applicant is a member of Ontario Public Service Employee Union (“OPSEU”), the union that obtained bargaining rights at the respondent in 1994 and that OPSEU will deal with matters at the Ontario Labour Board (sic).

4The applicant submits that the Application can be distinguished from the Tribunal decision, Woodwork v. Canadian Blood Services, 2009 HRTO 1027 (“Woodwork”) because Woodwork did not address allegations of discrimination in employment. The allegations raised in Woodwork are with respect to discrimination in receipt of services provided by the respondent and those services are federally regulated.

5The respondent also takes the position that this Application is within the Tribunal’s jurisdiction.

6The respondent confirms that the applicant is a member of OPSEU and submits that all employment matters fall under provincial jurisdiction. The respondent states that the applicant is employed by the respondent as a Supply Technician. Although some of the services the respondent provides are federally regulated, at no time has the applicant or other respondent employees who are members of OPSEU been treated as federally regulated employees.

7The respondent agrees with the applicant on the reasons why this Application can be distinguished from the Woodwork decision and also notes that the Woodwork decision made reference to the fact that other decision-makers have confirmed that labour relations of the respondent fall under provincial jurisdiction. The respondent also noted a decision of the Canadian Human Rights Commission, Calidonna v. Canadian Blood Services, CHRC File No. 20140117 that confirmed that the respondent falls within provincial jurisdiction for employment matters.

ANALYSIS AND DECISION

8As noted above, there was no dispute in this case that labour relations and human rights relating to labour relations are presumed to fall under provincial jurisdiction. There was also no dispute that the applicant is a provincially regulated employee.

9Federal 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. See Tessier Ltée v. Quebec (Commission de la santé et de la sécurité du travail), 2012 SCC 23 at paras. 17-18 (“Tessier”).

10Although much of the service provided by the respondent in the collection and distribution of blood and blood products and the maintenance of the organ and stem cell registry is federally regulated, the federal regulation does not extend to the activity that the applicant is engaged in as the respondent’s employee. I find that the work of a Supply Technician falls within provincial jurisdiction and therefore this Application is within the Tribunal’s jurisdiction. My finding is supported by a number of Tribunal decisions which involve allegations of discrimination in employment against the respondent. See for example: Sambhi v. Canadian Blood Service, 2013 HRTO 352 and Villena v. Canadian Blood Services, 2013 HRTO 2120