Human Rights Tribunal of Ontario
B E T W E E N:
Randall Taylor Applicant
-and-
Goderich-Exeter Railway Company Ltd. Respondent
DECISION
Adjudicator: Jo-Anne Pickel Date: September 19, 2016 Citation: 2016 HRTO 1224 Indexed as: Taylor v. Goderich-Exeter Railway Company Ltd.
WRITTEN SUBMISSIONS
Randall Taylor, Applicant Erin Buchner, Counsel
Goderich-Exeter Railway Company Ltd., Respondent Landon Young, Counsel
Introduction
1This Decision addresses the issue of whether the Application falls within the Tribunal’s jurisdiction under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). For the reasons that follow, I find that the Application falls under federal jurisdiction. The respondent operates a railway that has been declared to be for the general advantage of Canada and therefore falls under federal jurisdiction.
BACKGROUND
2The applicant filed an Application alleging discrimination in employment because of disability. In its Response, the respondent sought the dismissal of the Application on the basis that the subject matter falls under federal jurisdiction. The applicant opposed the request.
3There is no dispute that the respondent operates a short line railway that is located entirely in Ontario. However, the respondent states that it is owned by Genesee & Wyoming Canada Inc. and submitted documentation from its website which supports this assertion.
4Genesee & Wyoming Canada Inc. also owns other federally-regulated railways in Canada, including the following:
a. The St. Lawrence & Atlantic Railroad, which operates between Portland, Maine and Ste. Rosalie, Quebec; and
b. the Ottawa Valley Railway which operates between Sudbury, Ontario and Temiscaming, Quebec.
5The respondent holds a certificate of fitness issued by the Canadian Transportation Agency (“CTA”). The CTA regulates federally-regulated railways in Canada under the Canada Transportation Act, S.C. 1996, c. 10.
Findings
6Section 92(10) of the Constitution Act, 1867, provides that the provinces have jurisdiction over:
Local Works and Undertakings other than such as are of the following classes:
c. Lines of Steam or other Ships, Railways, Canals, Telegraphs, and other Works and Undertakings connecting the Province with any other or others of the Provinces, or extending beyond the Limits of the Province;
d. Lines of Steam Ships between the Province and any British of Foreign Country;
e. Such Works as, although wholly situate within the Province, are before or after their Execution declared by the Parliament of Canada to be for the general Advantage of Canada or for the Advantage of Two or more of the Provinces. [emphasis added]
7The works and undertakings set out in s. 92(1)(a)-(c) above fall under federal jurisdiction by operation of s. 91(29) of the Constitution Act, 1867.
8Therefore, in Canada interprovincial railways fall under federal jurisdiction and intraprovincial railways (that is, those located entirely within a province) generally fall under provincial jurisdiction. However, there is an important exception to this rule which is found in s. 92(1))(c). Under this section, any intraprovincial railway declared by Parliament to be for the general advantage of Canada or for the advantage of two or more of the provinces falls under federal jurisdiction.
9Section 88(3) of the Canadian Transportation Act declares the following railways to be works for the general advantage of Canada:
a railway, or a portion of a railway, whether or not constructed under the authority of an Act of Parliament, that is owned, controlled, leased or operated by a person who operates a railway within the legislative authority of Parliament.
10The full section states as follows:
88 (1) This Part [Part III of the Canada Transportation Act which deals with Railway Transportation] applies to all persons, railway companies and railways within the legislative authority of Parliament.
Special cases
(2) Without limiting the effect of subsection