Jaffary v. ASP Incorporated, 2016 HRTO 1528

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Syed Jaffary

Applicant

-and-

ASP Incorporated

Respondent

DECISION

Adjudicator: David Muir

Date: November 29, 2016

Citation: 2016 HRTO 1528

Indexed as: Jaffary v. ASP Incorporated

WRITTEN SUBMISSIONS

Syed Jarrary, Applicant

Kashif H. Ali, Paralegal

ASP Incorporated, Respondent

Ranjan Agarwal, Counsel

Introduction

1This is an Application filed under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in the provision of goods and services on the basis of race, colour, ethnic origin and creed.

2In its Response to the Application, the respondent requested that the Application be dismissed in its entirety because it is outside of the Tribunal’s jurisdiction to decide.

3The respondent argues that the Application relates to a dispute related to the conduct of one of its employees who is employed in work that is integral to the operation of a federal work or undertaking, the Greater Toronto Airport Authority (“GTAA”), and therefore falls exclusively under federal jurisdiction, and in particular, within the exclusive jurisdiction of the Canadian Human Rights Commission.

4The applicant responded to the respondent’s submissions. The applicant argues that the respondent is a security company incorporated under the laws of Ontario and is not incorporated under the laws of Canada.

Analysis and Decision

5The respondent states that it is a security company whose core business as it relates to this Application is the provision of security services to the GTAA and relates to the core functioning of the GTAA, a federal work or undertaking. It is of note that Canada Industrial Relations Board has determined the labour relations of this respondent’s operations at the GTAA are within federal jurisdiction. The Canada Industrial Relations Board in Re ASP Incorporated, 2006 CIRB 368 (“Re ASP”), held as follows:

52. The Board is of the view that the general nature of ASP's security operations at the Pearson Airport are integral to the operations of the GTAA and can be considered as an extension of the airport. The GTAA contracts out its security obligations to private specialized service providers, such as ASP, who ensure the control of restricted areas, which are not accessible to the general public. The security services provided by ASP include the control of airside restricted areas by means of a verification of restricted area passes and vehicle permits, foot and door patrol, access to the GTAA administration building, as well as access control to the terminals and construction sites.

53. The Board views the work of ASP's employees at the Pearson Airport as unique compared to the security services it provides to other clients. The level and quality of work of ASP's employees at the airport is dependent on the standards and instructions set by the GTAA in order to maintain a safe and secure airport.

54. These observations are sufficient for the Board to conclude that the security services performed by ASP employees at the airport are vital, essential or integral to the operations of the Pearson Airport, as the Board found in Securiguard Services Limited (342), supra. The fact that these services are contracted out does not make them less integral to the operation of the airport.

55. Accordingly, the Board determines that the services performed by ASP employees are a vital and integral part of Parliament's competency over aerodromes, as provided in section 2 of the Code, and that the labour relations of ASP employees at the Pearson Aiport are governed by the Code.

6The respondent relies on several Decisions of the Tribunal, in particular Voss v. Garda Canada Security Corporation, 2013 HRTO 188, where the Tribunal dismissed an Application filed by a working supervisor of security guards working at Pearson because aeronautics is federally regulated. In the Voss case, the Tribunal relied on a decision of the Federal Court of Appeal in Re Garda Canada Security Corporation, which cited with approval a line of CIRB decisions that had determined that the employment of airport perimeter guards falls within federal jurisdiction. The respondent notes in particular that one of those cases was Re ASP, above.

7I agree with the respondent. There is no question that aeronautics is a matter within federal jurisdiction. It is also clear from the decisions set out above and others cited by the respondent that the provision of security services at airports and in particular at this airport are services integral to the operation of this federal work or undertaking. As such the Tribunal has no jurisdiction over the Application. I also agree with the respondent that it makes no difference that this case relates to the provision of services and is not related to employment. The cases above stand for the proposition that the services provided are integral to the federal work or undertaking. The fact, as the applicant argues, that the respondent is incorporated pursuant to a provincial statute is not determinative and in fact is irrelevant to the issue.

8For all of these reasons, the Application is dismissed.

Other Matters

9In its Response, the respondent had proposed to add a further individual respondent. That individual was never delivered of the Application and it appears that that neither party could provide current contact information for this individual. In light of the result above I find that there is no need to deal with the status of the proposed individual respondent.