Summerhill v. AllStaff Inc., 2016 HRTO 1647

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Wes Summerhill

Applicant

-and-

AllStaff Inc. and Ryder Truck Rental Canada Ltd.

Respondents

INTERIM DECISION

Adjudicator: Ken Bhattacharjee

Date: December 21, 2016

Citation: 2016 HRTO 1647

Indexed as: Summerhill v. AllStaff Inc.

WRITTEN SUBMISSIONS

Wes Summerhill, Applicant

Justin Chong, Counsel

Ryder Truck Rental Canada Ltd., Respondent

Andrew Bratt, Counsel

Introduction

1The purpose of this Decision is to decide whether the Application against Ryder Truck Rental Canada Ltd. is within this Tribunal’s jurisdiction.

BACKGROUND

2On July 7, 2016, the applicant filed an Application with this Tribunal under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, which alleged that the respondents discriminated against him with respect to employment.

3On August 17, 2016, the respondent, Ryder Truck Rental Canada Ltd. (“Ryder”), filed a Response and a Request for an Order During Proceedings (“RFOP”), which requested that the Application against it be dismissed on a preliminary basis because it falls under federal rather than provincial jurisdiction. Ryder stated:

The Applicant was staffed on Ryder’s Honda Account where inbound shipments are received at a cross-dock, unloaded and sorted for final delivery, and redeployed outbound within the same day. The goods that pass through the cross-dock on a daily basis arrive from, and are sent to, various locations within Ontario, as well as other Canadian provinces and the United States.

The extra-provincial aspect of the operation is continuous and regular.

4On October 7, 2016, the applicant filed a Reply and a Response to the RFOP, which opposed Ryder’s request to dismiss the Application against it on a preliminary basis. He did not dispute the facts set out in the Ryder’s RFOP, but stated that it is not plain and obvious that Ryder is a federal employer. The applicant stated that his counsel contacted a staff person at the Canadian Human Rights Commission (“CHRC”), who told him that the CHRC lists Ryder as a provincial employer.

ANALYSIS

5Pursuant to Rule 13.1 of the Tribunal’s Rules of Procedure and ss. 91 and 92 the Constitution Act, 1867, the Tribunal will dismiss an application that falls under federal jurisdiction. Pursuant to s. 92(10)(a) of the Constitution Act, 1867, transportation works and undertakings that extend beyond the limits of the province are within federal jurisdiction. Furthermore, an undertaking’s activity that extends beyond the limits of the province need not be the largest part of its overall activity in order to bring it under federal jurisdiction. As long as the part of the undertaking’s activity that extends beyond the limits of the province is “continuous and regular”, the entire undertaking will be classified as coming under s. 92(10)(a). See, for example, A.T.U., Local 279 v. Ottawa-Carleton Regional Transit Commission (1983), 1983 CanLII 1936 (ON CA), 44 OR (2d) 560 (Ont. C.A.).

6Based on the facts before me, I find that the Application falls under federal rather than provincial jurisdiction. Ryder provided uncontested facts that the applicant was staffed on Ryder’s Honda Account where inbound shipments are received and redeployed outbound to various locations in Ontario, other Canadian provinces and the United States, and that the extra-provincial aspect of this operation is continuous and regular.

7The applicant argued that it is not plain and obvious that Ryder is a federal employer, but this is not the applicable test after a Response to the Application has been filed. See Rule 13.2 of the Tribunal’s Rules. After the pleadings have been filed, the Tribunal must determine, based on the facts before it, whether the Application falls within its jurisdiction. The applicant did not dispute the facts set out by Ryder. Instead, he merely stated that a CHRC staff person told his counsel that the CHRC lists Ryder as a provincial employer. This has little or no countervailing weight in response to the facts set out by Ryder.

8The Application against Ryder is dismissed, and it is removed as a respondent from the title of proceeding.

9The applicant and the respondent, AllStaff Inc. (“AllStaff”), appear to agree that the Application against AllStaff is within this Tribunal’s jurisdiction. Therefore, the Application against AllStaff will continue to be processed.

ORDER

10The Application against Ryder Truck Rental Canada Ltd. is dismissed.