HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Laurie Elliott
Applicant
-and-
Ramkey Communications Inc.
Respondent
INTERIM DECISION
Adjudicator: Josée Bouchard
Indexed as: Elliott v. Ramkey Communications Inc.
WRITTEN SUBMISSIONS
Laurie Elliott, Applicant
Joshua Mandryk, Counsel
Ramkey Communications Inc., Respondent
Dennis Touesnard, Counsel
1This Application, filed on September 24, 2015, under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleges discrimination with respect to employment because of disability.
2On October 26, 2015, the Tribunal issued a Notice of Intent to Dismiss as it appeared that the Application is outside the Tribunal’s jurisdiction because the respondent, Ramkey Communications Inc., may be a federal government department, agency or a federally-regulated employer.
3On November 23, 2015, the applicant filed submissions arguing that the respondent is properly within provincial jurisdiction regarding its employment relations and human rights matters relating to labour and employment relations.
4On November 27, 2015, the Tribunal informed the parties that it had determined that it was not plain and obvious that the Application does not fall within the Tribunal’s jurisdiction.
5On January 18, 2016, the respondent filed its Response, including a request to dismiss the Application because the respondent carries on business in a federally-regulated field.
6On March 8, 2016, the applicant filed her Response to a Request for an Order to dismiss for lack of jurisdiction indicating that the issue of jurisdiction related to the respondent’s operations was currently before the Ontario Labour Relations Board (“OLRB”). The applicant requested that the Application be deferred pending the outcome of that matter.
7On December 15, 2016, the respondent filed correspondence from Employment and Social Development, which indicates that a Federal Inspector made a determination that the respondent provides a “dedicated service that is considered vital, essential, integral or necessarily incidental to a federal undertaking”. The respondent argues that the correspondence confirms that the respondent is within federal jurisdiction.
8On January 27, 2017, by Interim Decision 2017 HRTO 123, the Tribunal deferred the Application pending the release of the OLRB decision.
9On May 19, 2017, the applicant requested the re-activation of the Application, as the OLRB Chair, Bernard Fishbein, had issued his decision in the matter of Labourers’ International Union of North America, Ontario Provincial District Council v. Ramkey Communications Inc. v. Utility Contractors’ Association of Ontario (Decision No. 1269-15-R dated March 23, 2017) (“the OLRB Decision”). The applicant argues the OLRB determined that the respondent’s labour relations are subject to provincial jurisdiction.
10On June 7, 2017, the respondent filed a Response to a Request for an Order taking the position that the OLRB ultimately decided that the respondent’s Construction Technicians in Board Area 3 only are subject to provincial jurisdiction with respect to union certification. The respondent submits that the OLRB did not make a decision on the respondent’s undertaking as a whole. The respondent requested an order dismissing the Application for lack of jurisdiction.
11On June 30, 2017, the applicant replied to the Response to a Request for an Order, reiterating her request to re-activate and submitting that the OLRB Decision made many factual findings and reached a number of legal conclusions that are clearly applicable to the circumstances of the Application. The applicant argues that the OLRB Decision supports the position that the respondent is under provincial jurisdiction. In addition, in an OLRB Reconsideration Decision dated May 17, 2017, the OLRB was unwilling to place any weight on the conclusion of the Federal Inspector.
12On July 28, 2017, the Tribunal issued a Case Assessment Direction (“CAD”) re-activating the Application and noting as follows:
The respondent has not made submissions to support its position that the respondent’s labour relations, as they pertain to the applicant’s position, are within exceptional federal jurisdiction. In other words, the respondent has not made submissions to explain why the strong presumption of provincial jurisdiction over labour relations is displaced as they pertain to the applicant.
13The Tribunal directed the respondent to file with the Tribunal, and deliver to the applicant, written submissions regarding why its labour relations, as they pertain to the applicant’s position, fall under exceptional federal jurisdiction and displaces the strong presumption of provincial jurisdiction. The respondent filed submissions in response to the CAD on August 9, 2017, and the applicant filed a reply on August 25, 2017.
14This Interim Decision addresses the provincial/federal jurisdictional issue raised by the parties.
are the labour relations as they pertain to the applicant within provincial or federal jurisdiction
Respondent’s Submission
15The respondent argues in its Response that it operates a business in a federally-regulated field. It maintains that the respondent is a cable installation and service business that provides telecommunication installation, repair, maintenance and infrastructure development services including,
a. the installation of cable and related equipment for the distribution of cable and internet services for cable and telecommunication companies to their customers;
b. the connection of cable and telecommunication companies’ customers cable, telephone and/or internet services to their physical premises (i.e. home or office) by a buried or aerial cable or fibre optic line; and
c. the installation, repair and maintenance of buried distribution network cable for distribution of networks owned and operated by cable and internet telecommunication companies.
16The respondent argues that its business is derived from contracts for partnerships with cable and internet telecommunication and that the majority of its business is derived through a contract with Rogers Communications.
17The respondent submits that there is no dispute that cable companies are subject to federal regulation. There further is no dispute that telephone and internet communications are federally-regulated activities. The respondent maintains that customers of the cable and telecommunication companies who retain the respondent do not contact the respondent or its employees directly. The cable and telecommunication companies give work assignments directly to sales technicians and construction technicians via work orders. The respondent maintains that the purpose of all of the respondent’s work is the same, namely to install physical transmission lines from the cable and telecommunication companies’ distribution taps to those customers so that the customers have access to the cable and telecommunication companies’ signal or services. All cable and fibre optics installed by the respondent’s sales or construction technicians are owned by the respective cable or telecommunication company requisitioning the work. The respondent maintains that the installation must meet the specifications required by the requisitioning company and must also be tested to ensure the line can be used within the cable and telecommunication company’s respective distribution systems.
18The respondent argues, therefore, that its work and business are vital, essential or integral to the cable and telecommunication companies’ business and, as such, it falls under the federal jurisdiction.
19The respondent submits that the OLRB Decision is of no assistance in this action because the Decision is only in response to an Application for the union certification of Construction Technicians in Board Area 3 and the OLRB ultimately decided that the those technicians only are subject to provincial jurisdiction with respect to union certification. The OLRB did not make a decision on the respondent’s business as a whole and whether it is of provincial or federal jurisdiction.
20The respondent maintains that the applicant was not employed in the respondent’s construction division. The applicant was an administrative employee employed at the respondent’s head offices.
21The respondent further submits that pursuant to the correspondence from a Federal Investigator of the Employment and Social Development Canada-Labour Division, its employees are federally-regulated.
22The Tribunal noted in its July 28, 2017 CAD that when the respondent made its submissions on jurisdiction in its Response, it did not have the benefit of the OLRB Decision. The Tribunal provided an opportunity for the respondent to make submissions specifically on why its labour relations, as they pertain to the applicant’s position, fall under exceptional federal jurisdiction and displaces the strong presumption of provincial jurisdiction.
23In its response to the CAD, the respondent makes additional submissions, including the following:
a. A business will be subject to federal jurisdiction, including federal regulation of its labour relations, in two circumstances: 1) where it is engaged directly in a federal undertaking; or, 2) where its essential operational nature is vital, essential or integral to a federal undertaking (referred to as “derivative” federal jurisdiction).
b. The Rogers Communications Master Installation and Service Agreement provides that:
o The respondent cannot use subcontractors without Rogers’ approval;
o Rogers dispatches the respondent’s employees;
o The respodent’s employees must use equipment approved and supplied by Rogers;
o Rogers can give instructions directly to the respondent’s employees;
o Rogers must approve all of the respondent’s employees; and
o The respondent’s employees must drive vehicles and wear uniforms with Rogers branding.
c. The respondent’s operations, nature and habitual activities constitute a federal undertaking. The respondent is, pursuant to its agreement with Rogers, indirectly held to federal regulatory standards and is subject to a high level of control by Rogers, which is conducting a federal undertaking.
d. The respondent is incorporated in the province of Ontario. However, the Supreme Court of Canada has repeatedly held that a company’s place of incorporation is not a consideration when determining whether the company is subject to federal regulation of its labour relations.
e. Without the work performed by the respondent’s employees, Rogers would not have a functioning telecommunication network. Both the respondent’s sales and construction technicians perform this “essential link” through their regular contact with the network in a number of roles: installation, manipulation, testing, replacing, and inspecting the network links. Although the respondent’s technicians work on various parts of Rogers’ network, each part is integral to Rogers’ federal work.
f. Pursuant to the respondent’s Summary of Revenue 2015, 99% of its revenue is derived from federally-regulated cable companies and 95% from Rogers specifically. The respondent does not exist without Rogers.
g. The control Rogers exercises over the respondent’s operations is substantial. All of its work for Rogers operates pursuant to the Agreement, the terms and conditions of which were drafted entirely by Rogers. The Agreement gives Rogers the ability to exercise extensive control over many aspects of the respondent’s operations, including:
o Hiring practices;
o Employee training;
o Material, tools and equipment use;
o Allocation and scheduling of work; and,
o Performance standards.
h. Rogers also operates and manages the interrelated computer program system that the respondent uses to track the progress of sales technicians and manage daily workload. The data collected in this program is used to calculate production bonuses for the respondent’s technicians.
i. More generally, Rogers exerts control over the respondent’s business operations via management and monitoring of all aspects of the installation, service and maintenance work it contracts the respondent to perform.
j. Given the significant integration of the respondent’s operation with Rogers’ systems, and in particular Rogers’ control over the assignment of the respondent’s technicians work, payment systems, and training, the physical and operational connection between Rogers and the respondent is extremely high.
Applicant’s Submission
24The applicant observes that the OLRB conducted an extensive hearing process, which included will-say statements that were adopted by the witnesses-in-chief, and evidence which “still consumed some five days and often, and in particular on cross-examination, went into great detail of the minutiae of some of the particular work and how Ramkey operated” (see para. 10 of the OLRB Decision). In light of this, the applicant argues that the Tribunal should follow the OLRB Decision.
25The applicant further submits that the Federal Investigator’s finding was fully and fairly addressed by the OLRB in its May 17, 2017 Reconsideration Decision (“the OLRB Reconsideration Decision”). The OLRB was unwilling to place any weight on this “brief conclusion provided by the Inspector without any real discussion or reasoning, and in the absence of the participation of the Union or the [Utility Contractors’ Association], the parties adverse in interest.” (See para. 13 of the OLRB Reconsideration Decision).
26The applicant submits that the OLRB Decision supports the view that the respondent’s labour relations are subject to provincial jurisdiction. She argues that the OLRB made many factual findings and reached a number of legal conclusions that are clearly applicable to the circumstances of the Application, including the following (see OLRB Decision at paras. 11, 129, 197 and 223):
a. “There is no dispute that the operation of a telecommunications network falls within federal jurisdiction. Ramkey, however, does not itself own or operate any telecommunications network. It does not provide internet, phone or television services to the public. Rather, it provides services to operators of telecommunications networks generally, but not exclusively, to Rogers, and to a smaller extent to others (not telecommunications companies) who wish to build, maintain or service their own local telecommunications network, Equally, Ramkey (or its principal, Richer McConkey) does not own or have any interest in any federally regulated telecommunications company - the customers it serves, such as Rogers, Cogeco, etc. - and they do not own or have any interest in Ramkey”.
b. “Although Ramkey’s witnesses were initially somewhat reluctant to concede or admit this (trying to half-heartedly assert that they only followed Rogers schedules or instructions - which I do not accept, if only because Rogers does not constitute 100% of Ramkey’s business) prior to this application, it appears that Ramkey followed and complied with provincial employment statutes and regulations of Ontario”.
c. “Ramkey has done a great deal of work for Rogers over the years. But not only will it (and does it) vary, but it can end altogether. Ramkey is completely (and arguably easily) replaceable by Rogers. I am not persuaded that I should displace the presumption of provincial jurisdiction just because the amount of work Ramkey does for Rogers is high”.
d. “In the end, in my view, Ramkey has simply not met its onus to displace the strong presumption of provincial jurisdiction over labour relations with only exceptional federal jurisdiction”.
27The applicant maintains that while shared jurisdiction may exist, she submits that a provincially-regulated construction company does not transform itself into being federally-regulated by virtue of having a head office or having administrative employees who work in that office.
28In her reply to the respondent’s submissions in response to the CAD, the applicant argues that the respondent does not raise any issues of fact or law that were not argued and addressed extensively in the OLRB Decision noted above. The applicant maintains that the respondent claims derivative federal jurisdiction based on Rogers’ “extensive control” over its operations. However, these very same allegations were raised by the respondent before the OLRB and were addressed at length at paragraphs 185-191 of the OLRB Decision, where it held as follows:
- But what does Ramkey point me to that makes it vital or essential or integral to Rogers? Ramkey says that Rogers exercised “substantial” control over it, pointing to:
(a) hiring practises
(b) employee training
(c) material, tool and equipment use
(d) allocation and scheduling of work
(e) performance standards
But I think that the actual evidence here that Ramkey points to in order to show how vital, essential or integral it is to the federal undertaking really goes no further than the evidence that any owner/client or general contractor in the construction industry might exercise over any subcontractor, which would not be sufficient to make that subcontractor vital, essential or integral to that general construction - albeit that here, Ramkey operates under a very one-sided “contract of adhesion” with Rogers, more unilaterally promulgated by Rogers than actually negotiated with Ramkey- essentially a take-it or leave-it proposition that Ramkey more often than not simply chooses to take.
For example, although the Rogers contract certainly provides for Rogers to interview or reject prospective Ramkey employees prior to hire, require Ramkey to check references […], or dictate the removal of a Ramkey employee from work on its projects (and leaving aside the degree of intrusiveness that Rogers grants itself), how different is this from any owner/client/general contractor reserving itself the right to control the employees on, or order an employee of a subcontractor from, one of its projects? More importantly, there was no evidence that Rogers ever really exercised such powers. In fact, the evidence […] was to the contrary. Ramkey concedes that regardless of whether Rogers has exercised such powers to date, it “conducts its operations on the basis that Rogers could exercise these powers at any time”. However, Ramkey's fear of the loss of Rogers’ business (on which Ramkey is indisputably dependent) does not make it integral to Rogers’ (not Ramkey’s) business- or make Rogers dependent on Ramkey.
Equally, that Rogers may require some Ramkey employees to undergo some Rogers training before being permitted to perform tasks on some portions of the Rogers network is, not only not arising, but not to my mind, determinative […]
[…] That Rogers might dictate materials to be used in a “Rogers Approved Parts Catalogue” is not necessarily surprising when this is material to be applied to its telecommunications system, but I do not regard that, at least in the construction aspect, as much different than any materials specifications given to any construction contractor- e.g., the gauge of the wire at different stages or levels of the system. Certainly, I heard no evidence that Rogers dictated to Ramkey the particular model or make of any significant construction equipment or vehicles that Ramkey must use in its construction division […] or on the most mundane level the manufacturer or model of shovel or spade that employees must have for the simplest of burial work.
Equally, that Rogers controls the allocation and scheduling of the vast majority of Ramkey’s work, or what work is performed, is not surprising for any company that is engaged in often limited construction projects (or repair work) that must meet customers’ time constraints. […] Though Rogers has given Ramkey access to some of its internal computer systems to assign it work, and Ramkey is obliged to accept that work, it is not Rogers but Ramkey that actually assigns work to particular Ramkey employees as Rogers would not be aware of any particular employee’s skills, aptitudes or attributes. Moreover, the consequences of Ramkey not being available or unable to perform work when Rogers wants appears to be that if too frequent an occurrence, Ramkey simply risks losing Rogers’ business- something that is likely true of all business relationships when a supplier refuses to meet the demands of its customers - even if they are very high demands. It would not lead to any kind of major disruption to the Rogers network (even assuming there was already any disruption at all that a Ramkey technician had been dispatched to repair). Rogers would simply use another contractor - something the Ramkey witnesses readily conceded.
In fact, in my view, this is essentially the essence of all the other examples that Ramkey lists in an attempt to persuade me that it is vital to, or so integrated with, Rogers. […] Rather, I view what is happening here more as a heavily one sided business relationship between the customer and its supplier, where for business and economic power reasons, the customer can assert great influence over the supplier - much like a giant retailer like Walmart dealing with smaller manufacturers (or perhaps even large manufacturers due to the economic might and size of Walmart) anxious to have their products on Walmart shelves. Rogers is free to withdraw or cut back its business to Ramkey- there are lots of competitors able to provide these very same services. Again, I return to what the Ramkey witness conceded - Rogers could easily survive without Ramkey.
29The applicant argues that the above passages make clear that the factual assertions raised by the respondent in its August 8, 2017 submissions were dealt with in full in the OLRB Decision. The OLRB conducted an extensive hearing process. The applicant argues that the respondent has not in this matter provided the Tribunal with any factual or legal basis not to follow the OLRB Decision. The Tribunal should follow and apply the OLRD Decision and find in favour of provincial jurisdiction.
analysis and decision
30I find that the respondent has failed to show that its labour relations, as they pertain to the applicant’s position, fall under exceptional federal jurisdiction and displace the strong presumption of provincial jurisdiction. I concur with the applicant that the respondent’s factual assertions raised in its August 8, 2017 submissions were dealt with in full in the OLRB Decision.
31I note that some passages in the OLRB Decision (See paras. 170, 173, 174, 177 and 179 of the OLRB Decision) seem to indicate that it does not determine the issue of jurisdiction over general employee relations and that an employer may be subject to both federal provincial jurisdiction. However, the OLRB Decision also emphasizes that the respondent has the onus to displace the strong presumption of provincial jurisdiction over labour relations (at para. 223):
In the end, in my view, Ramkey has simply not met its onus to displace the strong presumption of provincial jurisdiction over labour relations with only exceptional federal jurisdiction.
32I find that the OLRB reached its decision based on an extensive evidentiary process, with lengthy and detailed arguments. The respondent has not provided the Tribunal with any factual or legal basis to deviate from the OLRB Decision’s findings. Even though the OLRB Decision addressed specifically the jurisdiction over the labour relations of Construction Technicians in Board Area 3, the OLRB Decision made many factual findings and reached a number of legal conclusions that are applicable to the circumstances of the Application. I also concur with the May 17, 2017 OLRB reconsideration decision, case No. 1269-15-R, that the letter from the Inspector of the Federal Labour Program, which provides no basis for the decision, makes no reference to jurisprudence and did not rely on the views of all the parties, is not determinative. I find that this Application is properly within the jurisdiction of this Tribunal.
order
33The request to dismiss the Application for lack of jurisdiction is denied. The Application shall continue in the Tribunal process.
Dated at Toronto, this 22nd day of September, 2017.
“Signed by”
Josée Bouchard
Vice-chair