Ontario Labour Relations Board
File No.: 0488-00-ES Employment Practices Branch File No.: 60007157 Date: September 29, 2000
Applicant: Unique Personnel Services Inc. Responding Parties: Rae Seaton, Andrew Steepe, Employment Standards Officer and Ministry of Labour
Before: Harry Freedman, Vice-Chair
Decision of the Board
1This is an application under section 68 of the Employment Standards Act, R.S.O. 1990, c. E. 14, as amended (the "Act") for review of Order to Pay No. 55287 dated March 29, 2000 issued by Employment Standards Officer Andrew Steepe. The application is scheduled for hearing before the Board on October 19, 2000.
2Counsel for the applicant, by letter to the Board dated September 22, 2000 which was brought to my attention on the afternoon of September 28, 2000, indicates that the applicant has taken the position that it is federally regulated and is not subject to the Act. Counsel also advises that the applicant intends to raise at the hearing of this matter the preliminary objection to jurisdiction before the Board hears evidence on the merits of the application. Counsel requests that the Board deal first with the issue of jurisdiction and that further dates for hearing be set only if the Board decides that it does have the jurisdiction to deal with this application.
3In my view, it is sensible to have the question of jurisdiction dealt with first. The application for review sets out the facts upon which the applicant relies to assert that it is not subject to the Act because it is a federally regulated employer. The applicant asserts that it provides employees, including drivers, to a number of companies that are extraprovincial common carriers. The employee that is the subject of this application was assigned by the applicant to work as a truck driver for Harmac Transportation, a common carrier regularly and continuously engaged in the interprovincial and international transport of goods. In essence, the applicant asserts that because it is a personnel service providing drivers to a federally regulated trucking company, it is also engaged in a federal undertaking and is therefore subject to federal labour legislation and not subject to the Act.
4Although I am satisfied that the preliminary issue relating to jurisdiction should be dealt with first, that is not to say that the Board will need the entire first scheduled day to hear the parties' evidence and representations on that issue. Indeed, the parties may well be in a position to agree upon the facts relevant to the preliminary issue and only make legal argument on the jurisdictional issue that should be completed fairly quickly.
5In my view, this panel of the Board ought not to dictate how the panel of the Board assigned to hear this matter should conduct the hearing. Therefore, the applicant (and the other parties) should be prepared to deal with both the preliminary objection to jurisdiction and the merits of the application at the hearing scheduled on October 19, 2000. Whether the Board proceeds to deal with the merits of the application at the hearing on that day will be up to the panel of the Board seized with this application.
6This panel of the Board is not seized with this matter.
"Harry Freedman"
for the Board