Scharfe v. Clover Towing and others, 2016 BCHRT 177 (CanLII)
Date Issued: November 9, 2016
IN THE MATTER OF THE HUMAN RIGHTS CODE, R.S.B.C. 1996, c. 210 (as amended) AND IN THE MATTER of a complaint before the British Columbia Human Rights Tribunal
REASONS FOR DECISION APPLICATION TO DISMISS: Section 27(1)(a)
Tribunal Member: V. A. Pylypchuk
On her own behalf: Lorri Scharfe
Counsel for the Respondents: Ib S. Petersen
 On February 17, 2016, Lorri Scharfe (the “Complainant”) filed the complaint under s. 13 of the British Columbia Human Rights Code (“Code”) alleging discrimination in the area of employment on the grounds of mental and physical disability against Clover Towing Ltd., Kit Moller, Cari Robertson, Aly Brands, Taidum Dubuc, and Crystal O’Reilly-Voygt.
 On March 11, 2016, the Tribunal accepted the complaint for filing against Clover Towing Ltd., Kit Moller and Cari Robertson (the “Respondents”). The complaint against Aly Brands, Taidum Dubuc, and Crystal O’Reilly-Voygt was not accepted for filing.
 Subsequent to the Tribunal’s letter of March 11, 2016, the Tribunal attempted to schedule a settlement conference between the parties. Ultimately, on July 26, 2016, a settlement meeting was scheduled for October 21, 2016.
 However, on August 18, 2016, the Respondents applied to have the complaint dismissed on the grounds that the Tribunal lacks jurisdiction (“Dismissal Application”). The Respondents asserted that the complaint fell under federal human rights legislation. This decision addresses the Dismissal Application.
II PROCEDURAL BACKGROUND
 On August 22, 2016, the Tribunal forwarded the Dismissal Application, together with attached documents, to the Complainant. The Tribunal asked the Complainant to review the Dismissal Application and call the Tribunal to discuss next steps.
 A week later, on August 29, 2016, the Complainant contacted the Tribunal expressing confusion as to the jurisdictional issue.
 On September 21, 2016, the Respondents followed up with the Tribunal requesting an update with respect to the jurisdictional issue set out in its letter of August 18, 2016.
 On September 22, 2016, the Complainant contacted the Tribunal having received a copy of the Respondents’ letter asking for an update. The Complainant advised that she had been in touch with the federal labour branch which dealt with her issues of severance and vacation pay. She indicated that there are two other aspects to her complaint yet to be addressed; namely, wrongful termination while she was off sick and discrimination by the employer while employed as well as bullying in the workplace. She said she was advised to contact “Human Rights”, which she says she did. She ends her correspondence by asking if “there is such a thing as Federal Human rights.”
 On October 7, 2016, the Tribunal invited submissions from the parties on the jurisdictional question. The parties were asked to provide their submissions by October 14, 2016.
 On October 7, 2016, the Complainant provided her comments concerning the jurisdictional issue and, on October 12, 2016, the Respondents provided their reply.
 On October 20, 2016, the early settlement meeting was adjourned pending the Tribunal’s decision on the jurisdictional issue.
III APPLICATION TO DISMISS THE COMPLAINT
- a) The Respondents’ Submission
 The Respondents say that the Code applies to matters that fall within provincial, rather than federal, jurisdiction. The Respondents assert that the Canadian Human Rights Act, RSC 1985, c. H-6, applies to federally regulated enterprises. The Respondents say that under s. 92(10)(a) of the Constitution Act, 1867, transportation works and undertakings that extend beyond provincial boundaries fall within federal jurisdiction, for example, interprovincial or international trucking companies: Soler v. Luckhart Transport Ltd., 2009 HRTO 1486 (CanLII).
 The Respondents say that Labour Canada has determined that federal labour legislation applies to Clover Towing because “it is engaged in interprovincial road transportation, which is an activity that falls under federal jurisdiction pursuant to section 2 of the Canada Labour Code.” The Respondents have attached Labour Canada’s determination. The Respondents say Clover’s operations include over 50 trucks that haul anything from motorcycles to dump trucks and heavy equipment. The Respondents say that Clover’s trucks cross provincial and international borders in the course of their operations.
 The Respondents also say that the Complainant has availed herself of remedies under the Canada Labour Code in her dispute with the employer. They have attached a July 18, 2016 letter from Labour Canada. The Respondents say Clover paid the amount determined by the Labour Canada inspector. The Respondents have attached a copy of the cheque issued to the Complainant as a result of the inspector’s order.
 The Respondents assert they are under federal jurisdiction and the Complainant must avail herself of remedies under the Canadian Human Rights Act.
- b) The Complainant’s Response
 On October 7, 2016, the Complainant provided her response to the Respondents’ dismissal application. She said as follows:
I have checked the federal wed site you provided me, (I was unaware there was a federal Human Rights agency I thought I had been dealing with the only human rights authority all along, until you notified me otherwise), about 2 & 1/2 weeks ago). That wed site, has a Q&A you must go through in order to submit a complaint, to even print a blank application. They have lists of companies that fall under their jurisdiction and you “must” select the company in order to proceed, Clover Towing is not in that list identified as Federal. So my question is, what proof do we have that they are Federal, and is it under a different name? Also will this complaint be forwarded to them to show that I have been trying to pursue this for the last 10 months, and the delay is through no fault of mine. Please advise me ASAP, I have been waiting for a reply for over 2 weeks since I was notified the mediation would not go forward October 21st. And I have sent numerous complaints and they only keep getting bounced back to go to other authorities, who send me to someone else. . I keep getting referred after spending hours and months on this, maybe that’s the point, they hope I will get frustrated, which I am, and give up and they again, get away with it. I intend to go forward with this either provincial or federal. Please advise asap
(reproduced as written)
 On October 12, 2016, The Tribunal responded to the Complainant’s October 7, 2016 submission. The Tribunal said:
Currently, the Tribunal has asked for submission from you with regards to Respondent’s claim that Clover Towing Ltd. falls under Federal Jurisdiction. You have until October 14, 2016 to provide your view on the jurisdiction of the complaint.
With regards to your question about what proof does the Respondent have that they are federal, I have attached the documents that the Respondents provided to the Tribunal when they made the request regarding jurisdiction.
The BC Human Rights Tribunal is not affiliated with Canadian Human Rights Commission and hence we cannot forward your complaint to them. The Canadian Human Rights Commission has their own complaint process. Given that the Canadian Human Rights Commission has a one year time limit and you were not able to find the name of the Clover Towing Ltd. in their list, you may want to call 1-888-214-1090 or TTY 1-888-643-3304 to talk to a human rights officer at the Commission.
 Nothing further was received from the Complainant.
- c) The Respondents’ Reply
 On October 12, 2016, the Respondents filed their reply. The Respondents say they continue to rely on the submissions made and documents provided to the Tribunal on August 18, 2016. The Respondents also add that Clover Towing Ltd. is required by Labour Canada to file a mandatory Annual Hazardous Occurrence Report. The Respondents have attached a copy of the 2015 report.
 The law requires me to apply a functional test to determine whether an entity is a federal work or undertaking: NIL/TU,O Child and Family Services Society v. B.C. Government and Service Employees’ Union, 2010 SCC 45 (CanLII).
 As noted in Soler:
Issues of constitutional jurisdiction are not self-evident, and indeed, the situation is made more complex by the fact that a company may be covered by some federal laws for some purposes, but by other provincial laws for other purposes.
 The federal government has not always chosen to legislate in all areas related to federal works or undertakings. For example, provincial workers’ compensation legislation applies to private sector federal works or undertakings. The federal government has chosen to legislate with respect to its own government employees in the area of workers’ compensation, but only minimally in order to place them under the jurisdiction of provincial workers’ compensation boards: Government Employees Compensation Act, R.S.C. 1985, c. G-5.
 In British Columbia, workplace safety is also governed by the British Columbia Workers Compensation Act. However, because the federal government has chosen to legislate workplace safety under Part II of the Canada Labour Code, those portions of the BC Workers Compensation Act which address the same subject matter do not apply to federal works or undertakings: Alltrans Express Ltd. v. British Columbia (Workers’ Compensation Board), 1988 CanLII 83 (SCC),  1 SCR 897. That explains why Clover Towing must report hazardous occurrences to Labour Canada.
 Similarly, because the federal government has chosen to legislate employment standards under Part III of the Canada Labour Code, the BC Employment Standards Act does not apply to federal works or undertakings. That explains why the Complainant had her severance and vacation pay issues addressed by Labour Canada.
 Finally, because the federal government has chosen to legislate in the area of labour relations under the Canada Labour Code, the British Columbia Labour Relations Code does not apply to federal works or undertakings.
 The same holds true for human rights. Because the federal government has chosen to legislate in the field of human rights in respect of federal works or undertakings, provincial human rights codes, including the BC Code, do not apply to federal works or undertakings.
 Again, as noted in Soler:
The Code only applies to matters that fall within provincial, rather than federal, jurisdiction. Pursuant to subsection 92(10) (a) of the Constitution Act, 1867, (U.K.), 30 & 31 Victoria, c. 3, (the “Constitution”), transportation works and undertakings that extend beyond the limits of the province are within federal jurisdiction.
 The key question in this case is whether Clover Towing Ltd. is a federal work or undertaking. The Ontario Tribunal noted in Soler:
The jurisdiction in which a company is incorporated does not determine the issue of whether the Code applies. It may be that the company was not incorporated under federal corporation law, but provincial. However, it is clear from the Bernshine decision (as well as others) that even companies incorporated under provincial law can be subject to federal human rights or labour laws, depending on the nature of the business. The Supreme Court of Canada has stated that it is the “reality of the situation” and not the “commercial costume worn” by the entities involved that determines the question of constitutional jurisdiction (Alberta Government Telephones v. Canadian Radio-television and Telecommunications Commission, 1989 CanLII 78 (SCC),  2 S.C.R. 225.)
(para. 9, emphasis added)
 That, of course, reflects the functional test required by the Supreme Court of Canada.
 The Respondents, in this case, have asserted that Clover Towing Ltd. crosses provincial and international boundaries in the course of its operations. They have asserted that it is therefore a federal work or undertaking. The Complainant does not dispute this assertion. Indeed, the Complainant’s correspondence suggests that she had always been under the impression that the Respondent Clover Towing Ltd. was federal, but she simply could not find the correct agency to which to direct her complaints.
 I find that, functionally, Clover Towing Ltd. is similar to what the Ontario Tribunal considered in Soler:
In this Application, the affidavit submitted by the president of Luckhart Transportation states that the company specializes in long-distance trucking, transporting livestock and dry van freight across Canada, the United States and Mexico. Its drivers regularly cross provincial borders. The work performed by the applicant is similar to the work that the courts in the Bernshine and Highway decisions found to be covered by federal labour laws.
 While, in this case, the Respondents have not provided affidavit evidence to substantiate their assertion, the lack of an affidavit cannot cloak the Tribunal with jurisdiction. I am content to rely on representations made by Respondents’ counsel, particularly when the Complainant has not disputed them.
 Further, the Respondents have provided information illustrating that Labour Canada has determined that, for the purposes of the Canada Labour Code, Part II, (Occupational Health and Safety), Clover Towing Ltd. is a federal work or undertaking. That determination was made in 2009. This is reinforced by the Respondents having to file a mandatory Annual Hazardous Occurrence Report with Labour Canada, the agency charged with administering the Canada Labour Code.
 The Respondents have also provided information that Labour Canada addressed the Complainant’s complaints concerning vacation and severance pay under Part III (Labour Standards) of the Canada Labour Code.
 Well I am not bound by these determinations, I do find them highly persuasive and reinforce my conclusions based on applying the functional test. Consistency is a desirable outcome in these circumstances.
 Having reviewed all of the submissions I find that the Respondent Clover Towing Ltd. is a federal work or undertaking and that the Tribunal is without jurisdiction to entertain this complaint. As pointed out in Soler:
The courts have confirmed that the work of maintaining and washing trucks used in interprovincial transportation falls under federal jurisdiction for labour relations purposes (Bernshine Mobile Maintenance Ltd. v. Canada (Labour Relations Board),  F.C.J. No. 181 (F.C.A.) and Highway Truck Service Ltd. v. Canada (Labour Relations Board),  F.C.J. No. 908 (F.C.A.)).
 The Complainant must take her human rights issues to the Canadian Human Rights Commission under the Canadian Human Rights Act. The Complainant may wish to provide the Commission with a copy of this decision in support of her assertion that she has been trying for some time to advance her human rights complaint against the Respondents.
 In the result, I find that the Tribunal has no jurisdiction to entertain this complaint. I therefore allow the Dismissal Application under s. 27(1)(a) of the Code and hereby dismiss the complaint.