BC Human Rights Tribunal

Morrison v. GardaWorld Cash Services Canada Corporation and others, 2024 BCHRT 257

Date Issued: September 6, 2024
File: CS-005041

Indexed as: Morrison v. GardaWorld Cash Services Canada Corporation and others, 2024 BCHRT 257

IN THE MATTER OF THE HUMAN RIGHTS CODE,
RSBC 1996, c. 210 (as amended)

AND IN THE MATTER of a complaint before
the British Columbia Human Rights Tribunal

BETWEEN:

Shaun Morrison
COMPLAINANT

AND:

GardaWorld Cash Services Canada Corporation and Andrew (Ronald) Hayes and
Keith Desnoyers and Unifor Local 114 and Mark Misic and Mark Cameron
RESPONDENTS

REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(a)

Tribunal Member: Robin Dean

For the Complainant: No submissions

Counsel for the Respondents GardaWorld Cash Services Canada Corporation and Andrew (Ronald) Hayes and Keith Desnoyers: Genevieve Lamarre

Agent for Respondents Unifor Local 114 and Mark Misic and Mark Cameron: Jennifer Moreau

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I INTRODUCTION

[1] The Respondents have filed two applications to dismiss Shaun Morrison’s complaint under s. 27(1)(a) of the Human Rights Code , challenging the Tribunal’s jurisdiction over the complaint. The Respondents GardaWorld Cash Services Canada Corporation, Andrew (Ronald) Hayes, and Keith Desnoyers [GardaWorld Respondents] have filed one application to dismiss while the Respondents Unifor Local 114, Mark Misic, and Mark Cameron [Unifor Respondents] have filed the other application to dismiss.

[2] The applications to dismiss argue the same grounds, namely that Mr. Morrison, who brings his complaint based on s. 13 of the Code, worked for a federally-regulated employer during the events that gave rise to the complaint. Both applications to dismiss rely on the same evidence: an order of the Canada Industrial Relations Board [CIRB] certifying Unifor as the bargaining agent of all GardaWorld Cash Services Canada Corporation employees.

[3] Mr. Morrison did not file a response to the applications to dismiss.

[4] Section 27(1)(a) permits the Tribunal to dismiss all or part of a complaint that is not within its jurisdiction. However, there must be “sufficient foundational facts” and a “clear legal question” for the Tribunal to determine its jurisdiction at a preliminary stage: HTMQ v. McGrath , 2009 BCSC 180 at para. 64. The Tribunal may defer a decision about its jurisdiction when additional evidence or factual inquiry is necessary for it to make that decision.

[5] Here, relying on the CIRB order alone is insufficient to show that the Tribunal lacks jurisdiction over Mr. Morrison’s complaint. Further evidence, information, and argument are needed. Additionally, the Respondents must file a notice of constitutional question on the Attorneys General of Canada and British Columbia before the Tribunal can decide this jurisdictional question. I deny the Respondents’ applications to dismiss.

II BACKGROUND

[6] The information provided by the parties in their applications to dismiss was limited. However, I have taken the following background from the parties’ submissions. I make no findings of fact.

[7] The GardaWorld Respondents say that Mr. Morrison was employed by GardaWorld as an armed guard at its Nanaimo branch. The GardaWorld Respondents say that GardaWorld is a “duly incorporated Canadian corporation that offers interprovincial transportation services for cash and other valuable assets, as well as offering end-to-end cash services solutions.” They say that GardaWorld armoured trucks cross provincial borders daily. According to GardaWorld, this interprovincial transportation “lies at the core of GardaWorld’s activities” and is “essential” to Gardaworld’s operations.

[8] According to the GardaWorld Respondents, Mr. Morrison was a member of the bargaining unit described in the CIRB order as follows:

all employees of GardaWorld Cash Services Canada Corporation working at and from 301-4300 Wellington Road, Nanaimo, British Columbia, 82 Shamrock Place, Comox British Columbia, and/or Powell River, British Columbia, excluding office and sales staff, supervisors and those above the rank of supervisor.

[emphasis in original]

[9] The CIRB order also identifies Unifor as the bargaining agent for all GardaWorld employees identified as belonging to the bargaining unit. The Unifor Respondents say that Mr. Morrison was a member of Unifor Local 114 during his employment at GardaWorld.

III DECISION

[10] Mr. Morrison alleges that he was discriminated against in employment based on a mental disability. This case therefore involves a part of the Code that touches on labour relations. Labour relations, including human rights regarding employment, are presumptively provincial under the division of powers set out in the Constitution Act, 1867as a matter of property and civil rights: Andrew v. Prism Sulphur Corporation,2003 BCHRT 51 at para. 16; NIL/TU,O Child and Family Services Society v. B.C. Government and Service Employees’ Union, 2010 SCC 45 at para. 11. Federal regulation of labour relations is the exception and arises when a particular entity is a “federal work, undertaking, or business”: NIL/TU,Oat para. 11-12.

[11] In determining whether a particular entity is a federal work, undertaking, or business, courts and tribunals apply a “functional test”, examining the nature, operations and habitual activities of the entity to see if it is a federal undertaking: NIL/TU,Oat para. 14 & 18. If the functional test is inconclusive as to whether a particular undertaking is “federal”, a court or tribunal should then consider whether provincial regulation of labour relations would impair the “core” of whatever federal regulation governed the entity: NIL/TU,O at para. 18.

[12] Where the entity itself is not a federal work, undertaking, or business, the entity will nevertheless be federally regulated if it is an integral part of a federally regulated undertaking: Stevedores Reference, 1955 CanLII 1 (SCC), [1955] S.C.R 529. Sometimes this is referred to as derivative jurisdiction: Tessier Ltée v. Quebec (Commission de la santé et de la sécurité du travail) , 2012 SCC 23 at para. 17. In either case – direct or derivative jurisdiction – the task is to examine the entity’s essential operational nature: Tessier at para. 18.

[13] A company may engage in more than one undertaking for constitutional purposes. In such a case, a company may be subject to dual legislative authority because it has multiple operations:Dodson v. OPDI Logistics and Ontario Potato Dist. (Alliston) Inc. 1991, 2014 HRTO 1042 at para. 21. GardaWorld appears from the submissions I have before me to be a company with a variety of services. Just because some of the work that GardaWorld does involves interprovincial transportation does not mean that all GardaWorld’s undertakings fall under federal jurisdiction.

[14] To establish direct jurisdiction, the Respondents must explain how the employment in question – i.e. armed security at a local cash services branch – relates to a work, undertaking or enterprise within the legislative authority of Parliament. If there is no direct jurisdiction, then the Respondents must explain how the work performed is an integral part of a federally-regulated undertaking. There is little information from which I could examine this portion of GardaWorld’s activities to determine their essential operational nature. The GardaWorld Respondents do not explain what occurs at their Nanaimo branch nor how the activities at the Nanaimo branch fit into GardaWorld’s overall corporate structure and scheme. Further, they do not explain how Mr. Morrison’s work as an armed guard supported the interprovincial trucking aspect of its business. While the Respondents provided the CIRB order, this alone is not determinative of the jurisdictional issue before me: NIL/TU,O.

[15] In light of the lack of evidence and argument, I am unable to conclude that working security at a cash services branch is interprovincial in nature, nor am I able to conclude that Mr. Morrison’s duties were so integral to the transportation of cash between provinces so as to bring his complaint under exceptional federal jurisdiction. This is so even though some portion of GardaWorld’s services include interprovincial transportation.

IV CONCLUSION

[16] Respondents arguing that the Tribunal lacks jurisdiction on the basis that they are federally regulated must provide the Tribunal with sufficient evidence to engage in the constitutional analysis that is required under NIL/TU,O. This is a highly fact specific and often complex undertaking. Respondents must explain why they are either federally regulated or so integral to a federally regulated entity so as to come under federal jurisdiction. The applications here raise more questions than answers. Because the Respondents failed to provide the Tribunal with sufficient evidence and argument to decide the issue before it, I deny the applications to dismiss.

[17] It is open to the Respondents at a hearing of this matter to adduce the kind of evidence needed to demonstrate that they are federally regulated; however, should the Respondents wish to raise the issue of jurisdiction at a hearing, they must first give the Attorneys General of Canada and British Columbia notice of the constitutional question. [1]

Robin Dean

Tribunal Member

Human Rights Tribunal