Date Issued: September 6, 2024

File: CS-005041

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

2024 BCHRT 257 (CanLII)

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 Genevieve Lamarre

Cash Services Canada Corporation and
 Andrew (Ronald) Hayes and
Keith Desnoyers:

Agent for Respondents Unifor Local 114 and Jennifer Moreau

Mark Misic and Mark Cameron:

2024 BCHRT 257 (CanLII)

I INTRODUCTION

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.

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.

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

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.

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

1
Attorneys General of Canada and British Columbia before the Tribunal can decide this
jurisdictional question. I deny the Respondents’ applications to dismiss.

II BACKGROUND

2024 BCHRT 257 (CanLII)

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.

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.

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]

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.

2
III DECISION

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

2024 BCHRT 257 (CanLII)

relations. Labour relations, including human rights regarding employment, are presumptively
provincial under the division of powers set out in the Constitution Act, 1867 as 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,O at para.
11-12.

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,O at 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.

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.

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

3
interprovincial transportation does not mean that all GardaWorld’s undertakings fall under
federal jurisdiction.

To establish direct jurisdiction, the Respondents must explain how the employment in

2024 BCHRT 257 (CanLII)

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.

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

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.

4
 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

2024 BCHRT 257 (CanLII)

Robin Dean
Tribunal Member
Human Rights Tribunal

1
It does not appear that the Respondents provided notice to the Attorneys General on the jurisdictional question
raised in these applications. It ought to have. However, since I have not decided the jurisdictional issue, l do not
find this defect fatal.