Ram v. Ministry of Health and others, 2025 BCHRT 202
Date Issued: August 19, 2025
File: CS-007653
Indexed as: Ram v. Ministry of Health and others, 2025 BCHRT 202
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:
Manisha Ram
COMPLAINANT
AND:
His Majesty the King as represented by the Ministry of Health, University of British Columbia, The Association of Faculties of Medicine of Canada, Canadian Resident Matching Service and College of Physicians, and Surgeons of British Columbia
RESPONDENTS
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(a)
Tribunal Member: Devyn Cousineau
Counsel for the Complainant: Clea Parfitt
Counsel for the Canadian Resident Matching Service: Michael Schalke and Elizabeth Lotfali
I INTRODUCTION
[1] Manisha Ram is a Canadian citizen who attended medical school in Grenada. To become a doctor in Canada, she is required to complete a residency program. Because Ms. Ram attended medical school outside the Canada or the US, and completed some post-graduate training in the US, she was ineligible for most of the available positions and did not secure a residency. In this human rights complaint, she alleges that the system for allocating residency positions in BC discriminates against her based on her place of origin and mental disability, in violation of ss. 8 and 13 of the Human Rights Code.
[2] Ms. Ram brings her complaint against five entities which she alleges are collectively responsible for the system for licensing doctors who have graduated from medical schools outside Canada or the US. This application only relates to her complaint against Canadian Resident Matching Services [CaRMS].
[3] CaRMS is a non-profit corporation which is contracted to operate a computerized process to match residency candidates with residency positions across Canada. It says that its operation is a federal undertaking and, as such, outside the jurisdiction of the BC Human Rights Tribunal. Alternatively, it argues that Ms. Ram’s complaint against it is insufficiently connected to BC. It asks the Tribunal to dismiss the complaint because it does not have jurisdiction: Code, s. 27(1)(a).
[4] For the following reasons, I conclude that CaRMS is a federal undertaking. As a result, the BC Human Rights Tribunal does not have jurisdiction over the complaint against CaRMS and it is dismissed under s. 27(1)(a) of the Code.
II DECISION
[5] The first issue I must address is the applicable analytic framework. Both parties appear to agree that the analysis articulated in NIL/TU,O Child and Family Services Society v. B.C. Government and Service Employees’ Union, 2010 SCC 45, applies. However, Ms. Ram also made submissions about Stefanishion v. Princess Resort and others, 2024 BCHRT 97, where the Tribunal held that the NIL/TU,O analysis does not apply outside the context of labour relations. For the following reasons, I respectfully decline to follow Stefanishion on this point. In cases where the respondent to a human rights complaint argues they are a federal undertaking, the NIL/TU,O analysis applies. It is determinative of the jurisdictional issue in this case.
A. NIL/TU,O analysis applies outside labour relations
[6] In NIL/TU,O, the Supreme Court of Canada considered whether the province had jurisdiction over the labour relations of a First Nations society providing child welfare services in BC. In doing so, it clarified the analytic framework to determine jurisdiction over labour relations on federalism grounds.
[7] As a starting point, the Court noted that “labour relations are presumptively a provincial matter, and that the federal government has jurisdiction over labour relations only by way of exception”: para. 11. Exceptions are narrowly interpreted. The question is “whether a particular entity is a ‘federal work, undertaking or business’ for purposes of triggering the jurisdiction of the Canada Labour Code”: para. 12.
[8] To determine whether an entity is a federal undertaking, the first step is to apply the “functional test”. This test examines “the nature, operations and habitual activities of the entity” to see if it constitutes a federal undertaking: paras. 3, 18. If it does, then it is under federal and not provincial jurisdiction. If the inquiry is inconclusive, then the analysis proceeds to a second step, which considers “whether provincial regulation of the entity’s labour relations would impair the core of the federal head of power at issue”: para. 18 (emphasis in original).
[9] Since NIL/TU,O, human rights bodies have applied its analysis to determine jurisdiction in complaints alleging discrimination in services, where the issue is whether the respondent is a federal undertaking: e.g. Ethier v. Greater Victoria Harbour Authority, 2024 BCHRT 260 (leasing moorage); Hutcheson v. Patreon Inc., 2024 HRTO 1188 (online platform); Cristiano v. PDLES-Professional Development and Legal Education Society, 2022 HRTO 812 (online education services); Roy v. Gander Flight Training, 2023 CanLII 52009 (NL HRC) (flight training services); Papouchine v. Best Buy Canada, 2018 FC 1236 at para. 18 (internet commerce). This has been done largely without comment, though the rationale was explained briefly in D.L. v. BC Ministry of Children and Family Development and others (No. 3), 2021 BCHRT 35:
… both human rights and labour relations fall within the jurisdiction of the provinces to regulate matters of “civil rights”. Like labour relations, federal jurisdiction over human rights issues is the exception, in circumstances where the complaint arises in an area coming within the legislative authority of Parliament. [para. 12]
[10] In Stefanishion, the Tribunal Member took a different approach. In that case, the issue was whether the Tribunal had jurisdiction over a complaint that the Westbank First Nation had discriminated in its enforcement of the Nation’s animal control law. The Member held that the functional test did not apply to discrimination complaints outside the context of labour relations. Rather, the Member indicated that the jurisdictional issue in that case may be resolved through the constitutional doctrines of pith and substance, federal paramountcy, and/or interjurisdictional immunity: see paras. 45-53.
[11] With respect, I disagree with the Member’s reasoning in Stefanishion and decline to follow it. In my view, the NIL/TU,O analysis does apply to determine the Tribunal’s jurisdiction over entities which claim to be federal undertakings, regardless of the subject matter of the complaint. Other constitutional doctrines may arise in cases challenging the validity or application of the Code on federalism grounds: NIL/TU’O at para. 12; see e.g. Chilliwack Teachers’ Association v. Neufeld (No.3), 2024 BCHRT 232 [Neufeld].
[12] I start where the Court started in NIL/TU,O. In human rights, as in labour relations, provincial regulation is the rule and federal regulation the exception: Andrew v. Prism Sulphur Corporation, 2003 BCHRT 51 at para. 16. The exception arises where a complaint falls within the “purview of matters coming within the legislative authority of Parliament”: Canadian Human Rights Act,s. 2.
[13] Thus, in human rights, an adjudicator may be asked to determine whether a respondent comes “within the legislative authority of Parliament”, just as an adjudicator may be asked in the labour relations context to determine whether a respondent is a “‘federal work, undertaking or business”. In both cases, the question is not whether a particular statute is intra or ultra vires the constitutional authority of the enabling government. Rather, in both cases the narrow question is whether the respondent entity triggers the jurisdiction of the relevant adjudicator. In both cases, the adjudicator must look at the nature of the respondent’s operations to determine whether it constitutes a federal undertaking. This requires an examination of the nature, operations and habitual activities of the respondent entity. In my view, there is no meaningful distinction between performing this task to determine whether the entity constitutes a federal undertaking for the purposes of labour relations or a federal undertaking for the purpose of human rights. Though the functional test was designed to answer this question in the labour relations context, the question is the same in the human rights context. The same test ought to apply.
[14] In Stefanishion, the Member reasoned that there is a distinction to be made between labour relations and human rights, because labour relations were presumptively provincial under s. 92(10) of the Constitution Act, 1867 (“Local Works and Undertakings”), while human rights jurisdiction was grounded in s. 92(13) (“Property and Civil Rights”): para. 38. Respectfully, this is a misreading of NIL/TU,O and a misunderstanding of the division of powers over labour relations and human rights.
[15] Neither “labour relations” nor “human rights” are explicitly allocated between the provincial and the federal governments in the Constitution Act, 1867: NIL/TU’O at para. 11. Rather, they are generally accepted to fall under ss. 92(13) and s. 92(16). In Quebec (Attorney General) v. Picard, 2020 FCA 74, the Federal Court of Appeal explained:
The power to legislate in matters of labour relations was not explicitly provided for in the [Constitution Act], 1867. Nevertheless, it has been accepted for nearly a century now that labour law falls primarily under subsections 92(13) (“Property and Civil Rights in the Province”) and 92(16) (“Matters of a merely local or private Nature in the Province”). [para. 23]
This is the same constitutional foundation that applies to the other activities regulated by human rights legislation. In Scowby v. Glendenning, [1986] 2 SCR 226, the Court explained:
Let it be said at once that one does not approach a provincial human rights code on the basis that it is constitutionally presumptively suspect. The great bulk of the protections granted by such codes would appear to be beyond challenge as being legislation in relation to property and civil rights, or to matters of merely local or private nature. They deal, for example, with questions of discrimination in housing and employment, and equal access to goods and services. These legislative protections are valid not because they affirm interests such as liberty, or human dignity, but because the activities legislated, that is for example housing, employment, and education, are themselves legitimate areas of provincial concern under ss. 92 and 93. [para. 4, emphasis added]
[16] Contrary to the reasoning in Stefanision, s. 92(10) (“Local Works and Undertakings”) is not the exclusive or unique constitutional source of authority relating to labour relations. The Court’s analysis in NIL/TU,O and the cases that preceded it, did not turn on considerations relating to s. 92(10). That provision only arose in the Court’s discussion of a case where s. 92(10)(a) was the source of the federal government’s authority over a telecommunications company: para. 13, discussing Northern Telecom Ltd. v. Communications Workers of Canada, [1980] 1 SCR 115. This is not a basis to distinguish regulation of labour relations from other activities regulated by the Code.
[17] In cases where the respondent argues they are a federal undertaking, the issue is not the constitutional validity of the Code. Rather, it is whether the respondent is a federal undertaking so as to fall outside presumptive provincial jurisdiction over human rights. This is the question that the NIL TU,O analysis was designed to answer. That is the analysis I apply in this case.
B. Application of the NIL/TU,O analysis in this case
[18] As I have said, the first step of the NIL/TU,O analysis is to apply a “functional test”. This examines the “nature, operations, and habitual activities of the entity to see if it is a federal undertaking”: NIL/U,O, at para. 3. If CaRMS is a federal undertaking, then it falls under federal and not provincial jurisdiction.
[19] The relevant facts are undisputed, and were also described by the BC Supreme Court in The Society for Canadians Studying Medicine Abroad v. The College of Physicians and Surgeons of British Columbia, 2024 BCSC 406 at paras. 24-26.
[20] CaRMS is a not-for profit corporation incorporated under the Canadian Corporations Act and continued under the Canada Not-for-profit Corporations Act. It operates a centralized, national residency application and matching program for medical school graduates applying for residency training at medical schools across Canada [Program]. It does this through an online program which applies an algorithm to match applicants to available residency positions based on rankings made by the applicants and the residency program. Medical faculties from across Canada input information about their available positions and selection criteria. Applicants transmit their application materials to their selected residency programs through CaRMS’ online service, and the program reviews these materials through CaRMS’ online portal.
[21] Following interviews, the faculties and the applicants each use CaRMS’ online service to rank their respective selections. The CaRMS algorithm then matches applicants to an available residency program in Canada. During the period when Ms. Ram applied for residency programs, there were 17 medical faculties across Canada and between 4,500-5,000 applicants per year.
[22] To run its matching program, CaRMS follows eligibility requirements and rules set by applicable authorities for medical residency training in each province. The rule that Ms. Ram alleges is discriminatory is found across Canada and implemented by CaRMS in its online platform.
[23] CaRMS argues that its normal and habitual activities is “interprovincial communication, providing an information and decision-making platform that operates over the Internet, connecting Applicants and Residency Programs and vice versa”. It says these activities fall under federal jurisdiction over:
Lines of Steam or other Ships, Railways, Canals, Telegraphs, and other Works and Undertakings connecting the Province with any other or others of the Provinces, or extending beyond the Limits of the Province
Constitution Act, 1867, s. 92(10)(a) (emphasis added)
[24] Ms. Ram characterises CaRMS’ operations differently. In the context of this case, she argues that it is the “means by which the Faculty of Medicine and the Province of British Columbia Ministry of Health select candidates for residency positions in the province.” She argues that this case only relates to its role in allocating residency positions in BC, and so the actions at issue do not extend beyond provincial borders. Within the province, she argues that CaRMS’ habitual activities are akin to an employment or educational placement service.
[25] I am satisfied that CaRMS’ nature, operations, and habitual activities extend beyond the limits of any one province, facilitating inter-provincial communication for the purpose of allocating residency positions across the country. This is a federal undertaking under s. 92(10)(a) of the Constitution Act, 1867.
[26] I do not accept Ms. Ram’s argument that it is possible to assume jurisdiction because her complaint only relates to her application for residency within BC. The allegations in her complaint do not define the nature, operations, and habitual activities of CaRMS. By analogy, a complaint alleging discrimination by an interprovincial trucking company does not fall within provincial jurisdiction just because all the alleged facts arose in BC: see e.g. Jeffers v. Angel Tours & Entertainment Inc, 2020 HRTO 164; Altakla v. Power and another (No. 2), 2004 BCHRT 148.
[27] The circumstances here are more akin to internet service providers whose functions cross provincial and international lines. For example, the Human Rights Tribunal of Ontario has consistently held that Facebook is a federal undertaking. Most recently, it described Facebook’s business as “to provide an online social media platform with not just inter-provincial but global scope”: Trudel v. Meta Platforms Inc, 2024 HRTO 1587 at para. 9. (This is distinguished from cases where a provincial human rights body has jurisdiction over a complaint about conduct on Facebook, because the respondent is not a federally regulated entity: e.g. Neufeld at para. 58.)
[28] Another recent example is Hutcheson v. Patreon, 2024 HRTO 1188, where the Tribunal described Patreon’s function as offering an online platform to connect content creators with fans, facilitating communications that “are global and cross provincial and national borders”: para. 14. Likewise, here, CaRMS’ function is to provide an online program to connect applicants from around the world with residency positions across the country.
[29] I agree with Ms. Ram that the medium – an online platform – is not determinative of the analysis. CaRMS does not argue otherwise. Rather, it is that CaRMS’ core function – matching applicants with residency positions across the country – extends beyond the limits of any one province and connects the provinces. This is a federal undertaking.
[30] I distinguish Cristiano v. PDLES, 2022 HRTO 812, a case relied on by Ms. Ram. There,the Ontario Human Rights Tribunal found that the normal, habitual, and daily operations of the respondent – an online college – were to provide education services. When delivered in Ontario, this fell within provincial jurisdiction. In contrast here, CaRMS’ core function is to match applicants with positions across Canada. This is an inherently interprovincial undertaking.
[31] Finally, I am not persuaded by Ms. Ram’s submissions that the Tribunal should assume jurisdiction over CaRMS to ensure the remedial purposes of the Code are fulfilled. Constitutional jurisdiction is not determined by the purposes or quasi-constitutional status of human rights legislation. In any event, it appears unlikely that dismissing the complaint against CaRMS will impact the remedy in this case, should the complaint succeed. The Court made this point in Society for Canadians Studying Medicine Abroad, explaining that striking the claim against CaRMS would not “affect the petitioner’s ability to challenge the two-stream system or the requirement for a Return of Service agreement on constitutional grounds”: at para. 87.
III CONCLUSION
[32] CaRMS is a federal undertaking, whose function is to facilitate inter-provincial communication for the purpose of allocating residency positions across the country. As a result, the BC Human Rights Tribunal does not have jurisdiction over the complaint against CaRMS, and it is dismissed under s. 27(1)(a).
Devyn Cousineau
Vice Chair