Carnes v. Trans Mountain Canada Ltd. and others, 2025 BCHRT 243
Date Issued: October 15, 2025
File: CS-009179
Indexed as: Carnes v. Trans Mountain Canada Ltd. and others, 2025 BCHRT 243
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:
Lindsay Carnes
COMPLAINANT
AND:
Trans Mountain Canada Ltd. and Trans Mountain Pipeline ULC and Trans Mountain Corporation and Adecco Employment Services Ltd dba Roevin
RESPONDENTS
REASONS FOR DECISION
JURISDICTION
Section 27(1)(a)
Tribunal Member: Devyn Cousineau
Counsel for the Complainant: Ian Kennedy
Counsel for Trans Mountain: Emily MacKinnon
Counsel for Adecco Employment Services: Paul S. Schwartzman
I INTRODUCTION
[1] This decision is about whether the Tribunal has jurisdiction over a complaint against Trans Mountain Ltd., Trans Mountain Pipeline ULC and Trans Mountain Corporation [collectively, Trans Mountain].[1]
[2] Lindsay Carnes contracted with Adecco Employment Services Ltd dba as Roevin [Roevin] to work for Trans Mountain in British Columbia. She alleges that Roevin and Trans Mountain discriminated against her in employment based on her sex when Trans Mountain changed her job duties after a maternity leave and failed to accommodate her need to pump breastmilk. The Tribunal accepted the complaint against Roevin but initially rejected the complaint against Trans Mountain, on the basis that it was subject to federal jurisdiction. At Ms. Carnes’ request, the Tribunal reconsidered that decision and has invited submissions from the parties about whether the Tribunal has jurisdiction over the complaint against Trans Mountain. As required by the Constitutional Question Act and Rule 28.1, Trans Mountain gave notice to the Attorney Generals of Canada and BC, both of whom declined to participate.
[3] There is no dispute that Trans Mountain is a federal undertaking: see e.g. Reference v. Environmental Management Act (British Columbia), 2019 BCCA 181 at para. 101. On this basis, Trans Mountain argues that the Tribunal does not have jurisdiction and should dismiss the allegations against it under s. 27(1)(a) of the Human Rights Code. Ms. Carnes argues that the Tribunal’s jurisdiction is engaged by her allegation that she was employed by Roevin, which she says is a provincially regulated employer. She argues that, regardless of whether Trans Mountain is a federal undertaking, the Tribunal has jurisdiction to determine whether it discriminated against her regarding her employment with Roevin: Pontes v. Commissionaires British Columbia, 2005 BCHRT 356 at para. 18.
[4] For the following reasons, I conclude that the Tribunal does not have jurisdiction over the complaint against Trans Mountain. It is dismissed.
II DECISION
[5] This Tribunal presumptively has jurisdiction to adjudicate human rights complaints in BC. Constitutionally, this jurisdiction is grounded in s. 92(13) of the Constitution Act, 1867, which grants the provinces jurisdiction over “property and civil rights”: Azak v. Nisga’a Nation and others, 2003 BCHRT 79 at para. 23. There is an exception to this jurisdiction where a complaint arises in respect of a matter “coming within the legislative authority of Parliament” for the purpose of triggering the jurisdiction of the Canadian Human Rights Act,s. 2; NIL/TU,O Child and Family Services Society v. B.C. Government and Service Employees’ Union,2010 SCC 45 at para. 12.
[6] There is no dispute that Trans Mountain is a federal undertaking. It owns and operates an interprovincial and international pipeline system. Under Canada’s constitutional framework, it falls under federal jurisdiction over “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). In NIL/TU,O, the Supreme Court of Canada confirmed the long-standing principle that the labour relations of a federal undertaking fall under federal, and not provincial, jurisdiction: para 12. The same principle applies to the employment obligations of a federal undertaking under human rights legislation: see e.g. Scharfe v. Clover Towing, 2016 BCHRT 177 at para. 26.
[7] Ms. Carnes asks the Tribunal to define its jurisdiction not by the identity of the respondent Trans Mountain, but by the identity of the respondent Roevin. She argues that the Tribunal’s jurisdiction is engaged because she was employed by Roevin, which she says is provincially regulated. She invokes the Supreme Court of Canada’s reasoning in Schrenk to argue that the Tribunal has jurisdiction to determine whether Trans Mountain discriminated against her – not because it is her employer but because it is a “person” which has discriminated against her “regarding” her employment with Roevin: British Columbia Human Rights Tribunal v. Schrenk, 2017 SCC 62 at paras. 3 and 36.
[8] In support of this argument, Ms. Carnes relies on the Tribunal’s 2005 decision in Pontes. Ms. Pontes was employed by the Commissionaires as a cashier working at a parking lot at Vancouver International Airport [YVR]. The Commissionaires fired her based on a YVR policy, which Ms. Pontes alleged was discriminatory. She brought a complaint against the Commissionaires and YVR. The respondents asked the Tribunal to dismiss the complaint because it fell under federal jurisdiction over aeronautics. The issue turned on whether the Commissionaire’s work in operating a parking lot at YVR was “a vital, essential or integral part of the core federal undertaking”: para. 10. The Tribunal concluded that it was not, and so the complaint was within provincial jurisdiction.
[9] For the purpose of this application, the important part of Pontes is a sentence found in its concluding paragraph:
For these reasons, I have determined that Ms. Pontes’ employment relationship with the Commissionaires is under provincial jurisdiction and therefore subject to the Code. As I already pointed out, Ms. Pontes does not allege that YVR or Ms. Walker were her employer; rather, her allegation against them is that they discriminated against her in relation to her employment with the Commissionaires. Third parties to employment relationships may be liable for discrimination… Assuming YVR is under federal jurisdiction with respect to its own employment relationships, both it and its employee remain answerable before the Tribunal to allegations that they discriminated in relation to an employment relationship under provincial jurisdiction. [para. 18, emphasis added, citation omitted]
(I note parenthetically that the Human Rights Tribunal of Ontario, applying the constitutional doctrine of interjurisdictional immunity, reached the opposite conclusion in a very similar case: Nicholson v. Bombardier Transportation Canada, Inc, 2012 HRTO 2062 at para. 32).
[10] I make two points about Pontes. First, it was decided before NIL/TU,O. NIL/TU,O clarified that the functional analysis does not include consideration of whether provincial regulation of an entity’s labour relations would impair the “core” of the federal head of power at issue: para. 21. It also clarified that only if the functional analysis is inconclusive should a decision maker consider whether applying provincial laws to the entity’s labour relations would impair the core of the federal head of power: para. 22. Pontes and other Tribunal decisions decided before NIL/TU,O should be considered carefully to determine if they apply the correct approach as described in NIL/TU,O.
[11] Second, and more importantly, I do not need to decide whether Pontes remains good law. Accepting (without deciding) that it does, I find that it does not assist Ms. Carnes because the facts of her case are distinct.
[12] Unlike in Pontes, Ms. Carnes’ complaint against Trans Mountain is premised on her position that it was her employer. In her complaint, Ms. Carnes alleges that she was “jointly employed” by Roevin and Trans Mountain. She explains that she has an employment contract with Roevin which specifies that she works exclusively for Trans Mountain. She says that she has a Trans Mountain business card and email address and appears on Trans Mountain’s internal organization chart. Her work is managed and directed by Trans Mountain. Her allegations against Trans Mountain relate to its actions in directly managing her employment, including about the work that it assigned her and how it scheduled her meetings. In short, the complaint is express in alleging that Trans Mountain discriminated against Ms. Carnes in her employment as her employer. This is distinct from Pontes, in which there was no dispute that YVR was not the employer and its only involvement was in developing a policy that applied to workers at the airport.
[13] In her response to this application, Ms. Carnes argues it is irrelevant whether Trans Mountain was her employer. She argues:
Although Ms. Carnes’ position is that she was employed by Trans Mountain according to the Code’s definition of that term, this question is irrelevant to whether the Tribunal has jurisdiction over Trans Mountain.
[14] I cannot reconcile this argument with the fundamental principle that the labour relations of a federal undertaking fall within federal, and not provincial, jurisdiction: NIL/TU,O at para. 12. The principle is stated plainly in Quebec (Minimum Wage Commission) v. Construction Montcalm Inc., 1978 CanLII 18 (SCC), a case quoted in Pontes at para. 11:
… the regulation of wages to be paid by an undertaking, service or business, and the regulation of its labour relations, being related to an integral part of the operation of the undertaking, service or business, are removed from provincial jurisdiction and immune from the effect of provincial law if the undertaking, service or business is a federal one… [pp. 768-769]
I agree with Trans Mountain that its status as a federal undertaking is determinative of the Tribunal’s jurisdiction in this complaint.
[15] Ms. Carnes also cites Veltri-Tortora v. HLC Home Loans, 2012 BCHT 293 as an example of a case where she argues the Tribunal took jurisdiction “in a complaint against a subsidiary of CIBC, a federally-regulated bank, when the employment discrimination at issue in the case did not relate to the federal undertaking”. Respectfully, I do not find the Tribunal’s reasoning in Veltri-Tortora helpful here. The respondents in that case were separate legal entities from CIBC, and did not “engage in the federal undertaking, work or business of CIBC or indeed any federal undertaking work or business”: para. 5. CIBC was not a respondent. This distinguishes the circumstances here, where Trans Mountain is the respondent and is a federal undertaking.
[16] I acknowledge the challenge for a litigant, like Ms. Carnes, who faces the prospect of divided jurisdiction over her human rights complaint. However, I agree with Trans Mountain that jurisdiction is a matter of constitutional law and statute, which is not determined by expedience or party preference: Fisher v. Polymer Distribution, 2009 HRTO 146 at para. 8.
[17] Further, the Tribunal’s decision to accept the complaint against Roevin for filing is not determinative of its jurisdiction over that aspect of the complaint. Roevin argues that its services to Trans Mountain form a “vital, essential or integral” part of a federal undertaking, such that the complaint against it is also under federal jurisdiction: citing Bergey v. BC Corps of Commissionaires and Stephenson, 2006 BCHRT 275; MacDonald v. MaxSys Consulting, 2010 HRTO 384; and McKeen v. Jones and others, 2008 BCHRT 264. This argument invokes the principle of “derivative jurisdiction”: Tessier Ltée v. Quebec (Commission de la santé et de la sécurité du travail), 2012 SCC 23 at para. 17; Morrison v. GardaWorld Cash Services Canada Corporation and others, 2024 BCHRT 257 at para. 12. In my view, the Tribunal’s jurisdiction over the complaint against Roevin is an open question. Given my decision to dismiss Ms. Carnes’ complaint against Trans Mountain, it is a question that should be decided before the complaint proceeds any further.
III CONCLUSION
[18] Trans Mountain is a federal undertaking. The regulation of its labour relations activities – including how it assigns and manages work – falls to the federal and not the provincial government. For that reason, I conclude that the Tribunal does not have jurisdiction over Ms. Carnes’ complaint of employment discrimination against Trans Mountain. That part of her complaint is dismissed under s. 27(1)(a) of the Code.
[19] I have not considered Roevin’s argument that the complaint against it should be dismissed under ss. 27(1)(a) or (c) of the Code. The Tribunal did not invite Roevin to apply for dismissal, and these submissions fell outside the scope of what the Tribunals asked the parties to address. The case manager will contact the parties to seek submissions about the Tribunal’s jurisdiction over the complaint against Roevin.
Devyn Cousineau
Vice Chair
[1] Trans Mountain says there is no entity called “Trans Mountain Corporation”. I do not need to address or resolve this issue in my decision.