Menzel v. Canada (Citizenship and Immigration), 2008 HRTO 238

Human Rights Tribunal of Ontario

B E T W E E N:

Lee Thomas Menzel by his next friend Sigrid Menzel

Applicant

-and-

Citizenship and Immigration Canada and S. Panchbhaya

Respondents

DECISION

Adjudicator: Alison Renton

Date: November 5, 2008

Citation: 2008 HRTO 238

Indexed as: Menzel v. Canada (Citizenship and Immigration)

Human Rights Tribunal of Ontario

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WRITTEN SUBMISSIONS BY

Lee Thomas Menzel, Applicant ) On His Own Behalf

1This Application alleges that Lee Thomas Menzel, his mother and brother have been denied landed immigrant status and fear deportation. The Application was filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on September 8, 2008 alleging discrimination on the basis of race, colour, citizenship and age by the respondents, the federal Ministry of Citizenship and Immigration and the Immigration Officer who denied the claim. The Application seeks remedial relief on behalf of Mr. Menzel, his brother, also a minor, and his mother.

2The applicant is 16 years of age. As such, he does not have the capacity to file an application based on the above grounds or to file an application on behalf of his brother or mother. Although the Application indicates that it was filed on his behalf, no Form 4 was completed. The applicant’s mother, Sigrid Menzel, is identified as the applicant’s representative. I am confident the mother intended to file the Application as the applicant’s next friend and will proceed on that basis. As the Application is dismissed for the reasons set out below, I do not need to determine whether the brother or the mother are to be named as parties to the Application.

3On September 19, 2008, the Tribunal issued a “Notice of Intent to Dismiss” under Rule 13.2 of the Rules of Procedure for the reason that “the Respondent appears to be a federal government department, agency or a federally regulated business or service”. The applicant made written submissions, acknowledging that the Application could fall outside the Tribunal’s jurisdiction, but requesting that the Application and written submissions be reviewed on humanitarian and compassionate grounds.

4A dismissal under Rule 13 occurs before an application is served on a respondent. With respect to division of powers issues, the Tribunal will only dismiss the application if it is plain and obvious that the matter falls under federal jurisdiction: Morin v. Alliance de la function publique du Canada, 2008 HRTO 58,; Hotte v. Ontario (Finance), 2008 HRTO 63,.

5The Tribunal appreciates that the applicant’s issues are of great importance to him and his family. Nonetheless, it is plain and obvious that the matters he raises do not fall within provincial jurisdiction. The Application names a federal government Ministry and an official carrying out statutory responsibilities under federal immigration legislation. It relates to immigration, which falls under the responsibility of the Government of Canada. There may be other avenues to challenge federal immigration decisions, however the Ontario Code is not one of them. The applicant may wish to consult the Applicant’s Guide, page 7, available on the Tribunal’s website or from the Registrar’s office.

6Therefore, the Application is dismissed.