Muhammad Anwar Masood v. Bruce Power, 2008 HRTO 381

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Muhammad Anwar Masood

Applicant

-and-

Bruce Power

Respondent

INTERIM DECISION

Adjudicator: David A. Wright

Date: December 9, 2008

Citation: 2008 HRTO 381

Indexed as: Masood v. Bruce Power

1The applicant filed an Application on October 16, 2008 under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19 (the “Code”), alleging discrimination in employment by the respondent, Bruce Power. The applicant alleges that he was discriminated against on the basis of age when he was not hired as a nuclear operator.

2On October 27, 2008, the Tribunal delivered the Application to the respondent. The letter indicated that the respondent had thirty-five days to file a Response. That period expired on December 1, 2008.

3On December 1, 2008, counsel for the respondent wrote to the Tribunal as follows:

Please note that as a preliminary matter you should be aware that Bruce Power is governed federally for matters of Human Rights. This jurisdiction issue was raised in the past and it was agreed by your Tribunal that you do not have jurisdiction to accept such an application.

Accordingly, we would ask that you discuss this preliminary matter with the complainant.

4First, I note that the respondent’s letter was not copied to the applicant, as required by Rule 1.12 of the Tribunal’s Rules of Procedure. A copy shall be sent to the applicant with this decision. The Tribunal, which commenced receiving applications on June 30, 2008 under the amended Code, has made no decisions involving this respondent. Prior to this date, complaints were received by the Ontario Human Rights Commission. The Tribunal does not generally “discuss” matters with parties.

5That said, this Application raises the issue of how respondents who assert that the matter falls under federal jurisdiction may raise this issue and how the Tribunal will address such assertions. This decision provides guidance on this procedure.

6Rule 13.1 of the Rules of Procedure provides that the Tribunal may dismiss an application that is outside its jurisdiction. Rules 13.2 to 13.5 provide for a process under which the Tribunal may initiate a Notice of Intent to Dismiss on the basis of jurisdiction, which occurs without the application being sent to the respondent. Under the Tribunal’s jurisprudence, an application will only be dismissed at this preliminary stage if it is “plain and obvious” on the face of the application that it does not fall within provincial jurisdiction: Morin v. Alliance de la function publique du Canada, 2008 HRTO 58; Hotte v. Ontario (Finance), 2008 HRTO 63; Shaikh v. United Parcel Service, 2008 HRTO 67; Menzel v. Canada (Citizenship and Immigration), 2008 HRTO 238; Dioba v. BMO (Bank of Montreal), 2008 HRTO 325.

7The Tribunal’s experience is that information as to whether the matter is within federal or provincial jurisdiction will sometimes not be apparent on the face of the application. A decision as to whether the matter falls within the Tribunal’s jurisdiction may require information from the respondent about the nature of its business: see, for example, Morgan v. Ottawa (City), 2008 HRTO 145; Osier v. Ontario Power Generation, 2008 HRTO 190; Chamberlain v. 2027467 Ontario Inc., 2008 HRTO 216; Piernicki v. Hunt, 2008 HRTO 235; Shaikh v. United Parcel Service Canada, 2008 HRTO 279. Accordingly, in many cases the Tribunal is not able to make decisions about whether a matter is under federal jurisdiction on the basis of a Tribunal-initiated Notice of Intent to Dismiss.

8The Tribunal’s Rules require a full response from respondents, even when they are raising an objection to the application which they seek to have determined on a preliminary basis. The Tribunal’s response form permits a request for early dismissal without a full response in only three circumstances: where the respondent alleges that a claim for relief based upon the same facts was filed in civil court, that a complaint was filed with the Ontario Human Rights Commission based upon the same, or substantially the same facts, or that a full and final release was signed. In all other circumstances, respondents must file a full response, even where a preliminary or jurisdictional issue is being raised.

9It is appropriate, however, that the Tribunal treat circumstances where a respondent alleges that the matter falls under federal jurisdiction differently from other jurisdictional issues and circumstances where a respondent seeks to have an issue determined as a preliminary matter. This is in the interest of both respondents and applicants. Where a matter falls under federal jurisdiction, the Canadian Human Rights Act, R.S. 1985, c. H-6, generally applies and the Canadian Human Rights Commission (the “CHRC”) often has the power to deal with allegations that human rights have been violated. Where the CHRC is clearly the proper forum in which to raise the dispute, the applicant may wish to file a complaint there, and the respondent may wish to devote its energies to defending it.

10Accordingly, the Tribunal will permit respondents who assert that the matter falls under federal, rather than provincial, jurisdiction to raise this issue without filing a full response. A respondent who wishes to do so may deliver and file a Request for Order During Proceedings (Form 10) in accordance with the Tribunal rules, setting out the basis upon which it argues that the matter falls under federal jurisdiction and all its arguments and evidence in support of this conclusion. It must do so at the earliest possible opportunity after the application is delivered to it.

11In this case, the respondent shall have until December 22, 2008 to file its Request in accordance with the above.

12I am not seized of this matter.