Muhammad Masood v. Bruce Power, 2009 HRTO 102

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Muhammad Masood

Applicant

-and-

Bruce Power

Respondent

DECISION

Adjudicator: Sheri D. Price

Date: February 2, 2009

Citation: 2009 HRTO 102

Indexed as: Masood v. Bruce Power

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging that the respondent discriminated against him in respect of employment on the basis of age by not hiring him as a nuclear operator.

2The respondent has filed a Request for Order During Proceedings asserting that the subject-matter of the Application falls under federal and not provincial jurisdiction and is therefore not within the Human Rights Tribunal of Ontario’s (the “Tribunal”) jurisdiction to determine.

3The respondent asserts that it is a “nuclear facility” within the meaning of and subject to the Nuclear Safety and Control Act, S.C. 1997, c. 9, and therefore subject to the federal Canadian Human Rights Act, R.S., 1985, c. H-6, and not the Ontario Code.

4The Applicant does not seem to disagree with the respondent’s assertion that it is covered by the Canadian Human Rights Act but he nonetheless wishes to have the Tribunal hear and determine his Application. He submits that the Tribunal constitutes an alternate forum for redress which he is entitled to exhaust before attempting to enforce his human rights through the Canadian Human Rights Commission which has power to deal with various human rights matters that fall under federal jurisdiction.

5The Code only applies to matters that fall within provincial, rather than federal, jurisdiction. Pursuant to s. 91(29) and 92(10)(c) and of the Constitution Act, 1867, (U.K.), 30 & 31 Victoria, c. 3, the Canadian Parliament (“Parliament”) has jurisdiction over works and undertakings which are “declared by the Parliament of Canada to be for the general Advantage of Canada or for the Advantage of Two or more of the Provinces.”

6Section 71 of the Nuclear Safety and Control Act, supra, states:

71. Any work or undertaking constructed for the development, production or use of nuclear energy or for the mining, production, refinement, conversion, enrichment, processing, reprocessing, possession or use of a nuclear substance or for the production, possession or use of prescribed equipment or prescribed information is declared to be a work or undertaking for the general advantage of Canada.

7Pursuant to the above section, the respondent, as a nuclear facility, is a work or undertaking declared to be for the general advantage of Canada. It therefore falls under the jurisdiction of Parliament pursuant to section 92(10)(c) of the Constitution Act, 1867, supra. The Supreme Court of Canada interpreted similar wording to that in s. 71 of Nuclear Safety and Control Act, supra, and found that Parliament had jurisdiction over nuclear power production and facilities generally and over labour relations matters arising in respect of such works or undertakings, in particular: Ontario Hydro v Ontario (Labour Relations Board) (1993), 1993 CanLII 72 (SCC), 107 D.L.R. (4th) 457.

8In the circumstances, the Tribunal has no jurisdiction over this Application. The Application is therefore dismissed.