Guerrier v. Canadian Imperial Bank of Commerce, 2009 HRTO 124

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ulysse Guerrier

Applicant

-and-

Canadian Imperial Bank of Commerce (CIBC) Care Contact Centre and Rossella Sperini

Respondents

DEcision

Adjudicator: Brian Cook

Date: February 4, 2009

Citation: 2009 HRTO 124

Indexed as: Guerrier v. Canadian Imperial Bank of Commerce

1The applicant filed an Application on October 16, 2008 under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in employment by the respondents. This Interim Decision addresses the respondents’ position the Tribunal does not have jurisdiction to deal with the Application because CIBC (the corporate respondent) is federally regulated, and the Application should be dismissed.

2The applicant disputes the respondents’ position challenging both its substance and the process by which they brought the issue before the Tribunal.

PROCEDURAL ISSUES

3The applicant submits that the respondents’ request is not properly before the Tribunal because it was not delivered to all the parties and any person or organization who may have an interest in the Request as required by Rule 19.2 of the Tribunal’s Rules of Procedure. The applicant submits that the respondents failed to deliver a copy of the Request to the union identified in the Application and the Request should be dismissed on that basis.

4I note that the respondents did subsequently send a copy of the Request to the union. To the extent that there was a breach of Rule 19.2, I find there was no prejudice to the applicant and therefore no basis to refuse to consider the Request (Rules 1.1 and 5.1).

5The respondents filed a Request for Order During Proceedings and did not file a Response to the Application. The Tribunal’s Rules suggest that a respondent is required to file a Response (Form 2) even if the respondent believes that the Tribunal lacks jurisdiction. However, in Masood v. Bruce Power, 2008 HRTO 381, the Tribunal held:

It 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.

Accordingly, 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.

6In the present case, the respondents filed a Request for Order During Proceedings and did not file a Response. They did this prior to the Tribunal’s decision in Masood. However, for the reasons explained in Masood, I conclude that the respondent’s Request for Order can be considered notwithstanding that a Response was not filed.

JURISDICTIONAL ISSUE

7The respondent asserts that the Tribunal does not have jurisdiction to deal with the Application because the corporate respondent is a bank and banks are federally regulated. The respondent submits that the applicant’s human rights complaints are properly addressed by the Canadian Human Rights Commission (the “CHRC”), and not by this Tribunal.

8The applicant agrees the Tribunal does not have jurisdiction over banks, but argues that he was employed by CIBC’s Visa Care Contact Centre and not directly employed by CIBC. The applicant has not, however, provided any evidence to support the contention that the Visa Care Centre is a separate corporate entity from CIBC or that it is not federally regulated.

9The applicant submits that the test is whether it is “plain and obvious” that the Tribunal does not have jurisdiction. He suggests that if it is not plain and obvious that the Tribunal lacks jurisdiction, the Application should proceed. He relies on Qureshi v. Group 4 Securicor, 2008 HRTO 65, which stated:

Where there is a potential issue relating to whether a matter falls under provincial or federal jurisdiction the Tribunal will only dismiss the application if it is plain and obvious that the matter falls under federal jurisdiction.

10Applications may be dismissed for lack of jurisdiction because the respondent is federally regulated at different stages of the Tribunal process. Pursuant to the Tribunal’s Rule 13.2, where it appears to the Tribunal that an application is outside the jurisdiction of the Tribunal, the Tribunal shall, prior to sending the application to the respondent(s), issue a Notice of Intention Dismiss the Application. The Notice is sent only to the applicant who is invited to make submissions on the jurisdiction issue. At this early stage of the Tribunal’s process, the Tribunal will only dismiss the application if it is plain and obvious that the matter falls under federal jurisdiction and a decision to continue to deal with an application is not a final decision on the issue of jurisdiction: Morin v. Alliance de la function publique du Canada, 2008 HRTO 58; Hotte v. Ontario (Finance), 2008 HRTO 63.

11At this early stage, the determination is made based only on the information provided by the applicant. If it is not plain and obvious that the respondent is federally regulated, the Tribunal will continue to process the application and send a copy to the respondent. The respondent may then raise the jurisdiction issue and the Tribunal may determine that it does not have jurisdiction to deal with the application.

12In the present case, the Application was processed by the Tribunal and a copy was delivered to the respondents. The respondents have now raised the issue of the Tribunal’s jurisdiction. In these circumstances, the test is not whether it is plain and obvious that the respondents are federally regulated. Rather, the Tribunal must determine whether the respondents are or are not federally regulated.

13The materials filed with the Request for Order include an Order of the Canada Labour Board certifying a union under the Canada Labour Code in regard to a bargaining unit that includes the “Chargex Centre of the Canadian Imperial Bank of Commerce”. The certified union appears to be a predecessor union to the union that currently represents the employees of the Visa Care Contact Centre. This is evidence that the employer is federally regulated. The materials also include a copy of the current collective agreement that references federal legislation, including the Canadian Human Rights Act. This is further evidence that the corporate respondent is federally regulated.

14The applicant indicates that he has filed an application with the CHRC but has asked that it be “stayed” pending a determination of this Tribunal’s jurisdiction to deal with the Application. He claims that he has been told verbally by the CHRC that it lacks jurisdiction because “CIBC Visa, specifically, does not fall under federal jurisdiction.” The applicant has not provided any evidence to explain why the CHRC would not have jurisdiction over CIBC Visa Care Contact Centre or that might confirm the information that was provided verbally.

15The applicant argues that even if the Tribunal does not have jurisdiction over the corporate respondent, it might have jurisdiction over the personal respondent, who is an employee of the corporate respondent. However, the allegations against both the corporate respondent and the personal respondent arise out of the same facts and occur in the context of the applicant’s employment with the corporate respondent. Since the corporate respondent is federally regulated then the employment relationship between it and its employees, including the applicant and the personal respondent, is also subject to federal regulation.

16There may be circumstances where in order to properly and fairly determine a jurisdictional question, the Tribunal may require viva voce evidence at an oral hearing. However, in these circumstances, I am satisfied that the evidence provided by the parties clearly establishes that this matter is governed by federal legislation.

17In summary, the respondents have provided evidence to support finding the corporate respondent is federally regulated. The only evidence to the contrary is the unsupported hearsay assertion that the CHRC verbally indicated that it did not have jurisdiction over “CIBC Visa”. Based on the evidence, I find that the corporate respondent is federally regulated and that the Tribunal does not have jurisdiction to deal with the Application.