Corrine Cash v. Stryker Canada LP, Louis Bourget and Mike Lauzon, 2009 HRTO 1738

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Corrine Cash

Applicant

-and-

Stryker Canada LP, Louis Bourget and Mike Lauzon

Respondents

decision

Adjudicator: Kaye Joachim

Date: October 21, 2009

Citation: 2009 HRTO 1738

Indexed as: Cash v. Stryker Canada

1This Decision deals with an Application under section 53(5) of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”). The applicant alleges discrimination and harassment in employment on the basis of sex.

2The respondents filed a Request for Order during Proceedings submitting that the Tribunal did not have jurisdiction to deal with the Application because the events described seemed to have occurred outside of Ontario. The applicant did not respond to the Request.

3The Tribunal was created by a provincial statute and the rights provided for in the Code are statutory in nature. As a provincial statute, the Code is subject to the constitutional limitation that provinces may not legislate "extra-territorially". The Constitution Act, 1867, makes it clear that provincial legislative jurisdiction is confined to "property and civil rights in the Province" (s. 92(13)), and "generally all matters of a merely local or private nature in the province" (s. 92(16)).

4A provincial statute may, however, cover acts occurring outside the province where the acts, in pith and substance, relate to matters within the province. Thus, where an act of discrimination with respect to employment is alleged to have occurred outside Ontario, but relates to an employment relationship that in other respects is an Ontarian one, the Tribunal will have jurisdiction to consider the complaint.

5I agree with the approach adopted by the British Columbia Human Rights Tribunal that the employment in issue must have a "sufficient connection" to the province: DesRoches v. Hardt, 2009 BCHRT 300. Some of the relevant factors to consider are: whether the employer's place of business was in the province; whether the employee's residence and usual place of employment was in the province; and whether the employee's terms of employment required them to work both in the province.

6In this case, the organizational respondent is a limited partnership with a head office in Hamilton, Ontario. The organizational respondent carries on business selling and distributing surgical and medical products.

7The respondent, Mike Lauzon is the Divisional Sales Manager for Eastern Canada and works from an Ontario location. Louis Bourget is an oral surgeon who works in Bathurst, New Brunswick. He is not a direct client of the organizational respondent, but works at a hospital and is consulted about the hospital’s decisions to purchase products from the organizational respondent.

8The applicant was a sales representative for the eastern provinces and worked from her home office in Halifax, Nova Scotia. She reported to Mr. Lauzon in Ontario.

9The applicant alleges that the respondent Bourget harassed her during a conference in Ontario in November 2006. Eventually, her sales in the eastern provinces lessened and she believed it was because she refused Dr. Bourget’s advances. She expressed this concern to the organizational respondent. Her employment was ultimately terminated.

10On the basis of the information before me, it appears that the central issues raised in the Application relate to the applicant’s employment which took exclusively in the eastern provinces.

11The only relationship to Ontario is that the alleged harassment took place at a conference in Ontario and the organizational respondent has an Ontario address.

12In my view, the Application lacks a sufficient connection to Ontario. For these reasons, the Tribunal cannot deal with the Application and it must be dismissed.