Daley v. Eva’s Initiatives for Homeless Youth, 2009 HRTO 366

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Annmarie Daley

Applicant

-and-

Eva’s Initiatives for Homeless Youth

Respondent

DECISION

Adjudicator: Sheri D. Price

Date: March 30, 2009

Citation: 2009 HRTO 366

Indexed as: Daley v. Eva’s Initiatives for Homeless Youth

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 her in respect of employment on the basis of disability. The applicant alleges that the respondent employer’s decision not to award her a Frontline Counsellor position following a job competition and interview process was discriminatory and unfair. For the reasons that follow, the Tribunal dismisses the Application as it does not have jurisdiction over the matters raised.

2In its earlier Interim Decision, 2008 HRTO 160, the Tribunal identified a threshold jurisdictional issue in this case and directed the applicant to provide written submissions explaining whether she had a “disability” within the meaning of the Code. The Interim Decision indicated that the Tribunal might dismiss the Application if the applicant did not provide written submissions as directed or if her submissions did not establish that she was alleging discrimination on the basis of “disability” within the meaning of the Code.

3“Disability” is defined in s. 10 of the Code as follows:

(a) any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device,

(b) a condition of mental impairment or a developmental disability,

(c) a learning disability, or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language,

(d) a mental disorder, or

(e) an injury or disability for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act, 1997; (“handicap”)

4The applicant did not make any submissions in response to the Interim Decision.

5According to the Application, the applicant believes that the respondent employer discriminated against her on the basis of disability because, when advising the applicant that she was not the successful candidate for the Frontline Counsellor position, the respondent told the applicant that she needed to improve her interview skills. Other than this reference to her interview skills, the Application does not disclose any facts about the applicant’s alleged disability.

6The Tribunal’s jurisdiction to hear and determine human rights applications is based on the Code, which, among other things, prohibits discrimination and harassment with respect to employment on the basis of the grounds set out in the Code. The Tribunal does not have a general power to inquire into claims of unfairness which are not covered by the Code.

7Although the applicant asserts that the respondent decided not to award her the job in question based on her performance during the interview, she does not allege any facts which would allow the Tribunal to find that she has a “disability” within the meaning of the Code or that her interview skills were somehow affected by a “disability”. There are therefore no facts alleged which would allow the Tribunal to find that the respondent’s decision to award the job to a candidate other than the applicant was based on “disability” within the meaning of the Code. Thus, the Application does not raise matters within the Tribunal’s jurisdiction and is therefore dismissed.

8In light of the Tribunal’s decision that is does not have jurisdiction in this matter, it is not necessary to determine the applicant’s trade union’s outstanding Request to Intervene.