Probhash Mondal v. TD Waterhouse Private Investment Advice and Cal Wales, 2009 HRTO 394

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Probhash Mondal

Applicant

-and-

TD Waterhouse Private Investment Advice and Cal Wales

Respondents

INTERIM DECISION

Adjudicator: David A. Wright

Date: April 6, 2009

Citation: 2009 HRTO 394

Indexed as: Mondal v. TD Waterhouse

WRITTEN SUBMISSIONS BY

Probhash Mondal, Applicant ) On His Own Behalf )

TD Waterhouse Private Investment Advice, ) Megan Telford, Counsel Respondent )

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, alleging discrimination in employment on the basis of race, colour, ancestry, and ethnic origin.

2The respondent alleges that the subject-matter of this Application is not within provincial jurisdiction. It argues that all employees of the TD Bank Financial Group are employed by the Toronto-Dominion Bank and assigned to particular business units, which are not legal entities. It asserts that it has treated the applicant’s employment as governed by federal employment legislation. The bank’s internal classification of the employment relationship is, however, not determinative of the question of the identity of the applicant’s employer or of whether it falls under s. 91(15) of the Constitution Act, 1867, which gives the federal Parliament jurisdiction over banking.

3The applicant takes the position that the Tribunal has jurisdiction over his Application, as he did not work in banking or for TD Bank. He states that he was employed as an investment dealer by TD Waterhouse Incorporated. He argues, among other submissions, that s. 415 of the Bank Act, S.C. 1991, c. 46, prohibits banks from engaging in certain securities-related business, including the work he did. He states that he worked in separate and distinct premises from TD Bank.

4I have reviewed the material filed by both parties, which does not include any case law. I am unable to determine, without further evidence and legal submissions, whether the applicant’s employment relationship with the respondent falls under provincial or federal jurisdiction. Accordingly, the respondent must file a full Response to the Application. It would be fair, just, and expeditious, once this is done, to determine the issue of jurisdiction as a preliminary matter and the Tribunal will schedule a hearing for this purpose.

ORDER

5The Tribunal makes the following Orders:

1. The respondent shall file a full Response by April 17, 2009.

2. A one-day hearing will be scheduled to hear evidence and argument on the issue of jurisdiction. Rules 16 and 17, governing disclosure of documents and witnesses, shall apply as usual.

3. The Tribunal notes that the applicant has agreed to mediation. If the respondent also agrees to mediation, the hearing shall be scheduled after mediation, if necessary.

6I am not seized of this Application.