Graham v. Mohawk Council of Akwesasne, 2009 HRTO 510

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Joyce Graham

Applicant

-and-

Mohawk Council of Akwesasne and Helen McKenzie

Respondents

-and-

Her Majesty the Queen in Right of Ontario as represented by the Ministry of the Attorney-General

Intervener

Interim DECISION

Adjudicator: Jay Sengupta

Date: April 27, 2009

Citation: 2009 HRTO 510

Indexed as: Graham v. Mohawk Council of Akwesasne

1On December 5, 2008, Joyce Graham filed an Application with the Tribunal under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”). She claims that she suffered discrimination in the area of employment on the basis of family status.

2Along with their Response, the respondents have filed a Notice of Constitutional Question as a part of a Request for Order During Proceedings. The respondents seek an order dismissing this Application as being outside the jurisdiction of the Tribunal. In support of their Request, the respondents argue that the Mohawk Council of Akwesasne and their employee, the personal respondent, are covered by s. 91(24) of the Constitution Act, 1867 (U.K.), 30 and 31 Vict. c.3, which gives the federal government exclusive jurisdiction over “Indians, and Lands reserved for the Indians”. The respondents also allege that the Council’s territory and jurisdiction is inter-provincial.

3In two letters dated March 16, 2009 and April 20, 2009, the Ministry of the Attorney General for the Province of Ontario (the “Attorney General”) has notified the Tribunal of its intention to intervene in this Application, pursuant to sections 109(4) and 109(6) of the Courts of Justice Act, R.S.O. 1990, Chap. C.43. In the circumstances the Attorney General is added as an intervener in these proceedings.

4The Attorney General has also indicated that it intends to request a deferral of this Application pending a December 2009 hearing by the Supreme Court of Canada of two cases which involve issues of jurisdiction similar to those raised by the respondents in this Application. However, no additional documents have yet been filed with the Tribunal.

5Within two weeks of receipt of this Interim Decision the Attorney General is directed to:

(a) deliver to the other parties and file with the Tribunal a response (Form 11) to the respondents’ Request for Order During Proceedings setting out its position on the request to dismiss on the basis of jurisdiction; and

(b) deliver to the other parties and file a Request for Order During Proceedings (Form 10) in accordance with Rules 14.1 and 19 of the Tribunal’s Rules of Procedure outlining the basis for its Request to defer the Application.

5Any party to the Application may deliver and file a response to the Request to Defer within the time set in the Rules.

6I am not seized of this matter.