Mark Kleiman v. Specialized Transportation Inc., 2009 HRTO 549

Editor’s Note: Corrigendum released on May 11, 2009. Original judgment has been corrected with text of corrigendum appended.

May 11, 2009

Mark Kleiman v. Specialized transportation Inc.

RE : Amended Notice for Interim Decision Dated May 1, 2009

Please note the Decision dated May 1, 2009 contains a typographical error on the cover page.

It is cited as Interim Decision. Please note that this should read Decision.

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mark Kleiman

Applicant

-and-

Specialized Transportation Inc.

Respondent

DECISION

Adjudicator: Alison Renton

Date: May 1, 2009

Citation: 2009 HRTO 549

Indexed as: Kleiman v. Specialized Transportation

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) on December 29, 2008. The applicant alleges discrimination due to disability in employment.

2The respondent has not filed a Response. Instead, the respondent filed a Request for Order During Proceedings (Form 10) (“RFOP”) dated April 7, 2009 requesting the Tribunal dismiss the Application. The respondent submitted that the Application should be dismissed because it is a transportation company that regularly and continuously crosses provincial and international boundaries. The applicant did not file a Response to the RFOP.

3Rule 13.1 of the Rules of Procedure provides that the Tribunal may dismiss an application that is outside of its jurisdiction. The Tribunal’s jurisprudence has recognized that the Tribunal may not require a full response where the respondent alleges that the matter falls under federal jurisdiction. Instead, a respondent who asserts that the matter falls under federal, rather than provincial, jurisdiction may deliver and file a Request for Order During Proceedings in accordance with the Tribunal’s 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: Masood v. Bruce Power, 2008 HRTO 381 at paras. 9 and 10.

4In this case, the respondent filed a RFO, thus complying with the process set out in Masood. The applicant has not contradicted the respondent’s assertion that the matter falls under federal, rather than provincial jurisdiction because the respondent engages in inter-provincial and international transportation. In these circumstances, based upon the undisputed facts, I am satisfied that the respondent is federally regulated and that the Tribunal does not have jurisdiction to deal with the Application: see, for example, Chamberlain v. 2027467 Ontario, 2008 HRTO 216.

5The Application is dismissed.