Hansraj v. 6553303 Canada, 2009 HRTO 663

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Indira Hansraj

Applicant

-and-

6553303 Canada Inc. o/a LDS Canada Inc. and Dawn Lescaudron

Respondents

DECISION

Adjudicator: David Muir

Date: May 20, 2009

Citation: 2009 HRTO 663

Indexed as: Hansraj v. 6553303 Canada

APPEARANCES

Indira Hansraj, Applicant ) On her own behalf

6553303 Canada Inc. o/a LDS Canada ) Stephen A. McArthur, Counsel

Inc. )

And Dawn Lescaudron, Respondents )

1This is an Application filed October 29, 2008 under section 53(3) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). This Decision concerns a preliminary issue raised by the respondents prior to the Case Resolution Conference. The applicant alleges in the complaint she made to the Human Rights Commission (the complaint) that her right to be free from discrimination in employment on the basis of ancestry, colour, ethnic origin and race were infringed by the respondents. The applicant self identifies as a person of colour.

2The respondents take the position that the Tribunal has no jurisdiction over this Application because the corporate respondent is a federally regulated enterprise. The Tribunal requested submissions on this issue from the parties. The parties were advised that the Tribunal may decide the issue raised on the basis of the written materials filed. For the reasons set out below I have concluded that the Tribunal has no jurisdiction over the Application.

3The applicant did not challenge any of the facts relied upon by the respondents in making the jurisdictional argument. Accordingly those facts as alleged by the respondents are unchallenged and for purposes of this Decision I accept them.

4The respondents state that the corporate respondent “provides a live dealer, multi-media internet gaming experience.” In doing so, it utilises “presenters who appear as live dealers of card and other games on the internet.” The applicant was a presenter employed by the respondents. The personal respondent was the Operations Manager of the corporate respondent at all material times.

5The respondents operate an online gambling or gaming service. The corporate respondent does not operate a casino - there are no participants at its Toronto facility. The customers to whom the corporate respondent provides its services are located throughout the world. Access to the services offered by the respondent is exclusively via the internet. Customers access these services, wherever in the world they are located, by the use of the various technologies available that facilitate such access.

6The corporate respondent’s services are available only in those jurisdictions around the world which permit internet gaming. In providing its online gambling services LDS is subject to both the laws of the jurisdiction in which the user is located and international law and protocols in respect of the use of internet and the worldwide web. The corporate respondent is also bound by international copyright and banking treaties and regulations.

7The respondents state that it is well established that the issue of the internet for communications is telecommunications and consequently a matter that falls within federal jurisdiction. The respondents state that they are engaged in telecommunications. Consequently they submit the Tribunal has no jurisdiction over this Application, which should have been brought to the Canadian Human Rights Commission.

8The respondents rely upon a number of authorities. In Citron v. Zundel [2002] C.H.R.D.No.1 a decision of the Canadian Human Rights Tribunal (CHRT), amongst the issues for determination was whether or not the communications at issue in that case, a website operated by the respondent in that matter, were transmitted in whole or in part by means of a telecommunications undertaking within the legislative authority of the Parliament of Canada. The CHRT concluded that:

when it was transmitted via the internet, the material was communicated telephonically, repeatedly, in whole or in party by means of the facilities of the telecommunication undertaking within the legislative authority of Parliament.

In plain language the CHRT concluded that, because the information was ‘broadcast’ over the internet, that is using the facilities of a telecommunications enterprise, it was subject to federal and not provincial regulation. Accordingly the CHRT had jurisdiction to deal with the dispute.

9The respondents also rely upon a decision of the Supreme Court of Canada where the issue of jurisdiction over the internet was an issue. In particular the respondents rely upon SOCAN v. Canadian Association of Internet Providers, 2004 SCC 45, [2004] 2 S.C.R. 427, a decision dealing with copyright issues in respect of music downloaded over the internet. One of the questions for determination was whether the communication of material over the internet was “telecommunication”. The Court concluded as follows:

At the end of the transmission, the end user has a musical work in his or her possession what was not there before. The work has, necessarily, been communicated, irrespective of its origin. If the communication is by virtue of the internet, there has been a “telecommunication”. To hold otherwise would not only fly in the fact of the ordinary use of language but would have serious consequences in other areas of law relevant to the internet including Canada’s ability to deal with criminal and civil liability for objectionable communications entering the country from abroad.

See as well: Canada v. Canada Liberty Net 1998 CanLII 818 (SCC), [1998] 1 S.C.R. 626.

10The applicant’s submissions were confined to describing the efforts she has made in filing her human rights complaint in the appropriate place. In the end after discussing her case with various government agencies, her Member of Parliament and others, she filed it with the Ontario Human Rights Commission. Her submissions do not take issue with any of the facts or the law relied upon by the respondents.

ANALYSIS

11Based on the unchallenged facts of the respondents it is clear that the business of the respondent is the provision of a gambling experience to its customers around the world. It does so in a virtual way by the use of the internet. There are no gamers in the location in Toronto; rather users of the corporate respondent’s services access them via the internet using any number of technologies now available to connect to the world wide web. In the absence of any challenge to these facts I am compelled to conclude that the respondent corporation is engaged in telecommunications, a matter within the exclusive jurisdiction of the Parliament of Canada. Accordingly the Ontario Human Rights Tribunal has no jurisdiction over this Application as it relates to the corporate respondent.

12The personal respondent is an employee of the corporate respondent. Although the allegations against the personal respondent are somewhat vague, they do appear to all relate to activities within the course of her employment, as the operations manager. As with the Application as it relates to the corporate respondent, the Tribunal has no jurisdiction to deal with the Application as it relates to allegations made against the personal respondent.

13For the reasons set out above the Application is dismissed. The Case Resolution Conference scheduled for May 22 and 25, 2009 is cancelled.