Grant v. Bombardier, 2009 HRTO 965

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Malcolm Grant

Applicant

-and-

Bombardier Inc.

Respondent

DECISION

Adjudicator: Jay Sengupta

Date: July 3, 2009

Citation: 2009 HRTO 965

Indexed as: Grant v. Bombardier

WRITTEN SUBMISSIONS BY

Malcolm Grant, Applicant ) Christopher Newman, ) Representative

Bombardier Inc., Respondent ) Caroline Ursulak, Counsel

1The applicant filed an Application on December 5, 2008, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”), arising out of his former employment with the respondent. The applicant checked off “reprisal or threat of reprisal” as the alleged ground for his Application. Specifically, the applicant alleges that he made several complaints about workplace harassment during the course of his employment which resulted in his allegedly being “blacklisted” and not rehired after a lay off.

2Section 8 of the Code, which prohibits reprisals or threat of reprisals, states:

Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal.

3In a previous Interim Decision, 2009 HRTO 603, the Tribunal noted that the applicant has not alleged, in either his Application or his Reply that the respondent’s alleged actions were in response to claiming or enforcing a right under the Code, instituting or participating in proceedings under the Code, or refusing to infringe the right of another person. The Tribunal requested the parties’ submissions on the respondent’s request for early dismissal for lack of jurisdiction.

4Written submissions have now been received from the parties.

5The applicant claims his complaints of workplace harassment led to the alleged reprisal actions by the respondent. However, he has not, in any of his submissions, linked his complaints of workplace harassment to a ground of discrimination under the Code. Essentially, the applicant argues that section 8 stands alone without any regard to any other provisions in the Code.

6The applicant’s submissions suggest an alternative argument that the protection against reprisal under the Code applies where he had a good faith belief that his rights under the Code had been violated. Again, he does not specify which Code protected rights he believes or believed, in good faith, were infringed.

7Counsel for the respondent submits that the applicant had made a complaint of harassment that was not related to any prohibited ground of discrimination or harassment under the Code. The complaint was made under the respondent company’s policy entitled “Code of Ethics and Business Conduct’ which also covers other issues such as health and safety, communications, intellectual property and confidential information as well as discrimination and harassment. She submits that a claim for reprisal cannot stand on its own and that the applicant has had ample opportunity to plead his case and has failed to establish that this is an Application over which the Tribunal has jurisdiction.

DECISION

8It is clear from the terms of section 8 that a claim of reprisal cannot stand on its own, absent any attempt to claim or enforce a right under the Code, institute or participate a proceeding under the Code or refuse to infringe the right of another person.

9The Tribunal does not have a general power to evaluate employment relationships, but hears only applications that allege violations of the Code. See: Matthews v. Stanley, 2008 HRTO 372. The Code prohibits discrimination in employment on the grounds of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability. None of the applicant’s submissions claim that he is a person who belongs in any of the protected grounds listed in the Code, whose right to equal treatment has been violated based on one of the identified grounds.

10Even if section 8 is broad enough to protect against reprisals individuals who honestly, but mistakenly, believe they have suffered discrimination under the Code, it cannot apply where the applicant fails or refuses to identify what ground of discrimination he believes applies to him.

11I am satisfied that the applicant has not raised issues that are in the Tribunal’s power to decide.

12The Application is dismissed.