HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Yaser Al Sharif

Applicant

-and-

Entro Communications Inc. and Andrew Kuzyk

Respondents

DECISION

Adjudicator: Mary Anne McKellar

Date: January 5, 2010

Citation: 2010 HRTO 12

Indexed as: Al Sharif v. Entro Communications

Appearances

Yaser Al Sharif, Applicant ) self-represented

Entro Communications Inc. and )

Andrew Kuzyk, Respondents. ) Michael S. Richards, Counsel

Introduction

1This is an Application under section 53(5) of the Human Rights Code, RS0, 1990 c. H.19, as amended (the Code). It was filed with the Tribunal on March 27, 2009. The underlying complaint to the Human Rights Commission is dated March 18, 2008.

2The respondents requested early dismissal of this Application on the basis that the Tribunal is without jurisdiction to deal with it, and that it is not timely. Oral submissions with respect to this Request were heard on November 26, 2009.

Decision

3This Application is dismissed, for the reasons set out below.

Facts

4In support of the Request the respondents filed the affidavit of Andrew Kuzyk (“Kuzyk”). As it appeared at the commencement of the hearing that the applicant disputed some of the factual assertions in the affidavit, Kuzyk also testified under oath and was cross-examined by the applicant. The applicant also testified briefly.

5Unless otherwise indicated, the facts necessary to the disposition of this Request were not in dispute.

6The organizational respondent (“Entro”) is in the business of designing signage and way-finding systems for large public facilities such as airports and hospitals. Kuzyk is a partner in Entro.

7The applicant is a professional engineer. He was living in Canada in early 2004. He initiated contact with Entro through e-mail and met with Kuzyk on a couple of occasions in January 2004. One of the things he discussed with Kuzyk was how to go about joining a particular professional association. The other thing the two discussed was whether there might be business opportunities for Entro in the Middle East. The applicant states that the second topic of discussion concluded with he and Kuzyk agreeing to a verbal contract whereby the applicant would work to secure contracts or projects for Entro in the Middle East and would be treated as a partner on such projects and entitled to a significant percentage of the profits. Kuzyk denies that he reached any agreement with the applicant in January 2004, but does agree that they agreed to continue discussing the topic of working together and that eventually Entro and the applicant entered into a verbal agreement to do so.

8In the early spring of 2004, Kuzyk and his business partner traveled to the Middle East. The applicant had already been in the area for some time and arranged an itinerary of meetings for them with individuals he knew in the area. Kuzyk’s testimony was that it was some time after this trip that Entro and the applicant decided to pursue business opportunities together in the Middle East. At no time did they have a written agreement setting out the terms and conditions of their relationship.

9It appears that what the applicant did was essentially to keep an eye on what projects were being proposed or developed in the Middle East that might benefit from Entro’s expertise, and to ascertain what local resources Entro might be able to draw upon, and then to assist or advise in the preparation of any tenders Entro made in response to Requests for Proposal. The applicant had no stipulated hours he must put in on Entro’s behalf. He was not required to report on his activities, and it was acknowledged that lengthy periods of time would go by without him having any contact with Entro. There were no restrictions placed on his ability to provide services to anyone else. No statutory withholdings were ever made from any payments that flowed from Entro to the applicant. The applicant was paid by direct deposit into his Canadian bank account.

10Entro secured a contract relating to the Asian Games. Without going into the details, Kuzyk indicated that the terms of the contract spelled out the applicant’s role and his remuneration. Entro designed graphics and signage in Ontario. Fabrication occurred in the Middle East. The applicant was the liaison with the fabricators. At some point prior to the completion of this project the applicant came to Toronto. He was not required or requested to do so by Kuzyk or anyone else at Entro. Neither did anyone at Entro forbid him from coming. In Toronto he worked out of Entro’s boardroom. The applicant did not have an office or a phone (although he had a phone line) on Entro’s premises, nor did he possess any keys or elevator pass that would enable him to gain access to the office directly or after hours. The applicant did have an Entro e-mail address and he was identified on its web-site at some point as being involved with the company in some capacity.

11In addition to this trip to Toronto, it was acknowledged that the applicant came on a couple of other occasions, and may or may not have used the boardroom then as well, although Kuzyk could not recall what, if any, project Entro may have been involved in with the applicant on those occasions. Kuzyk was quite clear, however, that the applicant did not come to Toronto at his behest. This assertion was not disputed by the applicant.

The applicant’s Complaint

12In his original Complaint filed with the Commission, the applicant complained of a “breach of settlement” and alleged that he was being discriminated against in the area of “contract”, but did not identify any prohibited ground of discrimination. Subsequently, he amended his Complaint to indicate that it related to alleged discrimination in “employment”, and that the prohibited grounds for the alleged discrimination were “citizenship” and “place of origin”.

13The facts pleaded in support of the Complaint do not specify the applicant’s place of origin, nor his country of citizenship, although it is possible to infer from some of the assertions that he is not a Canadian citizen.

14The body of the Complaint does not assert that the applicant was an employee of Entro. In fact, in the Complaint and in his representations at the hearing, the applicant specifically denied he was an employee and described himself as a “partner” in Entro’s Middle East projects.

15The first time that money flowed from Entro to the applicant was July 31, 2006, more than two full years after he and Kuzyk entered into their verbal agreement. These funds constituted payment linked to the Asian Games project. The applicant asserts in his Complaint that he did not receive all he was entitled to in respect of this project and seeks to recover it. He further asserts that the Entro staff who came from Canada to work on the project had their travel expenses paid and he did not, and he also asserts that they were paid 100% of their salary and that his “salary” was paid at less than the full rate for the first three months of the project, a period that commenced in March 2006.

16The applicant also seeks through his Complaint and this Application to be compensated for some business opportunities that he identified for Entro, but which Entro chose not to pursue. One of these was the opening of a business office for Entro in Dubai. The applicant claims that prior to October 2006 he expended effort and money in investigating this opportunity, and seeks to be compensated accordingly. Another project for which the applicant seeks compensation is referred to as the Avenues project. The dispute between the applicant and Kuzyk about whether the applicant was entitled to compensation from Entro for this project started in early 2006. The applicant received some payment for it in June 2007, but claims it was not the right amount. He asserts that Entro had advertised him as part of the team, but then “took advantage of my name among the team and excluded me from working on the project, this is not fair” and seeks to recover 50% of the profit of the project.

17The applicant also complains that Kuzyk put the applicant’s name up on the Entro web-site to attract business and then withdrew it when he felt like it. The assertion appears to be that Entro took advantage of the applicant’s association with it to engender goodwill for Entro in the Middle East while failing to enter into a written agreement with the applicant or compensate him fairly.

18Overall, tenor of the applicant’s Complaint is about the unfairness of Kuzyk’s business dealings with him. There is very little in the Complaint that creates any kind of link between Kuzyks’ alleged unfairness and the applicant’s citizenship or place of origin. There are a couple of references comparing the way Entro’s “Canadian” staff were treated as compared to the applicant, but it is not at all clear that “Canadian” is intended to describe their citizenship or place of origin so much as it is to describe their place of residence, i.e. the fact that they worked for or with Entro primarily in Toronto. Entro has stated that the “Canadians” were in any event its employees and not independent contractors and the applicant has not suggested otherwise.

The Parties’ Positions

19The respondents submitted that this Application should be dismissed for any of the following reasons: (1) the applicant was not an employee of Entro’s; (2) even if the applicant were in an employment relationship with Entro, all the work he performed was outside Ontario and beyond the jurisdiction of the Code; and (3) the majority of the matters about which the applicant complains occurred more than one year prior to the date of his Complaint, and there is no basis for the exercise of any discretion to extend the time.

20The applicant opposes the motion to dismiss. He agrees that his relationship to Entro was not that of an employee to an employer, but it was contractual in nature. Further, he disputes that the contract is not governed by Ontario law, including the Code, because he said the contract was entered into in Ontario. Finally, he noted that some events referred to in his complaint occurred within one year prior to its filing, which the respondents had in fact conceded.

21The respondents’ written submissions did not characterize this Application as one that should be dismissed because it does not on its face make out a contravention of the Code. I raised a concern that I did not understand the factual nexus between how Entro and Kuzyk treated the applicant and any prohibited ground of discrimination under the Code. Their responses to my query are set out below.

22The respondents characterized the applicant’s complaint as an assertion that he was treated differently from the employees of Entro, and that his contract was not as fair as theirs were, but noted that the complaint did not contain any allegations that could support a finding that the applicant’s citizenship or place of origin was a factor in his differential treatment. Quite simply, nothing in the complaint suggested that the alleged unfairness in the applicant’s treatment related to anything other than his dissatisfaction with the contractual arrangement the parties had entered into.

23For his part, the applicant asserted that he was treated unfairly when he “was not paid a full time portion and not paid on time, while [his] colleagues received 100%”. He further stated, “I was treated unfairly because I did not have a written agreement”.

Analysis

24What the applicant essentially seeks in this Application is to enforce his understanding of the terms of a verbal agreement he says he made with Kuzyk, acting on behalf of Entro. It is telling that his self-drafted Complaint made no mention of prohibited grounds of discrimination, but did identify that it related to a matter of “contract” and “breach of settlement”, by which I think the applicant intended to refer to Entro’s alleged failure to live up to the terms of the verbal arrangement he had with it.

25The Tribunal does not have jurisdiction to enforce contracts or provide relief for their breach, absent some nexus to a contravention of the Code. The mere fact that the applicant, who is not a Canadian citizen and whose place of origin is apparently outside Canada (although never identified), may have contracted on terms unfavourable to him with Kuzyk (who may be a Canadian citizen) acting on behalf of a corporation (Entro) operating out of Canada, or may assert that the contractual terms he agreed to are not being observed does not bring the dispute within the jurisdiction of the Code or Tribunal.

26The applicant’s response to my query about the relationship between his contractual issues with Kuzyk and Entro and his citizenship or place of origin confirms that the applicant appears to be of the view that the Tribunal is a forum with plenary jurisdiction to address questions of “unfairness”. He is mistaken. The Tribunal has only the jurisdiction conferred on it by the Code, and that is the jurisdiction to determine applications in which there is an assertion that an applicant has been treated differentially and disadvantageously because of a prohibited ground of discrimination such as place of origin or citizenship. What gives the Tribunal jurisdiction therefore is not just the identity or personal characteristics of the applicant, but the assertion that that identity or those personal characteristics constitute one or more prohibited grounds of discrimination and have been a factor in the applicant’s differential and disadvantageous treatment by the responding party.

27There is no basis for any finding that the applicant’s citizenship or place of origin (neither of which were specified in his Application) was a factor that influenced the substance (i.e. the terms) or the form (verbal rather than written) of the contract he made with Entro.

28In view of my determination above, it is unnecessary to address any of the other grounds on which I was urged to dismiss this Application.

Dated at Toronto, this 5th day of January, 2010.