Hughes v. 507417 Ontario Inc., 2010 HRTO 1791

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Claire Hughes

Applicant

-and-

507417 Ontario Inc., Willis Brazolot & Co. Inc., Dennis Brazolot and Christopher Willis

Respondents

DECISION

Adjudicator: Ken Bhattacharjee

Date: September 1, 2010

Citation: 2010 HRTO 1791

Indexed as: Hughes v. 507417 Ontario

WRITTEN SUBMISSIONS BY

Claire Hughes, Applicant ) Trevor Smith, Representative

1The purpose of this Decision is to decide whether the Application is within the Tribunal’s jurisdiction.

2The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on February 18, 2010, which alleged that the respondents subjected her to sexual harassment, sexual solicitations and advances, harassment and discrimination because of her sex, and reprisals, all with respect to employment.

3In her Application, the applicant admitted that she lives in Québec, the workplace was located in Québec, and the incidents in relation to her occurred in Québec and England, not Ontario. However, she stated that the Tribunal should accept her Application because Willis Brazolot & Co. Inc. is a subsidiary of 507417 Ontario Inc., which is ultimately responsible for any harassment, discrimination and reprisals that occurred.

4This Application is related to and arose out of a similar set of facts as the Applications in Wood v. 507417 Ontario, 2010 HRTO 800, Legg v. 507417 Ontario, 2010 HRTO 801, and Smith v. 507417 Ontario, 2010 HRTO 802, which were filed on August 26, 2009. The Tribunal dismissed those Applications on April 12, 2010 on the basis that they were outside this Tribunal’s jurisdiction.

5On April 13, 2010, the Tribunal’s Registrar issued a Notice of Intent to Dismiss (NOID), which informed the applicant that the Application appears to be outside of the Tribunal’s jurisdiction because the events described in it do not appear to be connected to Ontario. Specifically, it appears that the applicant’s employer’s place of business was outside Ontario, her residence and usual place of employment were outside Ontario, and the incidents of alleged harassment, discrimination and reprisal occurred outside Ontario. The Tribunal invited the applicant to provide written submissions to explain why the Application is within the Tribunal’s jurisdiction.

6On May 6, 2010, the applicant’s representative filed a Request for Reconsideration based on the assumption that the Tribunal’s Registrar dismissed the Application. The applicant’s representative appears to have misunderstood the NOID, which did not dismiss the Application, but rather, requested written submissions from the applicant to explain why the Application should not be dismissed. In the circumstances, I will exercise my authority pursuant to Rule 5.2 of the Tribunal’s Rules of Procedure to vary the application of the Tribunal’s Rules, and accept and treat the Reconsideration Request as written submissions in response to the NOID.

7In her written submissions, the applicant stated that her Application is within the Tribunal’s jurisdiction because the corporate respondent, 507417 Ontario Inc., is based in Guelph, the primary officers and directors of 507417 Ontario Inc. reside in Ontario, at least half the clients of the corporate respondent, Willis Brazolot & Co. Inc., are residents of Ontario, a considerable part of the travel, communication and correspondence of Willis Brazolot & Co. Inc. is based in and related to Ontario, and the licensing authorities for the immigration consultants employed by Willis Brazolot & Co. Inc. are based in Ontario.

8Rule 13.1 of the Tribunal’s Rules of Procedure provides that the Tribunal may dismiss an application that is outside the jurisdiction of the Tribunal. Rule 13.2 further states that where it appears to the Tribunal that an application is outside its jurisdiction, it shall, prior to sending the application to the respondent, issue a Notice of Intent to Dismiss the Application. The Notice is only sent to the applicant, and requires him or her to file written submissions. Under the Tribunal’s jurisprudence, an application will only be dismissed at this preliminary stage if it is “plain and obvious” on the face of the application that it does not fall within its jurisdiction: Masood v. Bruce Power, 2008 HRTO 381, Morin v. Alliance de la fonction publique du Canada, 2008 HRTO 58, and Hotte v. Ontario (Finance), 2008 HRTO 63.

9In my view, it is plain and obvious that the Application is outside the Tribunal’s jurisdiction for the following reasons.

10The Tribunal was created by a provincial statute and the rights provided for in the Code are statutory in nature. As a provincial statute, the Code is subject to the constitutional limitation that provinces may not legislate "extra-territorially". The Constitution Act, 1867, makes it clear that provincial legislative jurisdiction is confined to "property and civil rights in the province" (section 92(13)), and "generally all matters of a merely local or private nature in the province" (section 92(16)).

11A provincial statute may, however, cover acts occurring outside the province where the acts, in pith and substance, relate to matters within the province. Thus, where an act of discrimination with respect to employment is alleged to have occurred outside Ontario, but relates to an employment relationship that in other respects is an Ontarian one, the Tribunal will have jurisdiction to consider the complaint.

12In DesRoches v. Hardt, 2009 BCHRT 300, the British Columbia Human Rights Tribunal (“BCHRT”) held that the employment in issue must have a "sufficient connection" to the province, and that some of the relevant factors to consider are whether the employer's place of business was in the province, the employee's residence and usual place of employment were in the province, and the employee’s terms of employment required her to work both in and out of the province. I agree with the BCHRT’s approach and find that the same test applies in Ontario.

13In my view, the applicant’s employment does not have a sufficient connection to Ontario. Her employer’s place of business was outside Ontario, her residence and usual place of employment were outside Ontario, and none of the alleged acts of harassment, discrimination and reprisal against her occurred in Ontario. Furthermore, even if all her submissions about the corporate respondents are factually true, that would still not be sufficient to bring her Application within the jurisdiction of this Tribunal.

14Accordingly, I find that the Tribunal has no jurisdiction over this Application, and it is therefore dismissed.