Smith v. 507417 Ontario Inc., 2010 HRTO 1798

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Andrea Smith

Applicant

-and-

507417 Ontario Inc., Willis Brazolot & Co. Inc.,

Dennis Brazolot and Christopher Willis

Respondents

RECONSIDERATION DECISION

Adjudicator: Ken Bhattacharjee

Date: September 1, 2010

Citation: 2010 HRTO 1798

Indexed as: Smith v. 507417 Ontario

WRITTEN SUBMISSIONS BY

Andrea Smith, Applicant ) Trevor Smith, Representative

1On April 12, 2010, the Tribunal issued a Decision, 2010 HRTO 802, which dismissed the Application on the basis that the Tribunal had no jurisdiction over the Application.

2The Tribunal provided the following reasons for dismissing the Application:

Rule 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.

The 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)).

A 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.

In 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 was 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.

In my view, the applicant’s employment does not have a sufficient connection to Ontario. Her employer’s place of business was outside Ontario, and her residence and usual place of employment was outside Ontario. Furthermore, although the applicant alleges in a general way that some incidents occurred in Ontario, I have reviewed the long and detailed narrative in her Application, and all the specific incidents of harassment, discrimination and reprisal are alleged to have occurred in Québec or abroad. The fact that Willis Brazolot & Co. Inc. may be a subsidiary of an Ontario company is not sufficient to bring the Application within the jurisdiction of this Tribunal.

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

3On May 6, 2010, the applicant filed a Request for Reconsideration of the Tribunal’s Decision.

4Section 45.7(1) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, provides that any party to a proceeding before the Tribunal may request that the Tribunal reconsider its Decision in accordance with the Tribunal’s Rules of Procedure.

5Rule 26.5 of the Tribunal’s Rules states that reconsideration will not be granted unless the Tribunal is satisfied that:

a) there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier; or

b) the party seeking reconsideration was entitled to but, through no fault of its own, did not receive notice of the proceeding or a hearing; or

c) the decision or order which is the subject of the reconsideration request is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance; or

d) other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions.

6These four circumstances are also set out in section 2 of the Request for Reconsideration Form, which states: “Please check the reasons why you are making this Request for Reconsideration. Check all that apply.” The applicant checked off the boxes for a) and c).

7In section 3 of the Form, which asks for detailed reasons and representations in support of the Reconsideration Request, the applicant largely repeated the submissions that she made in her filings prior to the dismissal of her Application, but provided more details. Specifically, she 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.

8Nowhere in the Reconsideration Request does the applicant explain how her Request fits within the circumstances set out in Rule 25.6 a) and c). Reconsideration is not available simply because a party disagrees with the Tribunal’s decision, and it is not an opportunity for a party to reargue the case. Therefore, I would dismiss the Reconsideration Request for that reason alone. In addition, even if all the further details about the corporate respondents are factually true, that would still not be sufficient to bring her Application within the jurisdiction of this Tribunal.

9The Request for Reconsideration is dismissed.