Human Rights Tribunal of Ontario
Between:
Curtis Simon Applicant
-and-
McNabb Broadcasting and FM 90.5 Respondents
Decision
Adjudicator: Alison Renton Date: November 10, 2010 Citation: 2010 HRTO 2245 Indexed as: Simon v. McNabb Broadcasting
1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c.H.19 as amended (the “Code”), on July 9, 2010 alleging discrimination in employment on the grounds of sex, sexual orientation and “association with a person identified by a ground”. The Application has not been sent to the respondents.
2On August 18, 2010, the Tribunal sent the applicant a letter. The letter identified the Application as being incomplete and that if completed, a Notice of Intent to Dismiss the Application (“NOID”) was in effect as it appeared that the Application was outside of the Tribunal’s jurisdiction because the respondents appeared to be federally regulated businesses and a review of the Application and the narrative setting out the incidents of alleged discrimination failed to identify any specific acts of discrimination within the meaning of the Code. The Tribunal directed the applicant to file submissions addressing these points.
3The applicant emailed submissions on September 7, 2010 stating that he had spoken to the “federal human rights office” and “they have assured me that this is a provincial case and as such it has handled by your office”.
4The Code only applies to matters that fall within provincial, rather than federal, jurisdiction. The Canadian Human Rights Commission has power to deal with various human rights matters that fall under federal jurisdiction. The courts have found that broadcasting falls under the legislative authority of the federal government pursuant to section 92(10)(a) of the Constitution Act, 1867, U.K., 30 & 31 Victoria, c. 3, which reads as follows:
In each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subjects next hereinafter enumerated: that is to say…..
- Local Works and Undertakings other than such as are of the following Classes:
(a) Lines of Steam or other Ships, Railways, Canals, Telegraphs and other Works and Undertakings connecting the Province with any other or others of the Provinces, or extending beyond the Limits of the Province…… [Emphasis added.]
5Indeed, the courts have found that both the regulation and the content of television and radio broadcasts are within exclusive federal jurisdiction: Irwin Toy Ltd. v. Quebec (Attorney General), 1989 CanLII 87 (SCC), [1989] 1 S.C.R. 927; Re C.F.R.B. and Attorney-General for Canada, 1973 CanLII 788 (ON CA), [1973] 3 O.R. 819 (C.A.); Capital Cities Communications Inc. v. Canadian Radio-Television Commission, 1977 CanLII 12 (SCC), [1978] 2 S.C.R. 141.
6Given that this Application concerns the alleged behaviour of a radio station in the context of the employment, it is not within the jurisdiction of this Tribunal. As such, the Tribunal does not need to address whether the narrative setting out the incidents of alleged discrimination failed to identify any specific acts of discrimination within the meaning of the Code.
7The Application is dismissed.
Dated at Toronto, this 10th day of November, 2010.
“Signed by”
Alison Renton Vice-chair```