Daniel Khan v. Bell Distribution Inc., 2010 HRTO 499

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Daniel Khan

Applicant

-and-

Bell Distribution Inc.

Respondent

INTERIM DECISION

Adjudicator: Brian Eyolfson
Date: March 5, 2010
Citation: 2010 HRTO 499
Indexed as: Khan v. Bell Distribution

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 November 2, 2009, alleging discrimination on the basis of disability in employment.

2On November 4, 2009, the Tribunal provided the applicant with a Notice of Intent to Dismiss, indicating that it appears that the Application is outside the Tribunal’s jurisdiction because “the respondent appears to be a federal government department, agency or a federally regulated business or service.” The applicant was directed to provide written submission in response.

3The applicant provided submissions, dated November 10, 2009, stating that he was in contact with both “the Federal and Provincial Human Rights offices” and he was advised by both that since his employment with the respondent was “as a Regional Manager with their Corporate Retail division that any claim against them would need to be filed with the Ontario Human Rights Tribunal”. He submitted further that this was confirmed by an individual at the Canadian Human Rights Commission.

4Rule 13.1 of the Tribunal’s Rules of Procedure provides that the Tribunal may dismiss an application that is outside its jurisdiction. Rules 13.2 to 13.5 provide for a process under which the Tribunal may initiate a Notice of Intent to Dismiss on the basis of jurisdiction, which occurs without the application being sent to the respondent. Under the Tribunal’s jurisprudence, an application will only be dismissed at this preliminary stage if it is “plain and obvious” that the matter falls under federal jurisdiction: Masood v. Bruce Power, 2008 HRTO 381.

5By Interim Decision, 2009 HRTO 1971, the Tribunal determined that it was not plain and obvious that this matter falls under federal jurisdiction. Accordingly, the Tribunal held that it would continue to deal with this Application and the Application was served on the respondent.

6On December 29, 2009, the Tribunal received a Request for an Order During Proceedings (“RFOP”), from Bell Mobility Inc., seeking the dismissal of the Application as outside the Tribunal’s jurisdiction. The materials explain that Bell Mobility Inc. is a corporation resulting from the merger of Bell Mobility Inc. and Bell Distribution Inc., the designated respondent in the Application.

7In the RFOP, it is submitted that the applicant was employed by Bell Distribution Inc. from April 27, 2007 to December 22, 2008, and that Bell Distribution Inc. was a provincially-regulated employer at the time of the applicant’s termination of employment. However, on January 1, 2009, Bell Distribution Inc. merged with Bell Mobility Inc. Attached to the RFOP is a Certificate of Amalgamation issued by Industry Canada under the Canada Business Corporations Act, confirming that Bell Distribution Inc. amalgamated with Bell Mobility Inc. effective January 1, 2009 and the name of the amalgamated corporation is Bell Mobility Inc.

8It was also submitted in the RFOP that when the applicant filed his Application, Bell Distribution Inc. had ceased to exist. In addition, the core activities of Bell Mobility Inc. are in the telecommunication business and, consequently, Bell Mobility Inc. is a federally-regulated employer. According, it was submitted that the Tribunal should decline jurisdiction and dismiss the Application.

9The applicant filed a Response to the RFOP submitting that he filed his Application with the Tribunal based on the information that his former employer, Bell Distribution Inc., was regulated by the province.

10Based on the written materials only, I am not able to determine the jurisdiction issue. Bell Mobility Inc. has indicated that it is available to provide any other document or information that the Tribunal could need in order to fully address the matter and will be available should the Tribunal want to hold a conference call or hearing on the RFOP. In the circumstances, the Tribunal directs the respondent to file a Response (Form 2) to the Application within 35 days of the date of this Interim Decision. Upon receipt of the Response, the Tribunal will determine how to proceed.

11I am not seized of this matter.