Bolton v. Sv-Servo/Shell Canada, 2010 HRTO 544

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Robert Bolton

Applicant

-and-

Sv-Servo/Shell Canada and James Maniam

Respondents

DECISION

Adjudicator: Michelle Flaherty

Date: March 12, 2010

Citation: 2010 HRTO 544

Indexed as: Bolton v. Sv-Servo/Shell Canada

1This Application, filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”), involves allegations of discrimination on the basis of sex and sexual solicitation in the context of employment. This matter has been scheduled for hearing on April 9, 2010.

2The Application raises a preliminary issue as to whether the Tribunal has jurisdiction (power to decide) the allegations in the Application. The Tribunal issued a Case Assessment Direction on February 17, 2010 requiring additional submissions from the applicant regarding whether there is a connection between the allegations in the Application and the prohibited grounds identified in the Code.

3The Tribunal advised the applicant that if he did not provide additional submissions, the Tribunal would decide the issue of its jurisdiction based on the materials already filed. The Case Assessment Direction was sent to the applicant’s representative by email and to the applicant by courier and regular mail. The courier package was returned to the Tribunal and the representative’s email address was not in service. However, the delivery by mail was not returned. The applicant did not provide any submissions.

4Section 5 of the Code relates to discrimination in employment. It states:

Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability.

5Section 7(3) of the Code relates to sexual solicitation. It states:

Every person has the right to be free from

(a) a sexual solicitation or advance made by a person in a position to confer, grant or deny a benefit or advancement to the person where the person making the solicitation or advance knows or ought to reasonably to know that it is unwelcome; or advance where the reprisal is made or threatened by a person in a position to confer, grant or deny a benefit or advancement to the person.

6The Tribunal’s jurisdiction or power to decide is based on the Code, which prohibits discrimination in employment on specific grounds, including sex. Importantly, the Code does not give the Tribunal a general power to inquire into all concerns that may arise in an employment context; its jurisdiction is limited to allegations that have a connection to grounds identified in section 5.

7The applicant has alleged that his former employer’s treatment of him constituted sexual solicitation and differential treatment based on his sex. The applicant’s allegations seem to be that the personal search was improper and that it was of a sexual nature.

8In my view, based on the materials before me, this is not sufficient to bring the allegations within the Tribunal’s jurisdiction. It is not clear that the applicant is alleging that he was treated differently from female employees or that, but for his sex, he would have been treated differently by the respondents.

9Accordingly, the Application is dismissed.