MacDonald v. MaxSys Consulting, 2010 HRTO 584

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Bonnie MacDonald

Applicant

-and-

3755479 Canada Inc. o/a MaxSys Consulting

and Bryan Brulotte

Respondents

DECISION

Adjudicator: Mark Hart

Date: March 17, 2010

Citation: 2010 HRTO 584

Indexed as: MacDonald v. MaxSys Consulting

1This is an Application made under s. 53(5) of the Ontario Human Rights Code, dated June 8, 2009. The underlying complaint was filed with the Ontario Human Rights Commission (the “Commission”) on January 3, 2007.

2The purpose of this Decision is to address the respondents’ request for dismissal of the Application as being within federal jurisdiction and for failure to make out a prima face case of a violation of the Code. In light of my disposition on the issue of jurisdiction, it is not necessary for me to address the question of whether the applicant has made out a prima facie case.

3The corporate respondent, MaxSys Consulting (“MaxSys”) provides consulting services to a variety of clients, including the Office of Indian Residential Schools Resolution Canada (“OIRSRC”) which is an agency of the Government of Canada.

4On February 2, 2005, MaxSys entered into a consulting agreement with the applicant through her sole proprietorship operating under the name, Bonnie MacDonald Consulting, to provide “form filler assistance” to the OIRSRC as an independent contractor. This agreement was terminated by MaxSys on December 15, 2006.

5The applicant’s complaint alleges that she experienced discrimination in respect of employment because of her race and colour contrary to s. 5 of the Code and that she experienced reprisal contrary to s. 8 of the Code. The applicant alleges that in the course of performing her duties under the contract, she experienced racial slurs, harassment and interference with her contractual obligations by representatives of Health Canada, with whom she was required to work cooperatively under her contract. The applicant alleges that she reported these concerns to MaxSys and to the OIRSRC and Health Canada, and that she was told by all parties to keep quiet and that she had to work with these Health Canada representatives. The applicant alleges that the termination of her contract was in reprisal for her complaints about the racial slurs and harassment that she alleges she experienced.

6As agencies of the Government of Canada, the OIRSRC and Health Canada clearly fall under federal jurisdiction. However, these agencies are not respondents to the Application. The allegations raised by the Application are made against MaxSys, the entity with which the applicant was under contract at the material time, and one of its representatives. The question then becomes whether, in light of the nature of the services performed by the applicant for MaxSys, this Application falls within provincial or federal jurisdiction.

7Decisions about constitutional jurisdiction are guided by whether the work of employees who would otherwise be subject to provincial jurisdiction is a vital, essential or integral part of a core federal undertaking. In this regard, the test involves looking for practical or functional integration between the core federal undertaking and the employees in question. The judgment is a functional, practical one and does not turn on technical, legal niceties of the employment relationship. The onus is on the party who seeks to invoke an exception to provincial competence over labour relations: see McElrevy v. BC Corps of Commissionaires, 2004 BCHRT 160 at para. 10.

8There is no material before me to indicate that MaxSys itself is a federally regulated employer. However, it has been recognized that human rights applications against a provincially regulated employer may fall under provincial or federal jurisdiction, depending on to whom the employer is providing services in relation to the specific work performed by the applicant, and whether those services form a vital, essential or integral part of a core federal undertaking: see Bergey v. B.C. Corps of Commissionaires, 2006 BCHRT 275 at para. 9.

9In this case, MaxSys retained the applicant’s services solely for the purpose of providing services under its contract with a federal agency, which also required the applicant to work with representatives of another federal agency. The applicant was engaged in assisting claimants in completing forms to be filed with the OIRSRC in relation to abuse at Indian residential schools. Section 91(24) of the Constitution Act, 1867 provides that “Indians, and Lands reserved for the Indians” is a matter within federal authority. In my view, the OIRSRC, as a federal agency dealing with issues of abuse at Indian residential schools, falls within this area of federal competence and the applicant’s work in assisting claimants to fill out forms in relation to this abuse formed a vital, essential and integral part of this core federal undertaking.

10As a result, I find that the allegations made against MaxSys and the personal respondent in this Application fall within federal jurisdiction and therefore within the legislative authority of the Canadian Human Rights Act and are not within the jurisdiction of this Tribunal.

11I am aware that in her submissions, the applicant states that she did make a complaint to the Canadian Human Rights Commission (“CHRC”), and they referred her to the Ontario Human Rights Commission “after all the facts were explained to them”. No information was provided by the applicant as to the basis upon which this referral was made by the CHRC, nor is there any indication that an actual decision on the jurisdictional issue was ever made either by the CHRC or the OHRC. While it is regrettable that the applicant may have received incorrect advice from the CHRC, this does not and cannot serve to confer constitutional jurisdiction on this Tribunal that I have found it lacks. The applicant’s remedy would be to re-file her complaint with the CHRC in light of this Tribunal’s decision.

12I also am aware from the materials that the contract between the applicant and MaxSys includes a “Governing Law” provision which states that “this agreement shall be governed by and construed in accordance with the laws of the Province of Ontario”. Once again, however, private parties cannot confer constitutional jurisdiction on this Tribunal that it lacks in law.

13For all of these reasons, the Application is dismissed as beyond this Tribunal’s jurisdiction.