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

DECISION

Adjudicator: Ken Bhattacharjee

Date: April 12, 2010

Citation: 2010 HRTO 802

Indexed as: Smith v. 507417 Ontario

WRITTEN SUBMISSIONS BY

507417 Ontario Inc., Willis Brazolot & Co. Inc., ) Lyne Lavergne, Counsel

Dennis Brazolot and Christopher Willis, )

Respondents )

Andrea Smith, Applicant ) Trevor Smith, Representative

[1] The purpose of this Decision is to decide whether the Application is within the Tribunal’s jurisdiction.

[2] The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on August 26, 2009, which alleges that the respondents subjected her to sexual harassment, sexual solicitations and advances, harassment and discrimination because of her sex, and reprisals, all with respect to employment.

[3] The respondents filed a Response on December 8, 2009, which denies the allegations of harassment, discrimination, and reprisal. The respondents also filed a Request for an Order During Proceedings on February 2, 2010, which requests that the Tribunal dismiss the Application because it is outside the Tribunal’s jurisdiction. Specifically, the respondents state that the applicant was employed and worked in Québec, the alleged incidents occurred more than one year prior to the filing of the Application, and the applicant filed an identical complaint that was dismissed by the Commission des relations du travail (“CRT”) in Québec.

[4] With respect to the first issue, the respondents submit, among other things, that the applicant worked at all relevant times for Willis Brazolot & Co. Inc., which is a federal corporation with its head office and sole place of business in Québec, and never worked in Ontario.

[5] The applicant filed a Reply to the Response and a Response to a Request for an Order on February 22, 2010, which oppose the respondents’ Request.

[6] In her pleadings and her Response to the respondents’ Request, the applicant admits that the workplace is located in Québec, and most of the incidents, including the most serious ones, occurred in Québec and abroad. However, she states that the Tribunal should accept her Application because some of the incidents occurred in Ontario, and Willis Brazolot & Co. Inc. is a subsidiary of 507417 Ontario Inc., which is ultimately responsible for any harassment and discrimination that occurred.

[7] 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.

[8] 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)).

[9] 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.

[10] In DesRoches v. Hardt, [2009 BCHRT 300](https://www.canlii.org/en/bc/bchrt/doc/2009/2009bchrt300/2009bchrt300.html), 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.

[11] 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.

[12] Accordingly, I find that the Tribunal has no jurisdiction over this Application, and it is therefore dismissed. In light of my Decision, it is not necessary to address the other preliminary issues, but I would note that the CRT in Québec did not dismiss the applicant’s complaint for jurisdictional reasons.

Dated at Toronto, this 12^th^ day of April, 2010.

“Signed By”

Ken Bhattacharjee

Vice-chair