Marsha Bentley v. Consulate General of Barbados // Invest Barbados, 2010 HRTO 89

Human Rights Tribunal of Ontario

Between:

Marsha Bentley Applicant

-and-

Consulate General of Barbados // Invest Barbados Respondent

Interim Decision

Adjudicator: Sheri Price Date: January 15, 2010 Citation: 2010 HRTO 89 Indexed as: Bentley v. Consulate General of Barbados

BACKGROUND

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19 (“the Code”) which alleges that the respondent(s) discriminated against the applicant in respect of employment on the basis of sex. Specifically, the applicant alleges that her employment was terminated because of her pregnancy and/or her maternity leave.

2On October 29, 2009, the Tribunal sent the applicant a Notice of Intent to Dismiss the Application on the basis that the Application appeared to be outside the Tribunal’s jurisdiction. Specifically, the Notice indicated that the respondent appears to be a government department or agency over which the Tribunal does not have jurisdiction. The Notice directed the applicant to file written submissions regarding why she believes her Application is within the Tribunal’s jurisdiction. The applicant did not file submissions in response to the Notice.

DIPLOMATIC OR STATE IMMUNITY

3The Notice of Intent to Dismiss appears to have been issued on the basis that the respondent (or one of the respondents) is the Consulate General of Barbados which is based in Toronto, Ontario. Barbados, of course, is a sovereign nation, over which the Tribunal does not have jurisdiction.

4The Application has not been served on the respondent(s) by the Tribunal and the respondent(s) have therefore not had an opportunity to make submissions with respect to whether the Application is within the Tribunal’s jurisdiction.

5Although there is certainly a question about whether this Application is within the Tribunal’s jurisdiction to decide, it is not plain and obvious at this stage of the proceedings and on the face of this Application that the Application is outside the Tribunal’s jurisdiction. First, there is no provision in the Code which explicitly states that applications against embassies or consulates are outside of the Tribunal’s jurisdiction, as there is, for example, in section 3(3) of the Employment Standards Act, 2000, S.O. 2000, c. 41, as amended.

6Moreover, it is not entirely clear whether the applicant was employed by a sovereign nation or by some other corporate entity. Documents in the file indicate that the applicant was hired as a secretary with the Consulate General of Barbados at Toronto/Barbados International Business Promotion Corporation. The Application contains several letters to the applicant from the Barbados Investment & Development Corporation hiring her into the position in question, and extending her contract. The Barbados Investment & Development Corporation entity appears to have its own letterhead and is based in Toronto, Ontario. Even if I were to find that that employment of the applicant by the Consulate General of Barbados was not within the Tribunal’s jurisdiction, it is not clear at this stage whether employment by Invest Barbados would be similarly outside the Tribunal’s jurisdiction.

7Accordingly, the Tribunal will continue to deal with the Application. The Application will be delivered to the respondent(s) and for a Response (Form 2) in accordance with the Rules. If the respondent(s) takes the position that one or both are exempt from the Code or otherwise outside the Tribunal’s jurisdiction on the basis of some form of state or diplomatic immunity, written submissions should be provided to the Tribunal in support of that position. It is not necessary to file a full Response where a respondent asserts the application is outside the Tribunal’s jurisdiction, Masood v. Bruce Power, 2008 HRTO 381. This is not a final decision regarding the Tribunal’s jurisdiction in respect of this Application.