Jackson v. BMO Nesbitt Burns, 2011 HRTO 1060

Human Rights Tribunal of Ontario

B E T W E E N:

Jennifer Jackson

Applicant

-and-

BMO Nesbitt Burns, Joseph Fanaki and Jason Battista

Respondents

INTERIM DECISION

Adjudicator: Alan G. Smith

Date: June 2, 2011

Citation: 2011 HRTO 1060

Indexed as: Jackson v. BMO Nesbitt Burns

WRITTEN SUBMISSIONS BY

Jennifer Jackson, Applicant ) Self-Represented

INTRODUCTION

1This is an Application filed on April 11, 2011, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in employment by the personal respondents and respondent employer. It is clear from the Application that the respondent employer, BMO Nesbitt Burns, carries on business as an investment/securities company and not as a bank.

2The purpose of this Interim Decision is to determine whether the Tribunal has jurisdiction over the Application. The jurisdictional issue was identified by the Tribunal in a Notice of Intent to Dismiss (“NOID”), which was sent to the applicant on April 21, 2011.

3The jurisdictional issue identified by the Tribunal in the NOID was whether the employer respondent was a federally-regulated employer and hence outside the jurisdiction of the Tribunal.

Decision

4On May 10, 2011, the applicant responded to the NOID, pointing out that the employer respondent was a corporation regulated provincially through the Ontario Securities Commission. The applicant also advised that the Canadian Human Rights Commission had declined jurisdiction with regard to the subject matter of her present Application.

5The Code only applies to matters that fall within provincial, rather than federal, jurisdiction. An application will only be dismissed at this stage of the proceedings in all or in part if it is “plain and obvious” on the face of the application that it does not fall within the Tribunal’s jurisdiction.

6Under s. 92(13) of the Constitution Act, 1867 (U.K.), 30 & 31 Victoria, c. 3, the provinces have jurisdiction over the regulation of the investment/ securities industry under the "property and civil rights" head of power.

7In the past, the Tribunal found it had jurisdiction to consider an application made against an investment/securities dealer, even though, as in this Application, the firm was wholly-owned by a federally-regulated bank: see, Rafiq v. Scotia Capital, 2010 HRTO 697.

8Therefore, the Tribunal finds that the Application, which deals with discrimination allegations arising from employment relations between an investment/ securities dealer and an employee, is within its jurisdiction pursuant to section 92 of the Constitution Act, 1867.

9A decision to continue to deal with an application in these circumstances is not a final decision regarding the Tribunal’s jurisdiction in respect to the application (Rule 13.5).

Order

10The Tribunal shall proceed with the processing of the Application. Pursuant to Rule 13.4 of the Tribunal’s Rules of Procedure, the Application, a copy of this Interim Decision, the applicant’s submissions on the jurisdiction issue, and all correspondence between the Tribunal and the applicant on the jurisdiction issue, together with a Notice of Application, will be provided to the respondent.

11I am not seized of this matter.