HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Cecilia Basic

Applicant

-and-

Altis Human Resources (Ottawa) Inc., Linda Tougas HR Consulting Inc., and Linda Tougas

Respondents

DECISION

Adjudicator: Ken Bhattacharjee

Date: August 25, 2011

Citation: 2011 HRTO 1598

Indexed as: Basic v. Altis Human Resources (Ottawa)

WRITTEN SUBMISSIONS BY

Cecilia Basic, Applicant ) Self-represented

Altis Human Resources (Ottawa) Inc., ) Cindy Spence, Representative

Respondent )

Linda Tougas HR Consulting Inc. ) Dan Palayew, Counsel

and Linda Tougas, Respondents )

INTRODUCTION

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

BACKGROUND

2The applicant resides in Winnipeg, Manitoba. In 2008 and 2009, she was a probationary employee with the Public Health Agency of Canada (“PHAC”), which is a federal government agency. The PHAC has offices in Winnipeg, where the applicant worked and was directly supervised by a Winnipeg-based manager.

3During her employment, the applicant asked her manager to accommodate alleged needs related to her family status. In considering the applicant’s request, her manager consulted with and received advice from Linda Tougas, a Senior Labour Relations Advisor based in Ottawa.

4Ms. Tougas was an independent contractor, who, during the applicant’s probationary period, initially worked with the PHAC through a contract with her own firm, Linda Tougas HR Consulting Inc., and later through a sub-contract with Altis Human Resources (Ottawa) Inc. (“AHRO”).

5On June 12, 2009, the PHAC terminated the applicant’s employment.

6On February 25, 2011, the applicant filed a complaint with the Canadian Human Rights Commission, which alleged that the PHAC discriminated against her because of her family status.

7Specifically, she alleged that her manager and other individuals at PHAC denied her request for accommodation, harassed her, and then terminated her employment to cover up the discrimination against her. She also alleged that Ms. Tougas, while on contract with AHRO, assisted her manager and a Winnipeg-based Labour Relations Advisor in their efforts to prove that she was not meeting her probationary requirements.

8On March 25, 2011, the applicant also filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), with this Tribunal, which alleged that Ms. Tougas and AHRO discriminated against her with respect to services and employment because of her family status.

9Specifically, the applicant alleged that Ms. Tougas advised her manager to deny her request for accommodation, and that Ms. Tougas, while on contract with AHRO, “guided” the discrimination that led to the termination of her employment.

10On May 24, 2011, AHRO filed a Response, which denied the allegations of discrimination. On June 7, 2011, Linda Tougas HR Consulting Inc. and Ms. Tougas filed a Response, which requested an early dismissal of the Application on the basis that the issues in dispute are within exclusive federal jurisdiction.

11On July 4, 2011, the applicant filed a Reply and a Response to a Request for an Order, which maintained that her Application is within the jurisdiction of this Tribunal.

ANALYSIS

12Rule 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.

13The 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)).

14A 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.

15In DesRoches v. Hardt, 2009 BCHRT 300, the British Columbia Human Rights Tribunal 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 were in the province, and the employee’s terms of employment required her to work both in and out of the province. This Tribunal has adopted the above test in several cases. See, for example, Cash v. Stryker Canada, 2009 HRTO 1738 and Smith v. 507417 Ontario, 2010 HRTO 802.

16Linda Tougas HR Consulting Inc. and Ms. Tougas submitted that the Application falls exclusively under federal jurisdiction because the PHAC is a federal government agency, and Ms. Tougas’s role of Labour Relations Advisor to PHAC was integral, vital and essential to PHAC’s operations.

17The applicant, on the other hand, submitted that her Application falls within the jurisdiction of this Tribunal because Ms. Tougas’s consulting firm and AHRO are incorporated in Ontario, and, in addition to their public sector work, are private sector employers and service providers in Ontario. She also submitted that AHRO is not listed as a member of the Federal Contractors Program.

18In my view, the applicant’s employment did not have a sufficient connection to Ontario. Her employer’s place of business was outside Ontario, and her residence and usual place of employment were outside Ontario. In addition, although the applicant alleged that discriminatory advice and guidance from Ms. Tougas originated in Ontario, all the specific incidents of harassment and discrimination are alleged to have occurred in Manitoba in a federal government agency. The fact that Ms. Tougas’s consulting firm and AHRO are incorporated and operate in Ontario is not sufficient to bring the Application within the jurisdiction of this Tribunal.

19Furthermore, the fact that the applicant also checked off “services” as an area of discrimination in her Application does not change the above analysis.

ORDER

20Accordingly, I find that the Tribunal has no jurisdiction over this Application, and it is therefore dismissed.