HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Amany Hanna
Applicant
-and-
A and 2M Drugs Limited and Amir Besada
Respondents
INTERIM DECISION
Adjudicator: Naomi Overend
Indexed as: Hanna v. A and 2M Drugs Limited
[1] The applicant filed this Application on June 14, 2011, under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”), alleging discrimination in employment on the ground of family status, marital status and reprisal.
[2] The Tribunal has not yet delivered the Application to the respondent. The purpose of this Interim Decision is to address whether the Application should be dismissed at this preliminary stage because it is outside the Tribunal’s jurisdiction.
[3] Rule 13.2 of the Tribunal’s Rules of Procedure states that where it appears to the Tribunal that an Application is outside its jurisdiction, it shall, prior to sending the Application to the respondent, issue a Notice of Intention to Dismiss the Application. The Notice is only sent to the applicant, and requires the applicant to file written submissions.
[4] On August 3, 2011, the Tribunal Registrar sent a Notice of Intent to Dismiss (NOID) to the applicant that noted the Application appeared to be outside of the Tribunal’s jurisdiction because it failed to identify any specific acts of discrimination allegedly committed by the respondents named in the Application based on any of the grounds listed in the Code, including reprisal. The Tribunal invited the applicant to provide written submissions on whether the Application is within the Tribunal’s jurisdiction. The applicant filed her submissions on August 29, 2011.
[5] The applicant states in the narrative of the Application that she works as a pharmacist for the respondents. She alleges that the personal respondent is in a conflict with her husband and this conflict resulted in the respondents “treating her badly” in her work environment.
[6] The Supreme Court of Canada has confirmed that the definition of marital status in s. 10 the Code encompasses the identity of an applicant’s spouse, as well as the applicant’s marital status (e.g., married or divorced): see [B v. Ontario (Human Rights Commission), 2002 SCC 66, [2002] 3 S.C.R. 403](https://www.minicounsel.ca/scc/2002/66). Accordingly, the allegations described by the applicant appear to fall within the prohibition against marital status discrimination in employment set out in s. 5 of the Code.
[7] On the face of the allegations, there is nothing that would indicate that the respondents’ actions were the result of the applicant’s family status, which is defined in s.10 of the Code as “the status of being in a parent and child relationship.” Likewise, on the face of the allegations, the applicant has not set out reprisal. Section 8 of the Code states:
Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal.
[8] To successfully make out a claim of reprisal, the applicant must demonstrate that she experienced reprisal for:
claiming or enforcing a right under the Code;
instituting or participating in proceedings under the Code:, or
refusing to infringe the right of another person.
[9] An application will only be dismissed at a preliminary stage, before it is served on the respondents, if it is “plain and obvious” on the face of the application that it does not fall within the Tribunal’s jurisdiction. A decision to continue to deal with an application is not a final decision regarding the Tribunal’s jurisdiction in respect of the application.
[10] On the face of the Application and response to the NOID, the applicant appears to allege differential treatment by the respondents on the basis of marital status. As such, it is not plain and obvious that the subject matter of the Application is not within the Tribunal’s jurisdiction. The Tribunal will continue to process the Application.
[11] A copy of the revised Application, this Interim Decision and the submissions filed by the applicant in response to the NOID will be sent to the respondents. The respondents are directed to file a full Response to the Application, which could include submissions on the issue of jurisdiction.
[12] I am not seized of this matter.
Dated at Toronto, this 19th day of September, 2011.
“Signed by”
Naomi Overend
Vice-chair