Dawn Giovanelli v. Whitecourt Oil Corporation, 2011 HRTO 2324

Human Rights Tribunal of Ontario

BETWEEN:

Dawn Giovanelli Applicant

-and-

Whitecourt Oil Corporation Respondent

INTERIM DECISION

Adjudicator: Naomi Overend Date: December 30, 2011 Citation: 2011 HRTO 2324 Indexed as: Giovanelli v. Whitecourt Oil Corporation

1The 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 record of offences.

2The 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.

3Rule 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 ("NOID"). The NOID is only sent to the applicant, and requires the applicant to file written submissions.

4On November 21, 2011, the Tribunal Registrar sent a Notice of Incomplete Application and NOID to the applicant which noted that the Application appeared to be incomplete as well outside of the Tribunal's jurisdiction because it failed to identify any specific incidents of discrimination/harassment allegedly committed by the respondent named in the Application based on any of the grounds listed in the Code, including record of offences.

5The Tribunal invited the applicant to provide written submissions on whether the Application is within the Tribunal's jurisdiction by no later than December 12, 2011. The applicant did not file submissions on jurisdiction, but did attempt to provide a response to those portions of the Application that were previously incomplete.

6The applicant states in the narrative of the Application that she works in a company that is owned by a husband and wife whose marriage is breaking down. She cites several allegations of what she describes as harassment, which are unrelated to any ground under the Code. The Tribunal does not adjudicate general claims of unfairness or harassment. There must be a nexus between the allegation of unfairness and/or harassment and a ground under the Code. In the absence of such a nexus, no violation of the Code can be found.

7Having said that, the additional material provided by the applicant alleges that she was called "bitch" on more than one occasion. She also alleges that she was advised by one of the co-owners that the other co-owner called the applicant an "ugly black bitch" several times.

8An 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: see Rule 13.5 of the Tribunal's Rules.

9On the face of the Application and response to the NOID, the applicant appears to allege differential treatment and/or harassment by the respondent on the basis of race and sex. 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.

10In accordance with Rule 13.4 of the Tribunal's Rules, a copy of the revised Application, Notice of Application, the correspondence between the applicant and the Tribunal regarding the Notice of Incomplete Application and NOID letter, and this Interim Decision will be sent to the respondent. The respondent is directed to file a full Response to the Application in accordance with the Rules. The Response may include submissions on the issue of jurisdiction.

11I am not seized of this matter.