Bihari v. Holiday Retirement, 2011 HRTO 372

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Fernando Bihari

Applicant

-and-

Holiday Retirement Corp., Decision Toolbox Inc., Jennifer Roberts and Daryl Lashambe

Respondents

A N D B E T W E E N:

Andrea Bihari

Applicant

-and-

Holiday Retirement Corp., Decision Toolbox Inc., Jennifer Roberts and Daryl Lashambe

Respondents

INTERIM DECISION

Adjudicator: Jay Sengupta

Date: February 22, 2011

Citation: 2011 HRTO 372

Indexed as: Bihari v. Holiday Retirement

1The purpose of this Decision is to decide whether these Applications, filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), and consolidated at the request of the respondents in a previous Interim Decision, 2011 HRTO 229, are within the Tribunal’s jurisdiction in respect of the respondent, Decision Toolbox Inc. (“Decision”).

2In addition to its Response, Decision, a recruiting company located in Irvine, California, has filed a Request for Order During Proceedings seeking dismissal of the Applications against it. It argues that the Applications are outside the jurisdiction of the Tribunal because it operates entirely outside of Ontario, does not have an office or employees in Ontario and all decisions about job applicants are made outside of Ontario.

3Interestingly, there is no similar request that the Application be dismissed as against the personal respondent, Jennifer Roberts, described as “Decision’s Recruitment and Channel Partner”, for the same reason.

4The applicants have, at the direction of the Tribunal, submitted a written response to Decision’s Request. They argue that both the phone and in person interviews they participated in related to positions as Co-Managers of a facility owned by the respondent, Holiday Retirement Corp., and located in Peterborough Ontario, although they understood there was a possibility that they could, if successful, be relocated elsewhere. They point out that they were in Ontario during both interviews, even though the respondent Roberts was speaking to them by phone from California.

5Having reviewed the materials submitted by the parties, Decision’s Request for early dismissal of the Applications on the basis that they are outside the Tribunal’s jurisdiction is dismissed.

6The Tribunal has considered this issue in Arenson v. Law School Admission Council, 2009 HRTO 38 where the Tribunal adopted the reasoning of the British Columbia Human Rights Tribunal in Carlisle v. Law School Admission Council, 2004 BCHRT 353. In Arenson, the Tribunal found that it had jurisdiction to hear the Application because, as in Carlisle, while decisions may have been made outside the province, they were implemented inside it and the impact of the decisions were felt by the applicants in those Applications within the province.

7While the personal respondent, Jennifer Roberts, in her capacity as a Recruitment and Channel Partner with Decision, may have been outside of the province while conducting the pre-screening phone interview of the applicants, she and Decision were acting with respect to an employment opportunity based in Ontario, the applicants were themselves based in Ontario and any ultimate decisions regarding their employment were implemented in Ontario.

8Accordingly, the Request for Order During Proceedings is dismissed.