Thomas v. Siemens Canada, 2011 HRTO 503

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jason Thomas Applicant

-and-

Siemens Canada Limited, Don Wilson, Valerie Pawlick, Tyler Soldan, Mark Breau, Brett Matthieson, Bill Hughes, Mason Shipka, Ian Tang, Se Jin Park, Hetal Joshi, Artur Palowski, Sathiy Satkunanatharajah and Vasantharoopan Balasingham Respondents

DECISION

Adjudicator: Jay Sengupta Date: March 11, 2011 Citation: 2011 HRTO 503 Indexed as: Thomas v. Siemens Canada

APPEARANCES

Jason Thomas, Applicant ) Did not appear

Siemens Canada Limited, Don Wilson, Valerie Pawlick, Tyler Soldan, Mark Breau, Brett Matthieson, Bill Hughes, Mason Shipka, Ian Tang, Se Jin Park, Hetal Joshi, Artur Palowski, Sathiy Satkunanatharajah and Vasantharoopan Balasingham, Respondents ) Andre Nowakowski, Counsel / Dean Novak, Counsel

1This is an Application filed on June 4, 2009 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”). The Application alleges reprisal as well discrimination and harassment in the area of employment on the basis of race, colour, creed, sex, sexual harassment, sexual orientation, family status and marital status.

2The applicant alleges that he was employed by the corporate respondent, Siemens Canada Limited, as a service technician working out of its Brampton, Ontario office. He states that the service work was performed throughout Canada and internationally. During a company training event held in Edmonton, Alberta, he alleges he was subjected to treatment that amounts to a violation of the Code by co-workers. He also alleges that he was bullied and coerced out of his job.

3In his Application, the applicant named 13 individual respondents, eleven of whom live and work in Alberta, and his now former employer, Siemens Canada Limited. He alleges that he could not go to his employer with his concerns about what took place because they were “involved in this cruel behaviour and in poisoning (his) environment”. It is not clear from the documents to whom the applicant is referring to in the above statement.

4The respondents have not yet filed a Response. Instead, they filed a Request for Order During Proceedings, (Request) seeking dismissal on the grounds that the Tribunal lacks the jurisdiction to deal with this Application.

5In a previous Interim Decision, 2009 HRTO 1780, the Tribunal sought additional submissions from the parties on the respondents’ Request.

6In the Request, the respondents argued that because the events that led the applicant to file the Application are alleged to have taken place in Alberta, the Tribunal lacks jurisdiction. In the alternative, they argued that both Alberta and Ontario have jurisdiction and the common law doctrine of forum non conveniens would favour the Tribunal ceding jurisdiction to Alberta given that the applicant works in both Alberta and Ontario, the events occurred in Alberta and the majority of the parties are based in Alberta. In the further alternative, if the Tribunal takes jurisdiction, the respondents seek removal of the personal respondents, arguing that the factors outlined in Persaud v. Toronto District School Board, 2008 HRTO 31, favour removal.

7In his Response to the Request, the applicant submits that the Tribunal has jurisdiction as the substance of the Application concerns events that arise out of his employment and that employment was based in Ontario. He also argues that the personal respondents ought not to be removed as parties to the Application as he intends to seek remedies against them personally, specifically a letter of apology from each of them. He filed his own Request to amend his Application to include that amended remedy as against the personal respondents. The respondents opposed this Request.

8The Tribunal then received further submissions from the parties. The respondents renewed their Request for dismissal, and pointed to human rights complaints filed with the Alberta Human Rights Commission by the applicant with respect to the same matters that are the subject of the current Application. The applicant then sent in materials in which he indicated that he had withdrawn the Alberta human rights complaints.

9Pursuant to a Case Assessment Direction, a half day hearing was scheduled for oral submissions. One week before the scheduled hearing, the applicant filed a further Request seeking an extension of time to file materials and to adjourn the hearing. The respondents opposed this Request.

10The applicant’s Requests were denied and an Interim Decision, 2010 HRTO 1889, was issued notifying the parties that the hearing would proceed as scheduled and if the applicant failed to attend, a decision on the respondents’ Request could be made based on the materials in the Application file and any evidence and submissions provided by the respondents or the Application may be dismissed as abandoned.

11The applicant did not attend the hearing. The respondents were present and represented by counsel. For the reasons that follow, the Application is dismissed.

Jurisdiction of the Tribunal

12The respondents’ submissions did not appear to take issue with or to refute two allegations made in his materials by the applicant: that his employment relationship with the corporate respondent was entered into in Ontario and that, despite the national and international travel required by his job, his home base for his employment was in Ontario. There is also no dispute between the applicant and the corporate respondent that the reason for his attendance in Alberta in December, 2008 related to his employment with the respondent.

13At the hearing, the respondents argued that Alberta has exclusive jurisdiction over the subject matter of the Application. In support of this position, the respondents point to the sections 92(13) and 92(16) of The Constitution Act, 1867, 30 & 31 Victoria, c.3 (U.K.), as the source of the right of provinces to legislate in respect of human rights. Those subsections deal with “property and civil rights” and “matters of a merely local or private nature” respectively. The respondents argued that a province has exclusive jurisdiction over human rights complaints that arise within its boundaries and that two provinces cannot simultaneously exercise jurisdiction over the same matter.

14The respondents did not seek to pursue the alternative argument originally advanced regarding concurrent jurisdiction. I have some doubt about the applicability of the common law doctrine of forum non conveniens to the situation at hand, given that the Tribunal is a statutory body that derives its mandate from the Code.

15The respondents argued that the Application has a “real and substantial” connection to Alberta and pointed me to the tests developed by the courts in Morguard Investments Ltd. v. De Savoye, [1990] 2 S.C.R. 1077; Muscutt v. Courcelles, 2002 CanLII 44957 (ON C.A.); Van Breda v. Village Resorts Limited, (2010) 2010 ONCA 84, 98 O.R. (3d) 721 (C.A.); and Black v. Breeden, 2010 ONCA 547 with some modifications given that the jurisdiction of the Tribunal is determined by the provisions of the Code.

16The argument presented by the respondents is that the application of the real and substantial connection test requires an inquiry into the connection between the applicant and the respondents and Alberta. Although not explicitly addressed, I presume that they would concede that the test also requires an inquiry into the connection between the parties and Ontario.

17Although the employment relationship between the applicant and the corporate respondent is governed by Ontario human rights law, it is not apparent to me that the events that took place in Alberta that gave rise to this Application are properly before the Tribunal.

18The Code protects against harassment in the workplace by “another employee”. The question is whether employees who live and work in or out of Alberta, for a company whose head office is in Ontario, can be liable in Ontario when they come into contact in Alberta with an employee for the same company who lives and works out of Ontario. Although the answer is not without doubt, I find that the “employees” subject to the duties under the Code do not include the individual respondents who reside and work in Alberta, in these circumstances.

19The allegations made by the applicant regarding harassment by co-workers at the Alberta training session all took place in Alberta and are, therefore, outside the jurisdiction of this Tribunal.

20The applicant alleges that he could not go to the employer because they were “involved in this cruel behaviour and in poisoning (his) environment”. That statement suggests that he did not inform the employer of the allegations of discrimination and harassment. Also, as previously stated, it is not clear to whom the applicant refers as being involved in the alleged conduct and he did not attend the hearing to provide the necessary clarification. He has also not alleged that any of the individuals harassing him were members of management.

21He states that he was bullied and coerced out of his job. It is unclear who bullied and coerced him, when they did so and where the bullying and coercion occurred. As the applicant did not attend the hearing to clarify, I am left only with his written materials.

22There does not seem to be any allegation that management of the company was involved in acts of harassment and discrimination independent of the specific events outlined that took place in Alberta; nor is there an allegation that company management failed to respond to the harassment as they would not have been aware of it given the applicant’s own statement that he “could not go to the company” about it.

23If that is so, and there is nothing in the written materials that suggest that it is not, then there are no allegations against the employer independent of the events that took place exclusively in Alberta and that are outside of the jurisdiction of the Tribunal.

24Accordingly, the Application is dismissed.