HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Deanne Diotte
Applicant
-and-
RJ’s Market and Convenience and Angela McCormack
Respondents
DECISION
Adjudicator: Naomi Overend
Date: April 18, 2011
Citation: 2011 HRTO 746
Indexed as: Diotte v. RJ’s Market and Convenience
1The applicant filed this Application under s. 34 of the Human Rights Code, R.S.O.1990, c. H.19, as amended (the “Code”), alleging harassment and discrimination in employment on the basis of reprisal.
2The Application alleges that the applicant was subject to verbal and physical “harassment” in employment by the individual respondent, who is the deli manager for the corporate respondent. She does not allege this harassment relates to any ground under the Code. She complained about that behaviour to the Ministry of Labour and alleges that subsequently her hours were reduced. This is the basis of the reprisal complaint.
3On February 28, 2011, the Tribunal sent a Notice of Intent to Dismiss (“NOID”) on the basis that the conduct described in the Application did not appear to be reprisal and, therefore, appeared to be outside the Tribunal’s jurisdiction (power to decide). The applicant filed written submissions on March 18, 2011
4With respect to the allegation of 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.
5To 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.
6The applicant approached the Ministry of Labour about allegations that were not based on a ground under the Code. The Code’s harassment provision does not prohibit all comments and conduct that might be described as “harassing,” but rather only those comments or conduct that occur because of a ground listed in the Code. Accordingly, when the applicant went to the Ministry of Labour, she was not claiming or enforcing a right under the Code, nor was she instituting or participating in proceedings under the Code. Any retaliatory conduct that occurred after her complaint is, therefore, not reprisal.
7Given that the applicant has failed to establish that the alleged conduct was reprisal, as defined by the Code, the Tribunal has no jurisdiction over this Application. The Application is, therefore, dismissed.
Dated at Toronto, this 18^th^ day of April, 2011.
”signed by”___
Naomi Overend
Vice-chair