Michon v. Pelletier Auto Body and Powder Coating, 2011 HRTO 791

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Scott Michon

Applicant

-and-

Pelletier’s Auto Body and Powder Coating,

Tom Pelletier and Roy Pelletier

Respondents

INTERIM DECISION

Adjudicator: Brian Eyolfson

Date: April 20, 2011

Citation: 2011 HRTO 791

Indexed as: Michon v. Pelletier Auto Body and Powder Coating

WRITTEN SUBMISSIONS

Scott Michon, Applicant ) Margaret Buffington, Representative

Pelletier’s Auto Body and Powder )

Coating, Tom Pelletier and ) Bonnie Pelletier, Counsel

Roy Pelletier, Respondents )

INTRODUCTION

1This Application was filed on May 28, 2010, under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), and alleges discrimination on the basis of disability in employment.

2In their Response to the Application, dated November 7, 2010, the respondents request that the Tribunal dismiss the Application on the basis that the issues in the Application are within exclusive federal jurisdiction.

3The respondents made an earlier request that the Application be dismissed on the basis that it is within federal jurisdiction. As described below, that request was dismissed by the Tribunal on October 5, 2010, in an Interim Decision, 2010 HRTO 2026.

BACKGROUND

4On July 27, 2010, the respondents filed a Request for Dismissal without Full Response, on the basis that the issues in the Application are within exclusive federal jurisdiction. The respondents submitted that the organizational respondent is located on Fort William First Nation (“FWFN”) and is owned and operated by the individual respondent, Tom Pelletier, who is a member of FWFN and a “status Indian” under the Indian Act, R.S.C. 1985, c. I-5, as amended. The respondents requested a ruling from the Tribunal on jurisdiction, in light of section 88 of the Indian Act, which states as follows:

Subject to the terms of any treaty and any other Act of Parliament, all laws of general application from time to time in force in any province are applicable to and in respect of Indians in the province, except to the extent that those laws are inconsistent with this Act or the First Nations Fiscal and Statistical Management Act, or with any order, rule, regulation or law of a band made under those Acts, and except to the extent that those provincial laws make provision for any matter for which provision is made by or under those Acts.

5On August 18, 2010, the applicant filed a Response to the respondents’ Request for Dismissal. The applicant submitted that he initially contacted the Canadian Human Rights Commission (the “CHRC”) to file a complaint against the respondents. He completed the intake process, but was subsequently advised, by letter dated June 18, 2010, from the CHRC, that it does not appear that the matters he raises are related to a federally-regulated body. The CHRC advised that it was unable to assist him and suggested that he may wish to bring his concerns to the attention of this Tribunal. The applicant attached a copy of the letter from the CHRC.

6In dismissing the respondents’ Request, the Tribunal held as follows:

Pursuant to section 88 of the Indian Act, all general provincial laws are applicable to “Indians” within the meaning of the Indian Act, absent particular exceptions. In the present case, the respondents have not pointed to the terms of any treaty or any other “Act of Parliament”, including the Indian Act and the First Nations Fiscal and Statistical Management Act, 2005, c. 9, or any order, rule, regulation or law of a band made under those Acts, that would preclude the application of the Code to the respondents. Based on the materials before me, it appears that the Application is within the jurisdiction of the Tribunal. The respondents’ Request is dismissed.

7The Tribunal directed the respondents to file a full Response.

THE RESPONDENTS’ CURRENT REQUEST

8In email correspondence to the applicant and the Tribunal, dated November 3, 2010, the respondents submit that they are status Indians and members of FWFN, and that the elected Band Council takes the position that they are the governing body within FWFN and receive the authority to do so under the federal Indian Act. The respondents attached a copy of a FWFN Band Council Resolution (“BCR”), dated October 27, 2010, which states as follows:

Whereas FWFN elected council has the authority to govern within the FWFN all matters relating to business and the operation of businesses within the FWFN;

Whereas Pelletier’s Auto Body is a duly recognized business located on the FWFN, therefore be it resolved that the Pelletier’s Auto Body is located within the jurisdiction of the Fort William Elected Council;

Whereas Tom Pelletier and Roydon Pelletier are Band members of the Fort William First Nation who are status Indians under the Indian Act and are permitted to carry on business on the FWFN;

Further, be it resolved that Section 88 of the Indian Act regulates the FWFN the authority to make bylaws and regulations with regard to the operation and conduct of all businesses within the FWFN.

Further, be it resolved that we are the governing and regulating authority for any and all issues pertaining to business on FWFN which precludes any interference from the Ontario Human Rights Tribunal.

Finally be it resolved that The Elected Band Council of FWFN authorizes Tom Pelletier and Roydon Pelletier to conduct their business known as Pelletier’s Auto Body.

9In their November 7, 2010 Response to the Application, the respondents refer to the above BCR and submit that FWFN is the governing body which regulates all duly authorized businesses within FWFN. They request that the Tribunal dismiss the Application on the basis that it is within exclusive federal jurisdiction.

10On February 1, 2011, the applicant filed a Response to a Request for an Order. The applicant submits, in part, that he filed his Application with the Tribunal five months before the BCR was signed, and the BCR cannot apply retrospectively.

DECISION

11It appears that the respondents’ current Request that the Application be dismissed on the basis that the issues in the Application are within exclusive federal jurisdiction is, in effect, a Request that the Tribunal reconsider its October 5, 2010 Interim Decision concerning jurisdiction.

12Pursuant to Rule 26.1 of the Tribunal’s Rules of Procedure, any party may request reconsideration of a final decision of the Tribunal within 30 days of the date of the decision. Rule 26.5 provides that a Request for Reconsideration will not be granted unless the Tribunal is satisfied that:

(a) there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier; or

(b) the party seeking reconsideration was entitled to but, through no fault of its own, did not receive notice of the proceeding or a hearing; or

(c) the decision or order which is the subject of the reconsideration request is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance; or

(d) other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions.

13Assuming the respondents’ reconsideration Request is properly made in light of Rule 26.1 of the Tribunal’s Rules, and leaving aside the question of whether or not a First Nation can preclude provincial human rights jurisdiction over a business located within its territory through the passage of a BCR, it is clear that the allegations in the Application pre-date the existence of the BCR. The applicant indicates in his Application that the date of the last event was February 22, 2010, when his employment was terminated. As such, the parties were not subject to the October 27, 2010 BCR, during the time period relevant to the issues in the Application. Further, the BCR came into existence only after the Tribunal’s earlier Interim Decision with respect to jurisdiction was issued. In these circumstances, I agree with the applicant’s submission that the BCR cannot apply retrospectively.

14I am not satisfied that the respondents have identified that there are new facts or evidence that could potentially be determinative of the case, or that the respondents have met the burden of establishing any of the other threshold criteria justifying reconsideration. The respondents’ current request that the Application be dismissed on the basis that it is within exclusive federal jurisdiction is denied.

15I am not seized.