Hana Abdul v. Canadian Broadcasting Corporation and David McGuffin, 2011 HRTO 813

Human Rights Tribunal of Ontario

Between:

Hana Abdul Applicant

-and-

Canadian Broadcasting Corporation and David McGuffin Respondents

Decision

Adjudicator: Ena Chadha Date: April 21, 2011 Citation: 2011 HRTO 813 Indexed as: Abdul v. Canadian Broadcasting Corporation

1The applicant filed an Application under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on April 5, 2011. The applicant alleges that news coverage carried by the respondent television station was racist.

2On April 7, 2011, the Tribunal issued a Notice of Intent to Dismiss (“Notice”) to the applicant. The Notice advised the applicant that the Application appears to be outside the Tribunal’s jurisdiction because the respondent appears to be a federally-regulated agency, business or service. The Tribunal directed the applicant to provide written submissions by May 7, 2011, addressing the issue of jurisdiction. The Tribunal further advised that it the applicant did not file written submissions by that deadline the Tribunal may make its decision based only on the information in the Application and or may consider the failure to respond as an abandonment of the Application.

3The applicant filed submissions on April 16, 2011, maintaining that she believes the Application is within the Tribunal’s jurisdiction. The applicant indicates that she believes the impugned program was created in Ontario and that since parts of the program were acquired from a non-Canadian agency, the issue of acquired content may be provincial.

4For the reasons that follow, I do not accept the applicant’s arguments and find that the Tribunal has no jurisdiction with respect to this matter.

5The Code only applies to matters that fall within provincial, rather than federal, jurisdiction. The Canadian Human Rights Commission has power to deal with human rights matters that fall under federal jurisdiction. The courts have determined that television broadcasting comes within the legislative authority of the federal government pursuant to section 92(10)(a) of the Constitution Act ,1867, U.K., 30 & 31 Victoria, c. 3, which reads as follows:

In each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subjects next hereinafter enumerated: that is to say…..

10. Local Works and Undertakings other than such as are of the following Classes:

(a) Lines of Steam or other Ships, Railways, Canals, Telegraphs and other Works and Undertakings connecting the Province with any other or others of the Provinces, or extending beyond the Limits of the Province…… [Emphasis added.]

6The courts have found that both the regulation and the content of television and radio broadcasts are within exclusive federal jurisdiction: Irwin Toy Ltd. v. Quebec (Attorney General), 1989 CanLII 87 (SCC), [1989] 1 S.C.R. 927; Re C.F.R.B. and Attorney-General for Canada, 1973 CanLII 788 (ON CA), [1973] 3 O.R. 819 (C.A.); Capital Cities Communications Inc. v. Canadian Radio-Television Commission, 1977 CanLII 12 (SCC), [1978] 2 S.C.R. 141.

7The Application is not within the jurisdiction of this Tribunal because the applicant’s allegations relate to the content of a news program aired by a national television broadcasting service. In conclusion, since the respondent is a federally-regulated enterprise, the Tribunal has no jurisdiction over this matter.

8The Application is dismissed.