HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Donald Osmun
Applicant
-and-
ING Engineering Inc. and Ian Glenn
Respondents
INTERIM DECISION
Adjudicator: Ken Bhattacharjee
Date: May 2, 2011
Citation: 2011 HRTO 826
Indexed as: Osmun v. ING Engineering
1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, on January 4, 2011, which alleged that the respondents discriminated against him with respect to employment.
2The respondents filed a Response on March 7, 2011, which denied the allegations of discrimination. The respondents also requested that the Tribunal dismiss the Application because it is outside its jurisdiction, or alternatively, defer consideration of the Application pending the conclusion of an Employment Standards proceeding at the Ministry of Labour.
3The applicant filed a Reply on April 6, 2011, which denied that his Application was outside this Tribunal’s jurisdiction, and opposed the respondents’ Request to defer consideration of his Application.
4The first issue to address is whether the Application is within this Tribunal’s jurisdiction.
5The respondents submitted that the Application is outside this Tribunal’s jurisdiction for two reasons. First, the employment contract between the applicant and the organization respondent was to be performed in New Brunswick, not Ontario. Second, the organization respondent’s work is primarily concerned with flying and maintaining Unmanned Aerial Vehicles (“UAVs”) on behalf of the Department of National Defence (“DND”), and therefore falls under federal jurisdiction.
6The applicant submitted that the Application is within this Tribunal’s jurisdiction because the organization respondent does not have a contract to operate UAVs with the DND, does not operate airports, aerodromes or airlines, and does not transport anything by air. He did not address the respondents’ submission that his employment contract was to be performed outside Ontario.
7In my view, the jurisdiction question cannot be determined without full written submissions and supporting documentation from the parties.
8With respect to the respondents’ first argument, the parties should address the test set out by the British Columbia Human Rights Tribunal (“BCHRT”) in DesRoches v. Hardt, 2009 BCHRT 300, which has been adopted by this Tribunal. See, for example, Cash v. Stryker Canada, 2009 HRTO 1738, and Smith v. 507417 Ontario, 2010 HRTO 802.
9In DesRoches, supra, the BCHRT held that the employment in issue must have a "sufficient connection" to the province, and that some of the relevant factors to consider are whether the employer's place of business was in the province, the employee's residence and usual place of employment was in the province, and the employee’s terms of employment required her to work both in and out of the province.
10The parties should also file any supporting documentation, including but not limited to the employment contract between the applicant and the organization respondent.
11With respect to the respondents’ second argument, the parties should address the test set out in various cases of this Tribunal involving aerodromes, aircrafts, or lines of transportation. See, for example, Edwards v. American Airlines, 2011 HRTO 129, and Macyshyn v. Grada, 2011 HRTO 378.
12The parties should also file any supporting documentation, including but not limited to the organization respondent’s annual report, descriptions of the organization’s work, and a link to the organization respondent’s website, if any.
13The Tribunal therefore directs the respondents to deliver to the applicant and file with the Tribunal written submissions and supporting documentation on the jurisdiction issue within two weeks of the date of this Interim Decision.
14The Tribunal directs the applicant to deliver to the respondents and file with the Tribunal written submissions and supporting documentation in response within four weeks of the date of this Interim Decision.
15The Tribunal will address the deferral issue, if necessary, after it has addressed the jurisdiction issue.
16I am not seized of this matter
Dated at Toronto, this 2nd day of May, 2011.
”signed by”____________
Ken Bhattacharjee
Vice-chair