Marlene Tobin v. Aroland First Nations, 2012 HRTO 2360

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Marlene Tobin

Applicant

-and-

Aroland First Nations

Respondent

DECISION

Adjudicator: Eric Whist

Date: December 18, 2012

Citation: 2012 HRTO 2360

Indexed as: Tobin v. Aroland First Nations

WRITTEN SUBMISSIONS

Marlene Tobin, Applicant ) Self-represented

Introduction

1This is an Application filed on July 17, 2012 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”). The applicant alleges that she was discriminated against in respect of employment and contracts on the basis of disability.

2The Application provides only a very brief account of events. It refers to the applicant becoming ill in March 2011, providing doctor’s notes on a monthly basis and then having her job terminated in August 2011 (effective July 17, 2011). The Application refers to the applicant not being able to reach the principal who was not responding to her telephone calls and that “this all took place on a First Nations Reserve”.

3The Tribunal has not yet delivered the Application to the respondent. Rule 13.2 of the Tribunal’s Rules of Procedure states that where it appears to the Tribunal that an Application is outside its jurisdiction it shall, prior to sending the Application to the respondent, issue a Notice of Intention to Dismiss the Application (NOID).

4The Tribunal sent the applicant a NOID on September 10, 2012. The NOID indicates that it appears that the Application is outside the Tribunal’s jurisdiction because the respondent, Aroland First Nations, appears to fall under federal jurisdiction. The NOID directs the applicant to provide written submissions as to why her Application is within the Tribunal’s jurisdiction.

5On October 10, 2012 the applicant provided brief written submissions. She submits that she was dismissed while she was off sick and is not sure to whom she should be applying to make her “application for wrongful dismissal”.

DECISION

6An Application will only be dismissed at a preliminary stage, for example, before it is served on a respondent, if it is “plain and obvious” on the face of the Application that it does not fall within the Tribunal’s jurisdiction. See, for example, Masood v. Bruce Power, 2008 HRTO 381).

7This Application is dismissed as I find it plain and obvious that it falls under federal rather than provincial jurisdiction.

8The applicant names Aroland First Nations as the respondent and refers to a principal having a role in the events leading to the termination of her employment, the event that is clearly central to the Application. The applicant also refers to all events taking place on the Aroland First Nations. I am prepared to find, based on this information, that the applicant was employed (it appears on contract), in the provision of educational services (in some capacity) and specifically on the Aroland First Nations. While it appears she was employed by the named respondent, as claimed, it is possible that she was employed by an unnamed first nations educational authority.

9Section 91(24) of the Constitution Act, 1867, gives jurisdiction to the Federal Government over “Indians and lands reserved for Indians”. However, Section 93 of the Constitution Act provides the provinces with the exclusive right to make laws in relation to education. That said, I am satisfied that the federal government has exercised jurisdiction over First Nations education through its authority under section 91(24) of the Constitution Act and the Indian Act R.S.C., 1985, c. I-5 , which includes a number of provisions directly related to education.

10I am also satisfied that the case law establishes that allegations of discrimination related to employment in the provision of educational services on First Nations Reserves have been dealt with under the Canadian Human Rights Act R.S.C., 1985, c. H-6. See Bernard v. Waycobah Board of Education, 1999 CanLII 1914 (CHRT); Bignell-Malcolm v. Ebb and Flow Indian Band, 2008 CHRT 3 and Hamilton v. Driftpile First Nation Band, 2002 FCT 405. I also note Nash v. Naotkamegwanning-Northwest Angle Education Authority, 2012 HRTO 42, which is a case in which an applicant filed an Application with the Tribunal naming a First Nations Educational Authority as the respondent. This was a case in which the applicant, who alleged discrimination with respect to employment, also filed a contemporaneous complaint based on identical factual allegations with the Canadian Human Rights Commission (“CHRC”). The CHRC accepted the complaint which led to the Tribunal’s decision to defer the Application (while noting that the issue of jurisdiction remained outstanding).

11In making the determination that this matter falls under Federal jurisdiction I am mindful that the Tribunal has found that an organizational respondent owned and operated by a private individual located on a First Nations was within the Tribunal’s jurisdiction (Michon v. Pelletier Auto Body and Powder Coating, 2010 HRTO 2026) and that the issue of jurisdiction over employment on First Nations can be a complicated issue, as is identified by the Supreme Court in NIL/TU,O Child and Family Services Society v. B.C. Government and Service Employees' Union, 2010 SCC 45. However, in my view, the established jurisdiction related to the provision of education on First Nations and the case law related to filing related complaints of discrimination makes it plain and obvious that this matter falls outside the Tribunal’s jurisdiction.

12For these reasons the Application is dismissed.