Samuel Pervais v. Dilico Anishinabek Family Care, 2012 HRTO 597

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Samuel Pervais

Applicant

-and-

Dilico Anishinabek Family Care

Respondent

INTERIM DECISION

Adjudicator: Naomi Overend

Date: March 22, 2012

Citation: 2012 HRTO 597

Indexed as: Pervais v. Dilico Anishinabek Family Care

1The applicant filed this Application on October 25, 2011, alleging discrimination on the basis of race in employment contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2On January 4, 2012, the Tribunal issued a Case Assessment Direction in which it asked the parties to provide submissions on whether the Application was within the Tribunal’s powers to decide (jurisdiction) in light of the fact that it appeared that the “employment relations in the respondent may be federally regulated.”

3Both the respondent and the applicant filed submissions. While the respondent did not take a firm position on the issue of the Tribunal’s jurisdiction, it did submit that the Canadian Industrial Relations Board (the “Board”) may have assumed jurisdiction over the respondent’s workplace in 2005 on the basis of mistaken findings of fact. It further submits that, subsequent to the Board’s findings, the Supreme Court of Canada, employing a functional test, found that labour relations of two native child welfare agencies fell under provincial jurisdiction, further calling into question the Board’s decision: see NIL/TU,O Child and Family Service Society v. B.C. Government and Service Employees’ Union, [2012] 2 S.C.R. 696, and Communications, Energy and Paperworkers Union of Canada v. Native Child and Family Services of Toronto, 2010 SCC 46, [2010] 2 S.C.R. 737.

4Both the applicant and respondent alerted the Tribunal to the fact that the applicant had filed a complaint based on the same allegations to the Canadian Human Rights Commission (“CHRC”) prior to filing his Application with this Tribunal. The applicant enclosed a copy of the CHRC’s report to the Commission concerning jurisdiction. In this report, staff recommends dismissing the complaint as being outside the legislative authority of the Parliament of Canada on the basis of the functional test employed by the Supreme Court of Canada.

5Given the above, it would appear that the parties and the CHRC agree that labour relations within the respondent are provincially-regulated. Accordingly, it would appear that the Tribunal has jurisdiction to deal with this Application.

6This Application will proceed in the normal course. The respondent is directed to file its Response within 35 days of the date of this Interim Decision.