Jennifer Pierre v. The Canadian Red Cross Society, 2013 HRTO 1199

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jennifer Pierre Applicant

-and-

The Canadian Red Cross Society Respondent

INTERIM DECISION

Adjudicator: David Muir Date: July 10, 2013 Citation: 2013 HRTO 1199 Indexed as: Pierre v. The Canadian Red Cross Society

APPEARANCES

Jennifer Pierre, Applicant Kate Sellar, Counsel

The Canadian Red Cross Society, Respondent Christopher M. Wallace, Counsel

Introduction

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to contracts because of ancestry, colour, ethnic origin, family status, place of origin, race and reprisal

2The respondent filed a Request for Summary Hearing claiming that the applicant has plead no facts which would support a violation of the Code. The respondent also asserts that the Tribunal has no jurisdiction over this dispute which it characterizes as a contractual dispute between the applicant and her employer, another entity with which the respondent contracted for services to be provided to yet another entity in the Maldives. The respondent asserts that it was not the employer of the applicant and her complaint is with her employer and not with it. The applicant has responded to the Request and asserts amongst other things that the individuals who were primarily involved in the allegedly discriminatory conduct were employees of the respondent. She also alleges that some of the allegedly discriminatory incidents occurred during conversations with officials at the respondent’s head office in Ottawa.

3A summary hearing was held by telephone conference call on July 8, 2013.

4The Request of the respondent is dismissed at this stage.

5The Tribunal’s Rule 19A.6 provides that where a request for summary hearing is dismissed no reasons need be provided however in these circumstances the following brief comments are appropriate.

6As regards the claim that the Tribunal lacks jurisdiction I have reviewed the parties’ submissions and the pleadings and am not persuaded that it is plain and obvious that the Tribunal has no jurisdiction. In my view at this preliminary stage of the proceeding this is the correct standard to apply when considering this issue. Having applied this standard when considering the materials filed and the submissions of the parties I am not persuaded that it is plain and obvious that the Tribunal lacks jurisdiction because there is an insufficient connection to Ontario. This of course is not a final determination of the Tribunal’s jurisdiction and the issue may be revisited at the appropriate stage of the proceeding after a more complete factual record is established.

7As regards the claim that the Application should be dismissed because it has no reasonable prospect of success I observe that to some degree the respondent’s claim in this regard is linked to its concerns about jurisdiction and fails at this stage for the same reasons. I also observe that the respondent frames its arguments in response to the applicant’s claim of discrimination in contract and argues that this ground is largely concerned with the protection from discrimination in contract formation and not performance. I am not persuaded that this is necessarily the entire scope of this social area and accept that it may be arguable as suggested by the applicant that discriminatory interference in a contract’s performance might attract Code protection.

8In any case as noted by the applicant she has reserved the right to seek leave to amend her Application to include the social area of employment and should do so forthwith. If amended an important issue in this case will be whether or not the circumstances of this case are contemplated by the expansive meaning of employment in the Ontario Code. In that regard I observe again that in the Application the applicant at times refers to herself as the applicant but the Application also includes a number of claims by her employer, ILC, supporting to some degree the respondent’s contention that this is merely a commercial dispute between ILC and the respondent. ILC is not a party to this Application. Finally in considering the allegations of the applicant and mindful of the jurisdictional issues facing the applicant above, I am not persuaded at this stage that there is no reasonable prospect that this Application can succeed because there are allegations made that if proven might tend to support the inference that a factor in the disputes between the parties were the applicant’s ancestry, colour, ethnic origin, family status, place of origin and race. This does not mean that the Applicant will succeed but at this preliminary stage it can not be dismissed on that basis.

CASE ASSESSMENT DIRECTIONS

9The Application will proceed to the next stage of the Tribunal’s process. The respondent has not indicated that it is willing to attend mediation at the Tribunal, the applicant has. The Tribunal makes the following Directions:

a. The Request for Summary Hearing is dismissed.

b. The respondent is directed to advise the Tribunal and the applicant in writing within 14 days of this Interim Decision whether it is willing to attend mediation failing which the Application will be scheduled for a two day hearing in Ottawa.

c. If the applicant intends to seek leave to amend her Application she shall deliver and file a Request for Order During Proceeding (Form 10) within 14 days of the date of this Interim Decision.

10I am not seized of this case.