Denis Frazer v. CANADEM, 2013 HRTO 1706

Human Rights Tribunal of Ontario

B E T W E E N:

Denis Frazer Applicant

-and-

CANADEM Respondent

INTERIM DECISION

Adjudicator: Ena Chadha Date: October 9, 2013 Citation: 2013 HRTO 1706 Indexed As: Frazer v. CANADEM

WRITTEN SUBMISSIONS

Denis Frazer, Applicant (Self-represented) CANADEM, Respondent (Kevin P. McMahon, Representative)

1This Application was filed on April 3, 2013 under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of age. The applicant alleges that the respondent agency selected him to go to the Ukraine as an election observer, but later told him that his services were not required because of his age.

2The Application indicated that the applicant has also filed a complaint with the Canadian Human Rights Commission (“CHRC”) because the applicant was uncertain whether this claim should be filed provincially or federally.

3The respondent has not yet been required to file a Response.

4The Tribunal sent the applicant a Notice of Intent to Dismiss letter, dated April 25, 2013 (“NOID”). In the NOID, the Tribunal stated that it appeared that the Application was outside of the Tribunal’s jurisdiction because the respondent appeared to be a federal government department, agency or federally regulated employer or service provider: see, for example, Masood v. Bruce Power, 2008 HRTO 381. The Tribunal directed the applicant to file submissions addressing this jurisdictional issue.

5The applicant filed submissions in which he submitted that the respondent was a non-government organization (“NGO”). He confirmed that he had also filed a complaint with the CHRC against the respondent and Canadian International Development Agency (“CIDA”) as the latter “clearly” is a federal government department. He submitted that from his initial contact with CHRC, it too was unclear whether or not the respondent fell under federal or provincial jurisdiction.

6By way of Case Assessment Direction (“CAD”) dated July 15, 2013, the Tribunal noted that it is unclear whether or not the respondent falls within the Tribunal’s jurisdiction. The Tribunal directed the parties to provide further information and written submissions with respect to the jurisdictional issue. In particular, the Tribunal directed the applicant to provide a copy of his CHRC complaint and any communications he has received from CHRC addressing the jurisdictional issue. The Tribunal directed the respondent to file submissions addressing the jurisdictional issue, including providing a description of the type of work in which it is engaged.

7The applicant filed a copy of his CHRC complaint and related correspondence, which appears to indicate that the CHRC has not declined to accept the complaint. The applicant indicates that the parties to the CHRC complaint will be participating in mediation in the upcoming months. The applicant indicates that he believes the respondent falls under provincial jurisdiction.

8The respondent sent a brief email indicating that it is a “federally and provincially incorporated not-for-profit organization” which is mandated “to advance international peace and security” through the recruitment and deployment abroad of Canadian experts. The respondent indicates that it believes that it falls under provincial jurisdiction.

Jurisidiction

9The Code is applicable only to matters that fall within the provincial sphere and does not apply to federal works and undertakings where it would impair a core part of that undertaking. In Nicholson v. Bombardier Transportation Canada Inc., 2012 HRTO 2062 at para. 32, the Tribunal stated that the test for whether provincial legislation can apply to a federal undertaking pursuant to the doctrine of interjurisdictional immunity is whether the application of the provincial law would impair a vital or essential part of the federal undertaking: see Canadian Western Bank v. Alberta, 2007 SCC 22, [2007], 2 S.C.R. 3.

10The Supreme Court of Canada has confirmed that the “operative presumption” of labour relations is of provincial jurisdiction and that presumption is only displaced if it can be shown that a federal core forms an integral part of the nature, operations and habitual activities of the entity: see NIL/TU,O Child and Family Services Society v. B.C. Government and Service Employees' Union, 2010 SCC 45 at para. 18.

11It appear that the respondent is a not-for-profit agency operating in Ontario. While it is clear that the respondent receives federal funding, it is not plain and obvious that its labour relations are outside of this Tribunal’s jurisdiction.

12An application will only be dismissed at a preliminary stage, before it is served on respondents, if it is “plain and obvious” on the face of the application that it does not fall within the Tribunal’s jurisdiction. A decision to continue to deal with an application is not a final decision regarding the Tribunal’s jurisdiction in respect of the application.

13Based on the information provided by the parties, it is not plain and obvious that the Application does not come within the Tribunal’s jurisdiction. Accordingly, the Tribunal will continue to process the Application.

14This is not a final decision regarding the Tribunal’s jurisdiction in respect of this Application, nor any indication of the merits of the Application.

Deferral

15Pursuant to Rule 14.1 of the Tribunal’s Rules of Procedure, the Tribunal may defer consideration of an application, on such terms as it may determine, on its own initiative or at the request of any party. Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law.

16Some factors that have been identified as relevant in deciding whether to defer consideration of an application before the Tribunal are: the subject matter of the other proceeding, the nature of the other proceeding, the types of remedies available in the other proceeding, and whether it would be fair overall to the parties to defer, having regard to the status of each proceeding and the steps that have been taken to pursue them. See Baghdasserians v. 674469 Ontario, 2008 HRTO 404.

17Given that the applicant’s submissions indicate that his related CHRC complaint is proceeding to mediation in that jurisdiction, it may be appropriate to defer this Application pending the completion of that process.

18In these circumstances, the Tribunal requires the parties’ submissions with respect to the issue of deferral. The Tribunal orders as follows:

i. Within 14 days of the date of this Interim Decision, the applicant is directed to file with the Tribunal, copied to the respondent, written submissions regarding whether or not the Application should be deferred pending the completion of the CHRC matter;

ii. Within 14 days from receipt of the applicant’s submissions, the respondent is directed to file with the Tribunal, copied to the applicant, reply submissions with respect to the issue of deferral.

iii. If the applicant does not provide written submissions by the required time, the Tribunal may make its decision based only on the information in the file or may consider the failure to file submissions as an abandonment of the Application.

19I am not seized with this matter.