Finlay v. Office of Legislative Assembly of Ontario, 2013 HRTO 1962

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kathleen Finlay

Applicant

-and-

Office of Legislative Assembly of Ontario

Respondent

DECISION

Adjudicator: Douglas Sanderson

Date: November 27, 2013

Citation: 2013 HRTO 1962

Indexed as: Finlay v. Office of Legislative Assembly of Ontario

WRITTEN SUBMISSIONS

Kathleen Finlay, Applicant

Self-represented

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 employment because of reprisal.

2The Application contains a narrative in which the applicant states that she applied for two positions with the respondent, which were similar to the position she held with the respondent approximately 30 years ago. The applicant asserts that she made inquiries regarding the status of the recruitment process in June and July of 2013 and was informed that she had not been selected for an interview for either position. The applicant states that she requested feedback to assist her in future job applications, but received none. The applicant alleges that the respondent’s behaviour towards her was retaliation for a human rights complaint she filed against the Ontario Securities Commissions (the “OSC”) in 2002. The OSC was the applicant’s employer at the time.

3On October 15, 2012, the Tribunal sent the applicant a Notice of Intent to Dismiss (“NOID”) in which it stated it appeared that the Application is outside the Tribunal’s jurisdiction because:

• your completed Application does not appear to raise an issue the HRTO has the jurisdiction (power) to resolve as follows

[Reprisal] you allege discrimination based on “reprisal or threat of reprisal” but have failed to explain how the respondent’s behaviour was related to any of the following: claiming or enforcing a right under the Code; instituting or participating in proceedings under the Code; or, refusing to infringe the right of another person under the Code [s. 8]. See for example Mirea v. Canadian National Exhibition, 2009 HRTO 32; Chan v. Tai Pan Vacations, 2009 HRTO 273.

4The Tribunal directed the applicant to provide written submissions to the Tribunal by November 14, 2013 responding to these issues. The applicant provided written submissions dated November 15, 2013. These submissions did not address the issue of reprisal and the applicant simply requested to be allowed to amend another application she filed to include the Legislative Assembly of Ontario as a respondent to that application.

Analysis and Decision

5An application will only be dismissed at a preliminary stage, 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. The Tribunal does not have a general power to inquire into claims of unfairness outside the social areas and grounds listed in the Code.

6Section 8 of the Code contains a very specific definition of “reprisal” and it provides:

8. Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.

7With respect to reprisal, the Tribunal stated in Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389 at para. 23, “Reprisal under s. 8 of the Code must be a reprisal for the assertion of human rights and there must be an intention to reprise for that reason”. See also Noble v. York University, 2010 HRTO 878 at para. 31.

8The applicant makes no assertion that she raised human rights concerns with the respondent. Rather, she attributes the respondent’s decision not to interview her and its failure to provide her feedback to a human rights complaint she filed against another employer 11 years ago. This allegation appears to be highly speculative and, despite having the opportunity to do so, the applicant provided no basis for her assumption that the respondent was somehow aware of her complaint against the OSC, an unrelated employer. Accordingly, the applicant’s allegation of reprisal amounts to a bare assertion.

9In these circumstances, I find that it is plain and obvious that the Application is beyond the Tribunal’s jurisdiction.