Kouame v. DHL Express (Canada) Ltd., 2013 HRTO 91

Human Rights Tribunal of Ontario

B E T W E E N:

Jean-Baptiste Kouame

Applicant

-and-

DHL Express (Canada) Ltd. and Loomis Express

Respondents

INTERIM DECISION

Adjudicator: David Muir

Date: January 17, 2013

Citation: 2013 HRTO 91

Indexed as: Kouame v. DHL Express(Canada) Ltd.

WRITTEN SUBMISSIONS

Jean-Baptiste Kouame, Applicant

Bruce Best, Counsel

DHL Express (Canada) Ltd., Respondent

Gregory J. Power, Counsel

Loomis Express, Respondent

Stephen King, Representative

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 disability.

2Neither respondent has filed a substantive Response (Form 2) to the Application although directed to do so by the Tribunal on December 13, 2012. The respondent Loomis filed a Form 2 in which it indicated that it was federally regulated and the Tribunal has no jurisdiction over the Application. The respondent Loomis requested that the Tribunal dismiss the Application for that reason but made no submissions in support of this request.

3The applicant filed a response to this Request on December 13, 2012. Noting that Loomis had made no submissions in support of its request the applicant took the position that it is not clear whether or not the respondent Loomis is federally regulated and/or the Tribunal has no jurisdiction because this respondent is within federal jurisdiction. The applicant argues that given the uncertainty about the constitutional status of the respondents this Application should be deferred until such time as the matter has been determined under the Canadian Human Rights Act. The applicant argues that this approach was adopted in Davies v. Compton Cable TV, 2009 HRTO 178.

4On January 10, 2013 the respondent DHL filed submissions in support of Loomis' request to dismiss the Application. DHL makes a number of submissions to the effect that DHL is within federal jurisdiction and accordingly this Application should be dismissed. The respondent disputed the assertion that the question of jurisdiction as it relates to Loomis is uncertain and accordingly the case should not be deferred pending its resolution under the Canadian Human Rights Act.

5Having reviewed the submissions of the parties, I agree with the applicant that it is uncertain at this stage whether or not the Tribunal has jurisdiction or whether this case should proceed under the Canadian Human Rights Act. Amongst other issues that will require further submissions and perhaps some evidence is the relationship between DHL and Loomis. DHL's submissions do not address this issue. The applicant states in his Application that at some point DHL acquired the hub where he worked. It is entirely unclear what relationship Loomis has with DHL and how the work the applicant did as an employee of Loomis fits within the business of DHL.

6I agree with the approach taken in Davies, above. In all of the circumstances it does not appear appropriate to put the parties to further expense and delay in attempting to resolve this issue at this stage. I find therefore that it would be most fair, just and expeditious to defer this Application pending the resolution of the case under the Canadian Human Rights Act.

7The Tribunal directs the parties attention to Rules 14.3 and 14.4 which outline the process by which the Application may be brought back on when the case has been resolved in the other proceeding.

8I am not seized of this case.