Abbasi v. Sygenics Inc., 2014 HRTO 142

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Hassan Adil Abbasi Applicant

-and-

Sygenics Inc. Respondent

INTERIM DECISION

Adjudicator: Jay Sengupta Date: January 31, 2014 Citation: 2014 HRTO 142 Indexed as: Abbasi v. Sygenics Inc.

WRITTEN SUBMISSIONS

Hassan Abbasi, Applicant Self-represented

Sygenics Inc., Respondent Raj Vadavia, Representative

Introduction

1This is an Application filed under section 34 of Part IV 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.

2The respondent filed a Response in which it raised an issue with respect to the Tribunal’s jurisdiction to hear this Application. It sought dismissal of the Application on the basis that the respondent company is a corporation registered under the laws of the province of Quebec, has its principal place of business in Quebec, entered into a relationship with the applicant, which it characterizes as one of contract as opposed to employment, in Quebec and the allegations of discrimination concern events that took place in Quebec.

3The argument advanced by the respondent was that the events described in the present Application do not appear to be connected to Ontario. See for example Cash v. Stryker, 2009 HRTO 1738.

4The applicant did not file a Reply. As a result, the Tribunal issued a Case Assessment Direction (“CAD”) directing the applicant to file submissions addressing the jurisdictional issue raised by the respondent. The applicant did so.

5Although both parties indicated that the relationship between the parties was structured such that the applicant was an independent service provider under contract, neither party provided the Tribunal with a copy of the contract in question.

6As a result, the Tribunal directed by Case Assessment Direction (“CAD”) that the respondent file a copy of the contract entered into between the parties to ascertain whether it contained an agreement between the parties as to which forum in which disputes between the parties would be resolved or adjudicated.

7The respondent did not file a copy of a written contract. Instead it filed submissions in which it acknowledged that the parties had not, in fact, signed a contract. The respondent provided copies of three invoices submitted for payment by the applicant to the respondent company and reiterated its request for dismissal.

8The applicant, although not called upon to do so, submitted a copy of an email from the respondent, dated September 4, 2012, in which it indicates the following:

Starting tomorrow you are working full time with us (sygenics) on Flaer project……As agreed with Iftikhar your compensation will be 40K/year. Also you will be working from home and online meeting with team so your needs are well taken care of…..You could submit on 15th and on 30th of the month your invoice (40K/24) and we will mail you check next working day to you. This will be contract salary and you will be responsible to submit your tax to Ontario government. You may have to get HST number and charge us HST if applicable. I will send you letter next week but in mean time you could use this email as proof of agreement.

9The question to be determined is whether the Application has a “real and substantial” connection to Ontario in accordance with the test developed by the courts in Van Breda v. Village Resorts Limited, (2010) 2010 ONCA 84, 98 O.R. (3d) 721 (C.A.), Club Resorts Ltd. v. Van Breda and Club Resorts Ltd. v. Charron, 2012 SCC 17 (“Van Breda”), Breeden v. Black, 2012 SCC 19, Éditions Écosociété Inc. v. Banro Corp., 2012 SCC 18 and MCAP v. Genexa Medical et al, 2010 ONSC 6050 with some modifications given that the jurisdiction of the Tribunal is determined by the provisions of the Code.

10The Supreme Court in Van Breda explained that the inquiry involves two stages:

a. First, the plaintiff has the onus of establishing that a “presumptive connecting factor” connects the litigation to the jurisdiction.

b. Second, if the plaintiff succeeds in establishing that a presumptive connecting factor exists, the defendant has the opportunity to rebut the presumption of jurisdiction by showing that, on the facts of the particular case, the connection is insufficient to establish a real and substantial connection.

11At the first stage, the plaintiff must show that the litigation is joined to the jurisdiction by one or more “presumptive connecting factors”. Where one or more of the presumptive connecting factors is present, the court is presumed to have jurisdiction over the litigation (subject to the defendants’ opportunity to rebut the presumption). Conversely, if no recognized presumptive connecting factor is present, the court should not assume jurisdiction.

12The document submitted by the applicant suggests that the respondent acknowledged that the applicant would be “working full time” for them, that he would be doing so from his home in Ontario and that he would be responsible for paying taxes in Ontario. In my view, the applicant has met his obligation to show that the litigation is joined to this jurisdiction.

13Once the presumption of jurisdiction is engaged, the onus shifts to the respondent to rebut the presumption. In the instant case, the respondent has failed to rebut the presumption and has, instead, merely reiterated its original position that as a corporation registered under the laws of the province of Quebec with its principal place of business in Quebec, it is of the view that despite the fact that the applicant lives and worked in Ontario, the Tribunal lacks jurisdiction.

14Accordingly, I find that the Tribunal has jurisdiction to deal with this Application. As both parties have indicated an interest in attempting mediation, the matter will be scheduled for mediation.

15I am not seized.