Distler v. McDonald’s Canada, 2014 HRTO 1475

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Danielle Distler Applicant

-and-

McDonald’s Canada Respondent

DECISION

Adjudicator: David Muir Date: October 3, 2014 Citation: 2014 HRTO 1475 Indexed as: Distler v. McDonald’s Canada

1The applicant filed an Application under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in employment on the basis of record of offences and reprisal.

2In her Application the applicant alleges that she was assaulted by a co-worker at work. The applicant also alleges that when she complained about it, all that happened was that she and her co-worker were separated.

3On August 22, 2014 the Tribunal issued a Notice of Intent to Dismiss the Application (“NOID”) on the basis that the Application appeared to be outside the Tribunal’s jurisdiction. The Notice noted two issues which had arisen from a review of the Application:

a. a review of the Application and the narrative setting out the incidents of alleged discrimination fails to identify any specific acts of discrimination within the meaning of the Code allegedly committed by the respondent(s);

b. and that the applicant alleged discrimination based on the ground of “record of offences” but failed to describe how the respondent’s behaviour was related to discrimination on the basis of a conviction for an offence in respect of which a pardon has been granted under the Criminal Records Act (Canada) and has not been revoked, or an offence in respect of any provincial enactment (s. 10 (e)). See for example Gravino v. P.R. Maintenance, 2009 HRTO 516; de Pelham v. Mytrak Health Systems, 2009 HRTO 172.

4The applicant filed submissions in response to the NOID

5Under the Tribunal’s jurisprudence, an Application will only be dismissed at this preliminary stage if it is “plain and obvious” on the face of the Application that it does not fall within its jurisdiction. See, for example, Masood v. Bruce Power, 2008 HRTO 381; Belcastro v. Metrolinx Go Transit, 2012 HRTO 2121.

6For the reasons set out below, I have determined that it is plain and obvious that the Application makes no allegations of discrimination protected by the Code. As indicated the applicant alleges discrimination in employment because of record of offences and reprisal.

7However the applicant makes no allegations which relate any alleged act of the respondent which might relate to a record of offences. Moreover the applicant does not state that she is a person with a conviction for an offence in respect of which a pardon has been granted under the Criminal Records Act (Canada) and has not been revoked, or an offence in respect of any provincial enactment (s. 10 (e)). In short there are no facts set out in the Application which relate to this alleged ground of discrimination.

8The applicant also alleges reprisal. The reprisal section of the Code only applies to actions that are intended as a reprisal for asserting one’s Code rights. See Noble v. York University, 2010 HRTO 878 at para. 31. The applicant does not state that she raised a Code related concern with her employer nor does she state that she suffered any adverse consequences because she made a complaint that her rights under the Code had been infringed. In short the applicant has plead no facts which engage this provision of the Code.

9For all of these reasons I find that it is plain and obvious that this Application raises no issues under the Human Rights Code and must be dismissed.