Jack Kelly v. Doughty Masonry Center, 2014 HRTO 1808

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jack Kelly Applicant

-and-

Doughty Masonry Center Respondents

DECISION

Adjudicator: Naomi Overend Date: December 19, 2014 Citation: 2014 HRTO 1808 Indexed as: Kelly v. Doughty Masonry Center

WRITTEN SUBMISSIONS

Jack Kelly, Applicant Maureen Dawson, Representative

1The applicant filed this Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in employment on the basis of reprisal.

2The Application, which was filed by the applicant’s union (Unifor) on his behalf, alleges that the applicant (as well as other employees) was subjected to harassing conduct, which escalated after he complained about the conduct to the owner of the respondent company. There is no attempt in the Application to link this alleged harassing conduct to any ground under the Code.

3On November 7, 2014, the Tribunal sent a Notice of Intent to Dismiss on the basis that the allegations in the Application appeared to be outside the Tribunal’s jurisdiction (power to decide). The applicant’s representative filed written submissions on December 4, 2014, arguing that the matter was within the Tribunal’s jurisdiction because it took place within the applicant’s employment, an area covered by the Code. The submissions further state: “Mr. Kelly is alleging that his decision to make a complaint of harassment against his supervisor was then used as a reason by the employer to further harass him.”

4At no point in the Application or submissions does the applicant refer to any differential treatment on the basis of a ground listed under the Code. However, the Tribunal does not adjudicate general claims of unfairness. There must be a nexus between the allegation of unfairness and a ground under the Code.

5With respect to the allegation of reprisal, section 8 of the Code states:

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.

6To successfully make out a claim of reprisal, the applicant must demonstrate that he experienced reprisal for:

• 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.

7Given that the applicant has failed to establish that he was claiming or enforcing a right under the Code, he is unable to rely on the first prong of this test. Moreover, there is nothing in the body of his Application or submissions to suggest that he had instituted or participated in proceedings under the Code or that he was refusing to infringe the rights of another person.

8Given that the applicant has failed to establish that the alleged conduct at issue was related to a ground under the Code, or constitutes reprisal within the meaning of s.8, the Tribunal has no jurisdiction over this Application. Accordingly, the Application is dismissed.