McMullan v. The Department of National Defence, 2014 HRTO 842

Human Rights Tribunal of Ontario

B E T W E E N:

John McMullan Applicant

-and-

The Department of National Defence c/o The Denison Armoury Respondent

DECISION

Adjudicator: Paul Aterman Date: June 9, 2014 Citation: 2014 HRTO 842 Indexed as: McMullan v. The Department of National Defence

WRITTEN SUBMISSIONS

John McMullan, Applicant Marvin Gorodensky, Counsel

The Department of National Defence, Respondent Susan Harrison, Representative

1The applicant has made two Applications to the Tribunal. In 2014-16581-I he alleges that his former employer, the Commissionaires Great Lakes, discriminated against him with respect to employment because of age contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").

2In the present Application he alleges that the respondent, although not his employer, also discriminated against him with respect to employment because of age.

3Essentially he says that he worked for the Commissionaires since 1993 and spent the last 9 years of his employment providing services as a supervisor at the Denison Armoury, a property owned by the respondent Department of National Defence. He alleges that the Commissionaires pressured him into retirement, and did so at the instance of the respondent.

4The Tribunal invited submissions on the issue of whether the present Application falls outside its jurisdiction because the respondent is a federal undertaking. The Tribunal has no jurisdiction over employment issues arising in federal undertakings.

5The respondent has provided submissions which argue that the federal government has the constitutional authority to establish and oversee the functioning of the respondent. The applicant does not challenge the fact that the respondent is a federal undertaking. He appears to argue that, although the applicant was not an employee of the respondent, the fact that the alleged discrimination occurred on the respondent's property makes it liable under the Code.

6This Application is dismissed for two reasons. First, the respondent is a federal undertaking. By virtue of s.91(7) of the Constitution Act, 1867, 30 & 31 Victoria, c.3 (U.K.) the federal government has exclusive jurisdiction over "the militia, military and naval services and defence". The federal government has exercised that jurisdiction by creating the respondent pursuant to s.3 of the National Defence Act, R.S.C., c.N-4. The applicant does not challenge the fact that the respondent is a federal undertaking nor does he assert that the Tribunal has jurisdiction over federal undertakings. The fact that some or all of the alleged discrimination may have occurred on property owned by a federal undertaking does not overcome the constitutional barrier to the Tribunal exercising jurisdiction over a federal undertaking.

7The second reason is separate from the federalism issue. By his own admission the applicant has never been employed by the respondent. As he has never been an employee of the respondent, he cannot allege discrimination in employment and name the respondent as his employer. If he believes that the Commissionaires Great Lakes acted at the instance of the respondent in discriminating against him, then he may seek to establish those allegations through evidence if the other Application, 2014-16581-I, proceeds to hearing. The fact that the respondent's employees may be called upon to give evidence in that proceeding does not create a justification for initiating the present Application against the respondent.

ORDER

8The Application is dismissed.