Raiche v. Pic Mobert First Nation, 2015 HRTO 1197

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Cheryl Raiche Applicant

-and-

Pic Mobert First Nation Respondent

INTERIM DECISION

Adjudicator: Jo-Anne Pickel Date: September 10, 2015 Citation: 2015 HRTO 1197 Indexed as: Raiche v. Pic Mobert First Nation

WRITTEN SUBMISSIONS

Cheryl Raiche, Applicant Suzanne Desrosiers, Counsel

Pic Mobert First Nation, Respondent Peter Hollinger, Counsel

Workplace Safety and Insurance Board, Respondent Greg Bullen, Counsel

Introduction

1The applicant filed an Application alleging reprisal and discrimination with respect to employment because of race, colour, and disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant was employed by the respondent, Pic Mobert First Nation, as an Ontario Works employment counselor/worker. Among other things, she alleged that she was subject to a poisoned work environment and that she was discriminated against by being denied reasonable accommodations for her disability.

2This Interim Decision addresses the following issues: (1) whether the Application falls under provincial jurisdiction; (2) whether the Application should be dismissed under s. 45.1 of the Code; and (3) whether the Workplace Safety and Insurance Board (“WSIB”) should be removed as a respondent in this proceeding.

Background to Tribunal’s Processing of Application

3By letter dated June 19, 2014, the Tribunal notified the applicant that the Application may be outside the Tribunal’s jurisdiction because the respondent appeared to be a federal government department, agency or a federally regulated business, i.e., a First Nations organization. The Tribunal directed the applicant to make submissions on the issue of jurisdiction. The applicant filed submissions in which she took the position that the Application falls within provincial jurisdiction. In its Response, the respondent submitted that the Application falls under federal jurisdiction.

4In its Response, the respondent requested that the Tribunal dismiss or defer the Application due to the fact that the applicant also filed a complaint with the Canadian Human Rights Commission (“CHRC”). The respondent also requested that the Tribunal dismiss the Application under s. 45.1 of the Code due to a decision made by the WSIB. As well, the respondent requested that the Tribunal add the WSIB as a respondent to this Application.

5After requesting submissions from the parties on the issue of deferral, the Tribunal deferred the Application pending the completion of the Canadian Human Rights Commission/Tribunal proceeding.

6In subsequent correspondence, both parties asked the Tribunal to discontinue the deferral and address the issue of whether the Application falls under provincial or federal jurisdiction.

7In a Case Assessment Direction (“CAD”) dated August 5, 2015, the Tribunal requested that the applicant advise the Tribunal of the status of the CHRC proceeding. In response to the CAD, the applicant advised that she had requested a mediation before the Canadian Human Rights Tribunal but has not received any response to her request.

8Since the CHRC does not appear to have addressed the issue of jurisdiction and given the parties’ agreement that the Tribunal should address this issue, I find it appropriate to do so.

Whether Application fall under Provincial jurisdiction

9For the reasons set out below, I find that this Application falls under provincial jurisdiction.

Relevant facts relating to the applicant’s employment

10The parties included in their pleadings certain relevant facts relating to the applicant’s employment.

11In her Application and her submissions on the jurisdictional issue, the applicant stated the following:

a. The applicant is employed by Pic Mobert First Nation;

b. Most of her allegations of discrimination relate to actions by her direct supervisor and the Director of Operations of Pic Mobert Frist Nation.

c. The applicant was employed as an employment counselor/worker in the Ontario Works office on Pic Mobert First Nation. As set out in the job description filed by the applicant, her primary role was to provide employment assistance for Ontario Works recipients, a majority of whom were status Indians. The applicant provided this service within the standards set out in the Ontario Works Act, 1997, S.O. 1997, c. 25, Sched. A.

d. The Pic Mobert First Nation Council is designated as a delivery agent under the Ontario Works Act for the Pic Mobert First Nation geographic area.

e. The Ontario Works office is located in the Ontario Works and Community Development Training Centre building on the respondent’s reserve. The applicant regularly shared office space with three other Ontario Works staff. The office is separate from other offices of the respondent in both function and location, except for a kitchen shared with an employee of the respondent’s Education Department.

f. The primary focus of the Ontario Works office is to deliver services under the Ontario Works Act. However, one day per week during limited hours the Ontario Works office staff assisted with issuing Indian Status cards.

12The respondent did not dispute the above facts in its Response. However, it emphasized that the applicant and her supervisors are employees of the Pic Mobert First Nation. All workplace activities were conducted at the Pic Mobert First Nation Band Office and all equipment used by the applicant during her employment was provided by Pic Mobert First Nation and owned by it. The respondent stated that its employees ultimately report to the Band Manager who reports to the Chief and Council which are created under the provisions of the Indian Act, R.S.C., 1985, c. I-5. Finally, the respondent stated that all workplace issues are dealt with under Band policies and procedures.

Parties’ submissions

13Both parties agreed that the applicable legal test is the one set out in the Supreme Court of Canada’s decision in NIL/TU,O Child and Family Services Society v. B.C. Government and Service Employees’ Union, 2010 SCC 45, [2010] 2 S.C.R. 696 (“NIL/TU,O”).

14The applicant submitted that the Application falls under provincial jurisdiction. She argued that the relevant operations are those of the Ontario Works Office, not the First Nation. Applying the functional test set out in NIL/TU,O, the applicant submitted that the nature and habitual activities of the Ontario Works office is to provide financial and employment assistance under the Ontario Works Act. Although the applicant conceded that staff in the office also issued Indian Status cards, she argued that this activity is incidental to the primary work of the office.

15The respondent submitted that the Application falls under federal jurisdiction since the respondent is a First Nation and it is the employer for both the applicant and the supervisors against whom she has made allegations. The respondent also relied upon the fact that the applicant performed her work on the respondent’s reserve. Finally, it also relied on the fact that the respondent owned all of the equipment the applicant used in her work and that workplace issues are dealt with in accordance with Band policies and procedures.

Analysis and Findings on Jurisdictional Issue

16In NIL/TU,O, the Supreme Court of Canada adopted a “functional test” to be applied in cases such as the present. This functional test calls for an inquiry into the nature, habitual activities and daily operations of the entity in question to determine whether it constitutes a federal or provincial undertaking. The majority of the Court held that, if the functional test is inconclusive, further examination is necessary to determine whether provincial regulation of the employer's labour relations "would impair the core of the federal head of power at issue”. (at para. 18).

17Both the courts and this Tribunal have recognized that an entity may engage in more than one undertaking or set of activities for constitutional purposes. In such a case, an entity may be subject to dual legislative authority because it has multiple operations or activities. See for example, Northern Telecom Ltd. v. Communications Workers of Canada, 1979 CanLII 3 (SCC), [1980] 1 S.C.R. 115 (“Northern Telecom”) and Marsden v. Alderville First Nation, 2015 HRTO 812 (“Marsden”).

18In Northern Telecom, the telecommunications company was unquestionably a federal “work, undertaking or business” under s. 92(10)(a) of the Constitution Act, 1867. The issue related to which level of government had jurisdiction over the labour relations of a subsidiary operation, an installation department, of the company. See Northern Telecom at pages 132 - 135. Similarly, in Marsden, the respondent was a First Nation. However, the issue for the purposes of applying the NIL/TU,O functional test was whether the respondent’s provision of school bus services fell within provincial jurisdiction. In the present case, I agree with the applicant that the issue is whether or not the activities of the respondent’s Ontario Works office fall within provincial jurisdiction.

19Based on the facts and materials submitted by the parties, I find that the nature, habitual activities and daily operations of the Ontario Works office is to deliver Ontario Works services in accordance with the Ontario Works Act. The respondent’s Council is specifically designated as a “delivery agent” and its reserve is designated as a geographic area under regulations made under the Ontario Works Act: see O. Reg. 136/98. As a delivery agent, the respondent is responsible for the administration of the Ontario Works Act and the provision of employment assistance and basic financial assistance within its geographic area: see s. 39 of the Ontario Works Act.

20In these circumstances, I find that the applicant’s employment within the respondent’s Ontario Works office falls within provincial jurisdiction. While the respondent First Nation is also undoubtedly engaged in a federal undertaking with respect to matters concerning s. 91(24) of the Constitution Act (matters regarding “Indians, and Lands reserved for the Indians”), there is no suggestion, nor does it appear, that the provision of assistance to Ontario Works recipients is integral to any federal undertaking of the respondent. See Northern Telecom at pages 132 – 135.

21Applying the functional test set out in NIL/TU,O, I find that the applicant’s employment in the respondent’s Ontario Works office falls within provincial jurisdiction as this the work of this office is a provincial undertaking. As such, the Application the deferral is discontinued and the Application will proceed in the Tribunal’s process.

Whether Application Should be dismissed under [s. 45.1](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h19/latest/rso-1990-c-h19.html#sec45.1_smooth) of the [Code](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h19/latest/rso-1990-c-h19.html)

22In its Response, the respondent requested that the Tribunal dismiss the Application under s. 45.1 of the Code because a WSIB proceeding has appropriately dealt with the substance of the Application.

23The respondent attached to its Response a copy of a decision by a WSIB Appeals Resolution Officer (“ARO”) dated July 23, 2013 as well as a decision by a WSIB Case Manager dated December 16, 2013. The ARO’s decision addresses whether the applicant is entitled to LOE benefits for a bilateral shoulder condition and a bilateral trigger finger condition that developed subsequent to her compensable carpal tunnel syndrome. It also addresses the applicant’s request for reimbursement of travel costs as well as the quantum of her Non-Economic Loss (“NEL”) award. In his decision, the Case Manager found that the accommodated job of Employment Worker was suitable and that the applicant was entitled to partial LOE benefits since she was earning less than she did in her pre-injury position. I note that, in his decision, the Case Manager stated that the applicant had not worked for a period of time due to a second injury for which she had registered a new claim. He noted that a decision remained pending in relation to this other injury.

24Section 45.1 of the Code states:

The Tribunal may dismiss an application, in whole or in part, in accordance with its rules, if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

25Section 45.1 is generally considered in two parts: (1) was there another “proceeding” and, (2) if so, did it “appropriately deal with” the substance of the application.

26Whether or not the process followed by the ARO and Case Manager amounted to a “proceeding” within the meaning of s. 45.1, it cannot be said that they have appropriately dealt with the substance of the Application. The ARO decision does not deal in any way with the substance of the Application, as it is focused on whether some of the applicant’s medical conditions are compensable under the WSIB’s governing legislation as well as the appropriate quantum of the applicant’s NEL award. These issues are distinct from those raised in this Application and which, as noted at the outset of this Interim Decision, include whether the applicant was subject to a poisoned work environment and whether she was discriminated against by being denied reasonable accommodations for her disability.

27Likewise, the Case Manager’s decision did not appropriately deal with the substance of the Application for at least four reasons. First, it appears that the applicant has various medical conditions, some compensable under the WSIB system and others that are non-compensable. The Case Manager’s decision deals only with the suitability of the Employment Worker position in relation to her compensable injuries since her claim in relation to her other injuries remained pending at the time of the decision. Second, there is no indication in the Case Manager’s decision that he considered and applied the respondent’s duty to accommodate the applicant up to the point of undue hardship. Third, it appears, based on information provided by the WSIB, that the Case Manager’s decision is under appeal and therefore it is not a final decision for the purposes of s. 45.1 of the Code. Fourth, the Application raises issues that extend beyond the respondent’s alleged failure to provide reasonable accommodations. The Application raises allegations relating to a poisoned work environment and allegations of racial discrimination that were not addressed in the WSIB decisions in this matter.

28For all these reasons, I find that the WSIB’s decisions in this matter did not appropriately deal with the substance of the Application. As such, the respondent’s request to dismiss the Application under s. 45.1 of the Code is denied.

Whether WSIB is properly named as a respondent

29In its Response, the respondent sought to add the WSIB as a respondent to the Application. The WSIB filed a Request for Order During Proceedings (“RFOP”) requesting that the Tribunal remove it as a respondent. In its RFOP, the WSIB noted that neither the applicant nor the respondent made any allegations of discrimination against the WSIB.

30The analysis applied by the Tribunal when dealing with requests to add or remove respondents is the analysis set out in Smyth v. Toronto Police Services Board, 2009 HRTO 1513 at para. 12 (“Smyth”). In Smyth, the Tribunal set out the following three considerations for deciding whether to add or remove a respondent:

1. Are there allegations made that could support a finding that the proposed respondent violated the Code?

2. If the proposed respondent is an individual and an organization is also named, is there a compelling reason to include him or her as a respondent?

3. Would it be fair, in all the circumstances, to add the proposed respondent?

31Applying these considerations, I find that the WSIB should be removed as a respondent. There are no allegations made in this case that could support a finding that the WSIB violated the Code. It appears that the respondent sought to add the WSIB as a respondent because it relied upon various WSIB assessments and decisions in its efforts to accommodate the applicant’s disabilities. It is open to the respondent to raise and rely upon the WSIB’s assessments and decisions at the hearing. However, the reliance by the respondent upon these assessments and decisions does not justify maintaining the WSIB as a respondent to the Application.

Respondent’s request for production of WSIB file

32In its Response, the respondent requests production of the applicant’s full WSIB file. This request is premature at this stage. Rule 16 of the Tribunal’s Rules of Procedure sets out a process and timeframe for the disclosure of arguably relevant documents. If any arguably relevant documents are not produced by the applicant in accordance with Rule 16.1, the respondent may renew its production request once the deadline for Rule 16.1 disclosure has passed.

Mediation

33In answer to the question regarding mediation on the Response form, the respondent indicated a willingness to take part in mediation. I note that the applicant requested mediation of the CHRC complaint but she did not indicate her interest in mediation on her Tribunal Application form. The applicant is directed to advise the Tribunal in writing within 7 days of this Interim Decision, whether she is willing to participate in a mediation of the Application.

orders

34For the reasons set out above, the Tribunal orders as follows:

a. The Application falls within provincial jurisdiction. Therefore, the deferral of the Application is discontinued and it will continue in the Tribunal’s process.

b. The respondent’s request to dismiss the Application under s. 45.1 of the Code is denied.

c. The WSIB’s request to be removed as a respondent is granted.

d. Within 7 days of the date of this Interim Decision, the applicant must advise the Tribunal in writing, with a copy to the respondent, whether she is willing to take part in a mediation. After having reviewed the applicant’s correspondence on this issue, or once the deadline for it has passed, the Tribunal will determine the appropriate next steps in this case.