HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Mark Lombardo
Applicant
-and-
US Steel Canada – Lake Erie Works
Respondent
DECISION
Adjudicator: Dawn J. Kershaw
Indexed as: Lombardo v. US Steel Canada – Lake Erie Works
Introduction
1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on October 23, 2014, which he completed on January 20, 2015.
2On January 23, 2015, the Tribunal issued a Notice of Intent to Dismiss the Application (“NOID”) on the basis that the Application appears to be outside the Tribunal’s power to decide. The applicant was directed to respond to the issues raised in the NOID by no later than February 22, 2015. The NOID advised the applicant that failure to respond to the NOID may be considered an abandonment of the Application and it might be dismissed for that reason.
3The NOID also stated:
It appears the Application is outside the HRTO’s jurisdiction because:
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).
you allege discrimination based on “reprisal or threat of reprisal” but have failed to explain how the respondent’s behaviour was related to any of the following: 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 under the Code [s. 8]. See for example Mirea v. Canadian National Exhibition, 2009 HRTO 32; Chan v. Tai Pan Vacations, 2009 HRTO 273.
4The applicant provided additional information on February 10, 2015.
5In the Application, the applicant alleges he had a verbal disagreement with his supervisor who then told a co-worker he was going to punch the applicant in the face. The applicant alleges the supervisor then concocted a story, which the supervisor shared with another supervisor, that he witnessed the applicant throw a nail gun at another employee’s face. The applicant alleges he then had to submit to a drug and alcohol test, which was negative. He alleges he later was suspended for two 12 hour periods although it is not clear why.
6He alleges he is worried that his supervisor might assault him and fabricate more stories about him to get him terminated.
7In his NOID submissions, the applicant alleges, among other things, that the respondent told him and the Union they were meeting with them to discuss the applicant’s claims of harassment but instead they sent the applicant off work indefinitely. The applicant alleges he was not able to contact the respondent’s doctor and had been seeking treatment on his own. He alleges when he did see the company doctor, that doctor found him unfit to be at work very quickly based on complaints he and the Union had never seen.
8He opines that if the company had dealt with the threats against him he would not have had to complain to the Ministry of Labour or the police or file this Application.
ANALYSIS AND DECISION
9Rule 13.1 of the Tribunal’s Rules of Procedure provides that the Tribunal may dismiss an Application that is outside the jurisdiction of the Tribunal. Rule 13.2 further states that where it appears to the Tribunal that an Application is outside its jurisdiction, it shall, prior to sending the Application to the respondent, issue a Notice of Intent to Dismiss the Application. The Notice is only sent to the applicant, and requires him or her to file written submissions. Under 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: Masood v. Bruce Power, 2008 HRTO 58 and Hotte v. Ontario (Finance), 2008 HRTO 63.
10Section 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 for so doing.
11As noted in many cases (see for example Mirea v. Canadian National Exhibition, 2009 HRTO 32), the Tribunal does not have a general power to evaluate employment relationships, but hears applications that allege violations of the Code. In employment, s. 5(1) of the Code prohibits discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability. Claims of reprisal must also be linked to the Code in one of the ways described in s. 8 of the Code, above.
12From the materials filed by the applicant, it is apparent that the applicant has an employment related dispute with the respondent and believes he has been treated unfairly. Although he alleges he was temporarily suspended following an initial workplace dispute, he has not alleged either the initial dispute or any subsequent disciplinary action was related to a Code ground. While he says he was required to submit to drug testing he has not alleged either that he has a disability (i.e. drug or alcohol addiction) or that his employer perceives this to be the case.
13In my view, it is plain and obvious that the Application is outside the Tribunal’s jurisdiction. The applicant, although given the opportunity to provide further information, has not provided any information that the drug testing requirement or alleged (disciplinary) reprisal is linked to a Code ground or attempts on his part to claim or enforce his rights under the Code. The information provided does not establish any link to any Code grounds.
Order
14The Application is dismissed.
Dated at Toronto, this 25^th^ day of March, 2015.
“Signed by”
Dawn J. Kershaw
Vice-chair