Trudeau v. Huronia Area Aboriginal Assistance Corporation, 2015 HRTO 877

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Adolphus Trudeau

Applicant

-and-

Huronia Area Aboriginal Assistance Corporation o/a Huronia Area Aboriginal Management Board and Trish Meekins

Respondents

DECISION

Adjudicator: Mark Hart Date: June 30, 2015 Citation: 2015 HRTO 877 Indexed as: Trudeau v. Huronia Area Aboriginal Assistance Corporation

APPEARANCES

Adolphus Trudeau, Applicant Self-represented

Huronia Area Aboriginal Assistance Corporation o/a Huronia Area Aboriginal Management Board, Respondent Kent Elson, Counsel

Trish Meekins, Respondent Andrew Drury, Counsel

1This is an Application dated February 6, 2013 alleging discrimination with respect to employment because of sex, sexual harassment and sexual solicitation contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The respondent Huronia Area Aboriginal Assistance Corporation o/a Huronia Area Aboriginal Management Board (“HAAMB”) is a small, non-profit organization located in Owen Sound, which provides employment and training initiatives to Aboriginal people. At the relevant time, HAAMB employed three people: an executive director, the applicant, and an office clerk. HAAMB is governed by a board of directors of between three and seven individuals.

3The applicant was employed with HAAMB as an employment counsellor and intake worker commencing April 23, 2012. At the time the applicant was hired, he was living with the personal respondent in a common law relationship. The personal respondent at that time was a member of the board of directors for HAAMB. She removed herself from consideration of the applicant’s application for employment with HAAMB due to a conflict of interest, but continued to sit as a member of the board.

4The circumstances giving rise to this Application took place in the context of the breakdown of the common law relationship between the applicant and the personal respondent in or about August 2012. The applicant alleges that on August 13, 2012, when he attended at the residence where he had formerly cohabited with the personal respondent to remove his personal belongings, the personal respondent said, “I am still your boss and sit on the board and you still have to deal with me”. The applicant further alleges that on October 1, 2012, the personal respondent sent him an instant electronic message which included the statement, “I still love you”. The Application as filed raises a number of other alleged incidents which will be addressed below.

5By Case Assessment Direction dated December 3, 2014, the Tribunal granted HAAMB’s request for a summary hearing to be held in this matter to determine whether this Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

6Rules 19A.1 and 19A.2 of the Tribunal’s Rules of Procedure read as follows:

19A.1 The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

19A.2 Rules 16 and 17 do not apply to summary hearings. The Tribunal may give directions about steps the parties must take prior to the summary hearing, including disclosure or witness statements.

7Details about the nature of a summary hearing were set out as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994 at paras. 8 and 9:

In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

8The CAD noted that this Tribunal does not have the general power to deal with allegations of unfairness. It can only deal with alleged discrimination or harassment on the grounds set out in the Code. To succeed in an Application, an applicant must be able to prove discrimination on the basis of a Code ground on a balance of probabilities. To show discrimination, an applicant must prove a link between a respondent’s alleged actions and a Code ground. Having reviewed the Application, the CAD expressed concern as to the applicant’s ability to prove a link to the grounds alleged.

9In addition to the question of whether this Application has no reasonable prospect of success, the Tribunal’s CAD further directed that the hearing also would deal with the question of whether this Tribunal has jurisdiction to deal with this Application, as this Tribunal has no jurisdiction to deal with matters that fall in the area of the constitutional authority of the federal government. Under s. 91(24) of the Constitution Act, 1867 exclusive jurisdiction over “Indians and lands reserved for Indians” is conferred on the federal government.

10The hearing into these issues proceeded by way of teleconference on February 6, 2015, at which time I heard oral submissions from all parties. I also have considered all material filed by the parties for the purpose of the teleconference hearing.

Jurisdictional Issue

11No party contested this Tribunal’s jurisdiction to deal with the issues raised in the Application. Nonetheless, as this is a jurisdictional issue, I need to be satisfied that this matter properly falls within provincial, not federal, jurisdiction.

12It is well settled that labour and employment relations are presumptively within provincial constitutional jurisdiction: see Lafrance v. First Nations Information Governance Centre, 2014 HRTO 1826.

13In NIL/TU,O Child and Family Services Society v. B.C. Government and Service Employees’ Union, 2010 SCC 45 (“NIL/TU,O”), the majority of the Supreme Court of Canada set out a test for determining whether that presumption is displaced and the labour relations of an employer fall within federal jurisdiction. The first step is to apply a functional test in order to determine whether the nature, operations and habitual activities of the employer are such that it is found to be a federal undertaking. If it is clearly the case that the employer is a federal undertaking then its labour relations will be federally regulated. The majority of the Court said 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” (NIL/TU,O at paragraph 18).

14In NIL/TU,O, the Court found that an organization providing child-welfare services to First Nations families and children did not fall within federal jurisdiction simply because the recipients of the services were First Nations people. Rather, it found that the organization was one of many in a provincial network of organizations providing similar social welfare services. In other words, who receives the services provided by the employer is not determinative of the jurisdictional question. What matters is what those services are, how they are delivered and how the service delivery is administered and overseen.

15In the instant case, while HAAMB serves the Aboriginal community, its nature, operations and habitual activities are essentially that of an employment assistance centre, which typically falls under provincial jurisdiction. I note that HAAMB is funded by the federal government, but absent federal operational involvement, funding alone does not change the nature of HAAMB’s operations from provincial to federal (see: NIL/TU,O, para. 40).

16Accordingly, I find that the Application is within this Tribunal’s jurisdiction.

No reasonable prospect of success

17As stated above, the first allegation raised by the applicant is that on August 13, 2012, in the context of the breakdown of his common-law relationship with the personal respondent and at the time he was removing his personal belongings from the residence where they had cohabited, the personal respondent is alleged to have said, “I am still your boss and sit on the board and you still have to deal with me”. While the personal respondent denies making this statement, it is not the purpose of a summary hearing to make credibility findings regarding contested evidence.

18The applicant states that he regarded this statement as a threat to his employment with HAAMB. It is difficult for me to understand how this constitutes a reasonable interpretation of what the personal respondent is alleged to have said. Rather, even accepting that the personal respondent said what the applicant alleges, she was simply stating the reality that, since she remained a board member of HAAMB, the applicant would still have to deal with her. In my view, such a statement, even if made, cannot reasonably be regarded as amounting to sexual harassment in the workplace within the meaning of s. 7(1) of the Code, nor can it be regarded as an act of discrimination in respect of employment because of sex contrary to s. 5(1) of the Code.

19The next allegation is that, on October 1, 2012, the personal respondent sent the applicant an instant electronic message which included the statement, “I still love you”. Once again, in the context of the breakdown of their common-law relationship, I find that this statement cannot reasonably be regarded as sexual harassment in the workplace within the meaning of s. 7(1) of the Code, particularly given that this one statement cannot properly be regarded as amounting to a “course of conduct” as required by the Code’s definition of “harassment”. Further, in my view, this statement in the context in which it was made cannot reasonably be regarded as a “sexual solicitation or advance” within the meaning of s. 7(3) of the Code. Rather, in my view, it was the expression of the personal respondent’s continued personal feelings towards the applicant in the context of the breakdown of their common law relationship. This is not, in my view, the kind of conduct to which s. 7(3) of the Code was intended to apply. Finally, this statement does not rise to the standard required for a single comment to create a sexually poisoned work environment, as it does not in my view rise to the level of “a particularly egregious, stand-alone incident”: see Crêpe It Up! v. Hamilton, 2014 ONSC 6721 at paras. 18-19.

20The applicant raises a number of other alleged incidents involving the personal respondent as part of his Application. He relies upon an alleged incident when the office clerk sought approval from the personal respondent for a travel advance requested by the applicant. Apparently, according to the applicant, the office clerk was questioned by the personal respondent as to why this travel was necessary. The personal respondent did not speak to the applicant directly about this issue, and the applicant’s travel advance was granted. I see nothing in this that supports any alleged violation of the Code.

21The applicant relies upon another incident where the personal respondent is alleged to have questioned the office clerk about a receipt for an office lunch. Apparently, according to the applicant, the personal respondent asked who attended the lunch and questioned why she had not been invited. The lunch was paid for by HAAMB, not the applicant. The applicant states that this incident relates to him because he was in attendance at the lunch. Once again, I see nothing in this that supports any alleged violation of the Code.

22The applicant next alleges that the personal respondent made a statement to the executive director at HAAMB to the effect that the applicant was trying to have her thrown off the HAAMB board of directors by submitting a complaint about the statement she is alleged to have made on August 13, 2012. He further alleges that the personal respondent said to the executive director that the applicant was trying to get rid of her from the First Nations community. The applicant’s position is that neither of these accusations is true, and is not what he stated in the letter of complaint that he made to the HAAMB board of directors on August 15, 2012. Be that as it may, I do not see how either alleged comment amounts to a violation of the applicant’s rights under the Code.

23Finally, the applicant alleges that at a dance or function held by a neighbouring First Nation, the personal respondent approached an individual involved with HAAMB and other individuals and said that the reason for the breakdown of the common law relationship between the personal respondent and the applicant was due to allegations made by the personal respondent that the applicant and HAAMB’s executive director were dating. The applicant states that this is not true. Once again, that may be, but I fail to see how statements alleged to have been made by the personal respondent at a non-work related social function about her perspective on the reasons for the breakdown of their personal relationship can amount to a violation of the applicant’s rights under the Code. The applicant also states that he declared a conflict of interest in terms of dealing with an application for funding made by the personal respondent’s son, with which his executive director agreed. Again, I see no basis in this to support any alleged violation of the applicant’s Code rights.

24At the teleconference hearing, the applicant raised three other allegations that do not form part of his Application as currently filed. The first allegation arises in the context of presentations that the applicant makes at Georgian College as part of his employment duties with HAAMB. In a letter dated March 27, 2013, the applicant made a complaint to Georgian College that the personal respondent, who is employed by that College, made an inappropriate comment to another Georgian College employee regarding a presentation that the applicant was scheduled to make at the College on February 26, 2013. The applicant alleges that the inappropriate comment made by the personal respondent was to ask, “Isn’t there anybody else that could do the presentation?” This alleged comment had no impact on the applicant’s ability to do the presentation at Georgian College as scheduled. In my view, there is no basis in this alleged incident that could amount to sexual harassment or discrimination because of sex in violation of the Code.

25The applicant further alleges that on the evening of July 31, 2013, the personal respondent’s then partner called him and made death threats to him. The applicant states that this was reported to the police. By this time, the personal respondent had long since resigned as a member of the HAAMB board of directors. Further, she is not alleged to have been the person who made the call, nor can these alleged threats be regarded as being in respect of the applicant’s employment so as to fall within this Tribunal’s jurisdiction. In my view, this is properly a police matter and not a matter to be raised before this Tribunal.

26Finally, the applicant alleges that in the context of a peace bond hearing held in or about September 2013, a package of materials from the proceeding before this Tribunal was disclosed. The applicant alleges that this was a breach of confidentiality. That is not a matter for this Tribunal to determine, and was a matter to be raised before and considered by the Justice of the Peace presiding over the peace bond hearing.

27On the basis of the foregoing, I find that the applicant has no reasonable prospect of success in establishing that the alleged actions of the personal respondent and/or HAAMB constitute any violation of his rights under the Code.

28Accordingly, the Application is dismissed in its entirety.

29Subsequent to the summary hearing, the applicant filed a Request for Order dated March 31, 2015 seeking to amend his Application to add an additional personal respondent and to request production by the respondents of certain documents. The applicant seeks to add HAAMB’s executive director as a personal respondent on the basis that she is alleged to have first-hand knowledge of certain statements alleged to have been made by the personal respondent. That is not a proper basis upon which to add someone as a party respondent. In order to add an individual as a personal respondent, that individual must be alleged to have done something that violates the applicant’s rights under the Code. No such allegation is raised against the executive director.

30With regard to the applicant’s requests for production, such production is not required in order to deal with the issue before me, which is whether the allegations raised by the applicant have any reasonable prospect of success. Accordingly, the applicant’s requests are denied.

ORDER

31For the foregoing reasons, I hereby make the following order:

a. The Application is dismissed in its entirety as having no reasonable prospect of success; and

b. The requests made by the applicant in his Request for Order dated March 31, 2015 are denied.