SUPREME COURT OF PRINCE EDWARD ISLAND. Noël Ayangma. Canada Health Infoway Inc. PEI Human Rights Commission

Transcription

1 SUPREME COURT OF PRINCE EDWARD ISLAND Citation: Ayangma v Infoway 2009 PESC 24 Date: Docket: S1-GS Registry: Charlottetown Between: And: And: Noël Ayangma Canada Health Infoway Inc. PEI Human Rights Commission Applicant Respondent Intervenor Before: The Honourable Justice Benjamin B. Taylor Appearances: Noël Ayangma, appearing on his own behalf Tracey L. Clements, Stephen J. Carpenter, on behalf of the respondent David Larter, on behalf of the intervenor Place and Date of Hearing Written Submissions Place and Date of Decision Charlottetown, Prince Edward Island April 17, 2009 May 4, 2009 for Applicant May 11, 2009 for Intervenor Charlottetown, Prince Edward Island August 14, 2009

2 Citation: Ayangma v Infoway 2009 PESC S1-GS Between: And: And: Noël Ayangma Canada Health Infoway Inc. PEI Human Rights Commission Supreme Court of Prince Edward Island Before: Taylor J. Date of Hearing: April 17, 2009 Date of Written Submissions: May 4, 2009 and May 11, 2009 Date of Decision: August 14, 2009 [8 pages] Applicant Respondent Intervenor Judicial Review standard of review re jurisdiction Jurisdiction jurisdiction of Human Rights Commission substantial connection. Cases Referred to: Dunsmuir v New Brunswick [2008] S.C.C. 9; Vail v Prince Edward Island (Worker s Comp. Bd.) 2009 PECA 7 Statutes Referred to: Human Rights Act R.S.P.E.I.1988, H-12 Noël Ayangma, appearing on his own behalf Tracey L. Clements, Stephen J. Carpenter, on behalf of the respondent David Larter, on behalf of the intervenor

3 Taylor J.: Style of Cause [1] I have changed the style of cause to reflect the correct name of the respondent, Canada Health Infoway Inc. Decision [2] This decision follows the application by Mr. Noël Ayangma ( Mr. Ayangma ) for judicial review of the April 30, 2007 decision of the Chairperson for the Commission. The Chairperson s decision concurred with the January 11, 2007 decision of the Executive Director Delegate which determined not to deal with Mr. Ayangma s complaint of discrimination against Canada Health Infoway Inc. ( Infoway ) because the Commission had no jurisdiction to do so. Mr. Ayangma s application seeks an order the matter be remitted back to the Commission with an order the Commission investigate Mr. Ayangma s complaint. For the reasons set out hereunder, I find the Commission has jurisdiction to hear the complaint. Mr. Ayangma s application is granted and his complaint is remitted back to the Commission for investigation. Background [3] Mr. Ayangma s complaint arises from his dealings with Infoway in April and May, Mr. Ayangma, a black man born in Cameroon, applied for a job with Infoway and took part in one or two telephone interviews and a video conference, after which he heard no more from Infoway and eventually learned the position had been filled. [4] In his complaint, Mr. Ayangma asserted as follows: The following are the relevant facts leading to my complaint: 1. I am black. I was born in Cameroon in Central Africa. On about January 2005, I posed my resume online seeking employment opportunities. 2. I believe that I was a victim of discrimination in employment on the basis of race, colour, national and ethnic origin contrary to section 6 of the PEI Human Rights Act. I declare that all the following are true to the best of my knowledge. 3. On or about April 4, 2005, I received a call from Mr. Leonard Kuek, a professional recruiter, working from the recruiting firm named Brainhunter which located at 2 Sheppard Avenue East Suite 700 (Sheppard Centre) North York, Ontario M2N 5Y7.

4 Page: 2 4. Mr. Leonard Kuek informed me that my resume was found on internet and that I was the only candidate found who had all the qualifications sought by their client and that they were very much interested in my candidacy, qualifications and experience. Mr. Leonard Kuek therefore asked me to forward to him an updated resume as soon as possible as according to him, the client was planning to fill the position in about early May, On the same day on April 4, 2005 and on about 16:12:20, the complainant forwarded via an updated resume to Mr. Leonard Kuek as requested. 6. On the same day April 4, 2005 and on or about 17:26:36 Mr. Leonard Kuek forwarded to me via a copy of the posting. 7. Immediately on the same day after receiving Mr. Leonard Kuek s e- mail, and on or about 18:08:15, he advised via that he cannot open the version of the resume I forwarded to him and requested that a word version be sent to him. After receiving my resume, he called and requested that it be modified and reduced to 5 pages. Mr. Leonard Kuek later called and finally revealed to me who the employer was (Canada Infoway Health Canada [sic]). 8. On the same day and on about 21:30, I forwarded a modified and reduced version of resume of Mr. Leonard Kuek as requested. The latter called and informed me that my resume was fine. Thereafter Mr. Leonard Kuek referred me to Info Way [sic] Canada. 9. On April 5, 2005 on about 10:54:57, Mr. Leonard Kuek provided me with additional salary information for the position: 70/h conditional on incorporating. I was also informed me that he will find out whether I can be based out of the PEI and that there might be a regional office in Montreal, Toronto or Halifax but indicated that Canada Infoway would want me to work out of one of these locations and that the position would required a minimum 2 year commitment and would involve up to 70 to 80% travel. 10. On April 7, 2005 I asked about the status of my application and was informed by Mr. Leonard Kuek that he had no info yet and that he will let him know as soon as he hears something. 11. On May 4, 2005 and on about 14:29:41, Mr. Leonard Kuek referred me to his supervisor, Ms. Diane Pap, an Account Manager, at ext 333, and asked that I deal with her directly regarding the interview and conditions of employment. 12. On May 16, 2005, I received a call from Canada Info way [sic] Health Canada s Human Resources Advisor, Ms. Gylaine Charbonneau working from the employer s Montreal Office. As I was absent, she left a message offering an interview and requesting I call her back. I called her back and a

5 Page: 3 telephone interview was scheduled. The interview took place few days later with Ms. Gylaine Charbonneau. 13. I received another call from Ms. Gylaine Charbonneau informing that I was successful in my first interview and second interview and that the employer was interested to schedule a second interview with me with a senior HR Advisor and the Vice-President, Mr. Burns working from the Toronto Office by way of video conference. 14. Few days later a date and location were set and I attended a video conference interview arranged from a Charlottetown Business Center located at University Avenue, Prince Edward Island with both Mr. Burns and the Senior HR Advisor. 15. Since then and until today and despite various calls made to the employer Canada Infoway, the latter did not inform me of the result of my second interview and no body [sic] from the Canada Info way [sic] bothered to return my several phone calls (more than 50). 16. I later on contacted the recruiting firm also several time[s] and related to them my frustration over the conduct of the client and the treatment afforded me. Though the recruiters also indicated their dissatisfaction with the treatment afforded to me by their client, Canada Infoway and the fact that they were using excuses not to hire him, there has no follow and no response from the firm either until today. 17. Until the day of my complaint, I have not been official [sic] informed by either the professional recruiting firm Brainhunter or by Canada Infoway of the outcome of the selection process they conducted in the selection process referred to above. 18. I have recently became unofficially aware through other sources, that the position of Program Director for which I was considered, was given to a Caucasian, in the name of Robert Vigneault who was a former colleague of mine. 13. A research conducted by me, revealed that there is virtually no visible minority in particular no blacks, in any senior management team positions, Board of Directors and/or Corporation Members within Canada Info way Health Canada s [sic] organization to the best of my knowledge. Canadian Human Rights Decision [5] Mr. Ayangma filed a complaint dated April 4, 2006 with the Canadian Human Rights Commission. The Commission responded by letter dated May 15, 2006 stating in part:

6 Page: 4 I have carefully reviewed your document and must advise you that the Canadian Human Rights Commission cannot offer you assistance in this matter. Under the Canadian Human Rights Act, the Commission investigates allegations of discrimination in employment and in provision of goods, services and accommodation in federal areas on a number of prohibited grounds specified in the Act. Based on a careful review, it appears that Canada Health Infoway falls within provincial government jurisdiction. As discussed with you, if it is determined that Canada Health Infoway is in fact within federal jurisdiction, you will be able to ask the CHRC to deal with the matter. I assume you that if this should occur timeliness will not be an issue, as your complaint was received well within one year of the last alleged act of discrimination. [6] Before receiving the above reply, Mr. Ayangma filed the complaint with the PEI Commission on May 2, [7] Decision of the PEI Human Rights Commission [8] The PEI Human Rights Commission responded to Mr. Ayangma s complaint by letter from the Executive Director Delegate dated January 11, 2007, which stated as follows: This will acknowledge receipt of your complaint, filed August 29, 2005 [sic]. Unfortunately, this matter does not fall within the provincial jurisdiction of the Prince Edward Island Human Rights Commission. The Respondent, Canada Health Infoway Inc. is a not-for-profit incorporated under the Canada Corporations Act. The Respondent s head office is located in Montreal, Quebec and the position in question was to be located in one of the regional offices in Toronto, Montreal, or Halifax. Both parties statements agree that you reside in Prince Edward Island and that you participated in a telephone interview and a video conference interview at the Charlottetown Business Centre. Further, you indicated in your complaint that you had inquired about being based in PEI, however, this was never determined and it was not listed as an option in the Position Profile. Unfortunately, this is not sufficient to ground the complaint within the jurisdiction of the PEI Human Rights Commission. Accordingly, I must dismiss your complaint. [9] I believe the reference to filing on August 29, 2005 is an error. [10] Mr. Ayangma sought a review of this decision, and the Chairperson of the Commission responded by decision dated April 30, 2007 as follows:

7 Page: 5 Summary of Facts: The Complainant had received a call from a Professional Recruiting Agency regarding a position with the Respondent. The Complainant states he was not offered the position because of his race, colour and national origin. Determination/Reasons: The recruiting company Brainhunter is an Ontario based firm. The Respondent Infoway Health Canada is a not-for-profit corporation under the Canada Corporation Act. Decision: The Respondent is a Federally incorporated corporation. Although the Complainant indicates he approached the Canadian Human Rights Commission on this matter, there is no evidence presented to back this. I concur with the decision of the Executive Director Delegate to dismiss the complaint as it is outside the jurisdiction of the Prince Edward Island Human Rights Commission. Position of Infoway [11] By letter dated April 3, 2008 addressed to Chief Justice Matheson of our Supreme Court and copied to Mr. Ayangma and the Commission lawyer, Stephen Carpenter stated: Mr. Ayangma has applied for judicial review of a decision of Richard W. Montigny, Chair of the PEI Human Rights Commission, dated April 30, 2007, whereby Mr. Ayangma s Human Rights Complaint of May 2, 2006 against our client (the Complaint ) was dismissed on the basis that the Complaint fell outside the jurisdiction of the PEI Human Rights Commission. The sole issue on judicial review is whether the PEI Human Rights Commission has jurisdiction to hear the Complaint. Our Client never raised any argument with respect to the jurisdiction of the PEI Human Rights Commission. It does not wish to do so now. It remains confident that it never discriminated against Mr. Ayangma. It is eager to address this matter on the merits, and will do so in whatever forum this Honourable Court concludes is appropriate. We will be attending at the judicial review proceedings on behalf of our client but will be taking no position with respect to the issue under review jurisdiction of the PEI Human Rights Commission. Our client will respect

8 Page: 6 whatever decision this Honourable Court reaches. [12] Following the April 17, 2009 hearing of the application at which I invited submissions and caselaw, Mr. Carpenter by letter dated April 21, 2009 advised as follows: We are writing further to the judicial review hearing of this matter on April 17, The Respondent, Canada Health Infoway Inc., does not wish to file any case law or written submissions regarding the legal issues identified by your Lordship at the hearing. [13] It is clear Infoway attorns to the jurisdiction of the Commission. PEI Human Rights Act [14] Both the Commission and Mr. Ayangma assert the Act says nothing about the jurisdiction of the Commission. I note however the preamble to the Act states in part: AND WHEREAS it is deemed desirable to provide for the people of the province a Human Rights Commission to which complaints relating to discrimination may be made...[emphasis added] [15] It seems to me this identifies a special concern with protecting the rights of the citizens of Prince Edward Island. Standard of Review [16] The recent Supreme Court of Canada decision in Dunsmuir v. New Brunswick, 2008 SCC9 (S.C.C.) re-examined judicial review of administrative decisions and determined there should only be two standards of review correctness and reasonableness. As to the question of jurisdiction, the Supreme Court stated the test is one of correctness. At paragraph 59, Bastarache and LeBel JJ (McLachlin C.J. and Fish and Abella JJ concurring) stated: [59] Administrative bodies must also be correct in their determinations of true questions of jurisdiction or vires. We mention true questions of vires to distance ourselves from the extended definitions adopted before CUPE. It is important here to take a robust view of jurisdiction. We neither wish nor intend to return to the jurisdiction/preliminary question doctrine that plagued the jurisprudence in this area for many years. "Jurisdiction" is intended in the narrow sense of whether or not the tribunal had the authority to make the inquiry. In other words, true jurisdiction questions arise where the tribunal must explicitly determine whether its statutory grant of power gives it the authority to decide a particular matter. The tribunal must interpret the grant of authority correctly or its action will be

9 Page: 7 found to be ultra vires or to constitute a wrongful decline of jurisdiction... [17] Accordingly, I find the standard of review to be applied to the decision of the PEI Human Rights Commission in this case is one of correctness. Consideration re Substantial Connection [18] The January 11, 2007 letter from the Commission identified a number of connections between the complaint and PEI or other jurisdictions: 1) Infoway is a non-profit corporation incorporated under the Canada Corporations Act; 2) Infoway s head office is in Montreal, Quebec; 3) The position Infoway sought to fill was in Toronto, Montreal or Halifax; 4) Mr. Ayangma lives in PEI; 5) Mr. Ayangma was in PEI when he took part in a telephone conference and then a video conference; 6) Mr. Ayangma inquired about whether the job might be based in PEI. [19] The April 30, 2007 letter from the Commission repeats (1) above and says the recruiting company is based in Ontario. Discussion [20] The Commission contends if a service, accommodation or employment opportunity is within Prince Edward Island, a complaint of discrimination would be made to the PEI Human Rights Commission. There is nothing in the Act to support the contention the factors which determine jurisdiction are only those which connect the person complained against, or that person s activities, with Prince Edward Island. Having said that, for practical purposes, especially enforcement, it usually makes sense to bring an action in a jurisdiction where the person complained against has some material presence, else a successful complainant may be left with no way to enforce a judgment. [21] It is not at all uncommon for a plaintiff, applicant or petitioner to bring an action and obtain a judgment in the jurisdiction in which he or she lives, without regard to 1) the address of the defendant/respondent, 2) where the pertinent events occurred, or 3) where it is most convenient the action be tried. In my view, the plaintiff s residence in the jurisdiction in which the action is brought would normally be considered a substantial connection sufficient to ground jurisdiction and it appears that should be so in this case. I find confirmation of my view in the excerpt from the preamble to the Act, quoted above. As well, in this case, the applicant seeks PEI as

10 Page: 8 the jurisdiction, no one suggests another jurisdiction, the respondent is based in at least two Canadian provinces, the respondent does not urge any other jurisdiction, in fact, the respondent attorns to the PEI jurisdiction, no other Human Rights Commission claims jurisdiction, and the events occurred by video conference or call, or interprovincial correspondence, with one end of the conference, call or correspondence being in PEI. [22] Cases may be substantially connected to two or more jurisdictions, and in such cases, all of those jurisdictions have jurisdiction, but if parties to the case fight over where the case should be tried, in deciding which jurisdiction tries the case, it may come down to which jurisdiction is more appropriate (or least inconvenient), because, for example, a) the law is best interpreted where the event happened, b) witnesses live in a certain place, or c) there is a great cost in bringing experts, like doctors, to court. A decision of this sort is described by the doctrine of forum non conveniens, under which a court may decline jurisdiction, but that doctrine does not apply in this case, because there is no contest among eligible jurisdictions. Costs [23] In Vail v Prince Edward Island (Worker s Comp. Bd.) 2009 PECA 7, McQuaid J.A. for the Court at para. 59 stated the following about whether the Workers Compensation Board should be ordered to pay costs:...the Board is not usually responsible for the payment of a party s costs when a party is before the court seeking the review of a Board decision provided that the Board s arguments before the court are restricted to issues of the Board s jurisdiction. [24] Since the sole issue in this case is the jurisdiction of the P.E.I. Human Rights Commission, I hold the Commission is not responsible for costs in this application. Conclusion [25] It is clear Mr. Ayangma s complaint is substantially connected to Prince Edward Island. The Commission was incorrect in finding it had no jurisdiction to deal with the case. I order this complaint be remitted back to the Commission to be dealt with in ordinary fashion, which I believe begins with an investigation. August 14, 2009 J.