The tribunal applied the 'functional test' to determine if it has jurisdiction to decide on the case
The Human Rights Tribunal of Ontario (HRTO) has ruled that a human rights complaint filed by a student against a private career college falls within the scope of its jurisdiction and should therefore be allowed to proceed.
In Cristiano v. PDLES, 2022 HRTO 812, the respondent is a private career college offering vocational programs through both online and in-person programming. The applicant was enrolled in one of the respondent’s online educational programs. Under the program, there is no face-to-face classroom instruction, rather, all instruction, coursework and exams occur online.
The applicant filed a complaint against the respondent before the HRTO. She alleged that the respondent failed to appropriately accommodate her during the enrollment process, and this failure constituted discrimination on the basis of disability under the Human Rights Code.
The respondent sought to have the complaint dismissed on the basis that it is outside of the HRTO’s jurisdiction. Specifically, the respondent alleged that the program in which the applicant was enrolled was a form of telecommunications, and since online communication is an undertaking that is inherently intertwined with the internet and extends beyond the limits of Ontario, it is therefore subject to federal jurisdiction.
In response, the applicant argued that given the nature, habitual activities and daily operations of the respondent, the matters raised in the complaint fall within the exclusive jurisdiction of Ontario.
In its decision, the HRTO held that the respondent is not a federally regulated service provider, and accordingly, the complaint should continue and be referred to a tribunal hearing.
According to HRTO, the appropriate test for determining whether a matter falls under federal jurisdiction is the “functional test” recognized by the Supreme Court of Canada in NIL/TU,O Child and Family Services Society v. B.C. Government and Service Employees’ Union, 2010 SCC 45. This case calls for an inquiry into the nature, habitual activities and daily operations of the entity in question “to determine whether it constitutes a federal undertaking.”
After applying the functional test, the HRTO concluded that the normal, habitual and daily operations of the respondent are to provide education services and are connected to Ontario.
First, the HRTO found that the respondent is a private career college and provides education services, and these services are delivered across Ontario and elsewhere through online distance learning.
Second, the HRTO learned that the respondent’s education services are “heavily regulated” by Ontario.
“The courses delivered by the respondent must be approved by the Ontario Ministry of Training, Colleges, and Universities under the Private Career Colleges Act,” adjudicator Holly Gomes wrote. “In their submissions, the respondent provided a multitude of documents which demonstrate how closely their course content and delivery are regulated under this statute.”
While the respondent is incorporated under the Canada Not-for-profit Corporations Act, the HRTO ruled that this is not determinative of the matter, given that a not-for-profit organization can choose whether to incorporate federally or provincially regardless of whether they are federally or provincially regulated.
Third, the HRTO determined that the respondent has a physical address in Ontario used for students participating in programs delivered in person.
“While the applicant was enrolled in an online course, there is no dispute that the respondent does in fact deliver in-person programs at the Ontario location,” Gomes wrote. “Additionally, the computer servers and learning management software for the hosting and delivery of the programs are also physically located in Ontario.”
Lastly, the HRTO found that the respondent does not itself own or operate any telecommunications network, or provide internet, phone or television services to the public although it provides services online.