J.S. v Brooker, 2005 FC 1510 (CAN LII) T-1376-04.
A civilian filed a complaint of sexual harassment against a corporal from the Canadian Armed Forces. Both had attended a Jiu-Jitsui class offered by the RMC over a six month period in 2000-2001. The civilian, a female, was one hierarchical level junior to the corporal. According to the rules of the dojo, which were posted on the class's website, senior students were expected to help train junior students and junior students were expected to obey senior students. As such, the civilian woman was often trained by the male corporal, who allegedly sexually harassed her by persistently speaking about women in derogatory terms and by repeatedly touching her sexually. The civilian quit the class and filed a complaint with the OHRC. The commission's investigator found that there was no employment or provision of service relationship between the complainant and the respondent, who were fellow students, and recommended that the complaint not go forward. As a result, the civilian brought the decision to Federal Court for review.
The respondent said that dojo rules did not make him a service provider. The CAF agreed. It said that it would be absurd to think that dojo rules made all students with any more than a white belt level of competency service providers. It welcomed the student to file a complaint against RMC and to file civil charges against the corporal.
The applicant argued that it was not plain and obvious that she and the respondent were not in a service provision relationship. According to the Supreme Court of Canada, in Canada Post Corporation vs. Canada, Commissions must use the "plain and obvious test" to determine whether or not to deal with a complaint.
A decision by the Commission under s.41 is normally made at an early stage before any investigation is carried out. Because a decision not to deal with a complaint will summarily end a matter before the complaint is investigated, the Commission should only decide not to deal with a complaint at this stage in plain and obvious cases (Canada Post Corporation v. Canada)
Because it was debatable whether or not the respondent and the complainant were in a service provision relationship, the commission had an obligation to take the case. She also referred to a principle highlighted in Berg, according to which "in determining what constitutes a provision of services, one must take a principled approach which looks to the relationship created between the service or facility provider and the service or facility user by the particular service of facility.
Is it plain and obvious that the complainant and the respondent were NOT in a service provision relationship?
The judge agreed with the complainant. By taking a principled approach to look at the relationship that the dojo created between the corporal and the civilian, it becomes debatable whether or not the two parties were in a service provision relationship. Because it is debatable, it is not plainly and obviously outside the jurisdiction of the Commission.
The Court set aside the commission's decision and referred the case back to the commission.