In Cristiano v. PDLES, 2022 HRTO 812, the applicant filed a HRTO application alleging that the respondent, a private career college offering courses online and in-person, failed to accommodate her disability while she was a student in one of their online programs.  The respondent requested early dismissal of the application, arguing that the program fell under federal jurisdiction as a form of telecommunications because the program ran on the internet and was offered online across the country.

The HRTO found that the matter fell under provincial jurisdiction, relying on the “functional test” in the Supreme Court of Canada decision in NIL/TU,O Child and Family Services Society v. B.C. Government and Service Employees’ Union, 2010 SCC 45.  The adjudicator noted that the way the respondent delivered their services was not determinative of jurisdiction.  Rather, one must consider the nature, habitual activities and daily operations of the respondent. In this case, it was clear from the evidence that the respondent was an educational institution with a connection to Ontario, therefore fell within provincial jurisdiction.

This was based on findings that the respondent offers educational programming, it is heavily regulated by the provincial Private Career Colleges Act, it has a physical address in Ontario and delivers in-person programming at that location, and its servers and Learning Management Software are also located in Ontario.  Furthermore, while the respondent provides services online, it does not operate a telecommunications network or provide internet, phone or television services.

The Tribunal also noted that most educational institutions now provide some form of service online and it would be incompatible with the clearly defined division of powers in the Constitution Act to remove those institutions from provincial jurisdiction because of the format in which services are offered.  Given that the case has been found to fall within the HRTO’s jurisdiction, the application was permitted to proceed to the next stage of the Tribunal’s process.

For more information on this case, please read:
Cristiano v. PDLES
, 2022 HRTO 812