Murray v. Ontario Association of Architects, 2010 HRTO 2060

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kevin Murray

Applicant

-and-

Ontario Association of Architects

Respondent

DECISION

Adjudicator: Naomi Overend

Date: October 8, 2010

Citation: 2010 HRTO 2060

Indexed as: Murray v. Ontario Association of Architects

APPEARANCES

Kevin Murray, Applicant ) Self-represented )

Ontario Association of Architects, Respondent ) Richard Steinecke, Counsel

1The applicant filed an Application with the Tribunal under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). His Application consists of multiple pages of notes, both hand-written and type-written, in which he makes a wide array of both observations and allegations, only some of which are connected with the Ontario Association of Architects, the named respondent.

2Following receipt of the Application, the respondent filed a Response in which it set out its history with the applicant and its objection to having to respond to the Application. Subsequently, it filed a Request for Order During Proceedings (Form 10), in which it asked to have the Application dismissed for failing to disclose a prima facie case and being an abuse of process.

3The Tribunal reviewed the pleadings and the respondent’s Request for Order and directed that the matter be scheduled for a Summary Hearing, pursuant to Rule 19A of the Tribunal’s Rules of Procedure. This Rule reads, in part, 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.

4Pursuant to Rule 19A.2, the Tribunal directed that the applicant make his submissions first, and that he “be prepared to respond to the allegations in the Request for Order about why the Application cannot succeed and is an abuse of process.” The Summary hearing was held on October 7, 2010, via teleconference.

5At the teleconference, the applicant asked to tape record the proceedings. The respondent did not object, but indicated that its consent was premised on the basis that if the applicant subsequently disputed a matter, that he would provide it with a copy of the tape. The applicant did not voice any objection to this condition, and I ruled that he would be allowed to tape the proceeding on the understanding that it was for his personal use and would not form part of the record of proceedings.

DECISION

6The Application does not have a reasonable prospect of success and is dismissed.

ANALYSIS

7The issue that Rule 19A directs the Tribunal to determine is whether the Application has “a reasonable prospect of success.” It is a new rule and so the jurisprudence in this area is not well-developed. In the first case decided under the new procedure, Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal provided the following guidance:

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.

8At the outset of the Summary Hearing, I explained to the applicant that an application under the Code is between him and any respondents he chooses to name (in this case the Ontario Association of Architects). It must contain allegations alleging discrimination by the respondent(s) named in the application on the basis of one or more grounds, in one or more of the areas listed in the Code. I asked the applicant to explain to me why he believed he had experienced discrimination using this framework. From the oral submissions that followed, it appeared that the applicant understood this direction.

9He acknowledged that his Application was against the Ontario Association of Architects and that it was based only on the area of employment. That is, he acknowledged that he had also selected “Membership in a Vocational Association” in his Application and then had made a deliberate decision to remove that as one of the areas when he crossed it out. With respect to grounds of discrimination, the applicant selected “sexual orientation” in his Application but made reference to his age and other Code-identified characteristics in his written submissions to the Tribunal. In his oral submissions, the applicant stated that he believed that he had been discriminated against on the basis of his sexual orientation initially and, more recently, on the basis of his age.

10From his recitation of his employment history, it is apparent that the applicant believes he experienced discrimination in employment on the basis of his sexual orientation from the time he was qualified as an architect in the 1970s. However, he stated that although he was let go from many positions, he was always able to find work in the field in the first 13 years of practice. This changed in 1990. With the exception of two stints of short-term contractual work in 1998 and 2002, he has not been able find architectural work. As indicated above, he attributes his more recent failures to find such work to the fact that he is getting older.

11In 1993, the applicant retired his membership in the Ontario Association of Architects (the “Association”), which means that he cannot hold himself out as an architect and can only do architectural work in limited situations.

12He feels that the Association is responsible for this discrimination because it is its members who are discriminating against him by failing to employ him. In addition, he states that in 1993 (the year he retired his membership), one of the Association’s employees promised him that if he continued to pay dues (and insurance), the Association could find him employment. Finally, he submits that, by failing to provide a complaint mechanism for architects to complain about the discriminatory conduct of other architects, the Association has allowed this discrimination to continue.

13The respondent correctly points out that it is a professional body, charged with the responsibility of governing architects in the public interest. It is “not charged with securing or assisting its members in finding employment.” Although it maintains an electronic “bulletin board” whereby members and interns can post their resumes and employers can post positions available, it is not responsible for who is hired and plays no role in monitoring these competitions. As a professional body, it monitors the conduct of its members via complaints. These complaints can come in from members of the public or from other members of the profession. Thus, if the applicant had felt that a specific member was conducting himself or herself in an unprofessional manner, he could have made a complaint regardless of his membership status.

14In filing his Application against the Association, the applicant was under the misunderstanding that the Association was liable not only for its conduct as a governing body, but also for the conduct of its individual members. As the respondent correctly points out, if the applicant believes that he has experienced discrimination at the hands of individual members, then any application is more properly brought against those individual members (keeping in mind, of course, the one-year limitation period set out in s. 34(1) of the Code).

15As noted above, the Code is concerned with remedying discrimination in certain social areas on the basis of proscribed grounds. It does not deal with general allegations of unfairness or other social ills. Although he did not pursue these allegations in his oral submissions, the applicant’s written submissions contain many references to his belief that the field of architecture and the building industry are riddled with corruption, and that buildings and communities are being designed that are unsustainable from an energy point of view. Even if true, these are not properly problems that can be addressed by the Tribunal.

16In light of the above, the Application makes no allegations that, if true, would result in a violation of the Code and there is no reasonable prospect that the Application will succeed. The Application is dismissed.