HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Frank Nyitray
Applicant
-and-
Ryerson University Students Union, Ryerson Student Center/Student Campus Center, Canadian Federation of Students-Ontario, Continuing Education Students’ Association of Ryerson, Palin Foundation, Denise Hammond, Gilary Massa, Jermaine Bagnall, Toby Whitfield, Lise de Montbrun, Rodney Diverlus, Eric Newstadt, Joel Duff, Chris McNeil and Sean Carson
Respondents
INTERIM DECISION
Adjudicator: Kathleen Martin
Indexed as: Nyitray v. Ryerson University Students Union
1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on October 15, 2010, against Ryerson University Students Union, Canadian Federation of Students-Ontario, Continuing Education Students’ Association of Ryerson, Palin Foundation, Ryerson Student Center/Student Campus Center, and 16 individual respondents. The Application alleges discrimination in employment and services on the basis of disability and age as well as reprisal or threat of reprisal. This Interim Decision addresses whether the Tribunal has the jurisdiction to continue the Application against certain named respondents and on the basis of reprisal.
BACKGROUND
2The applicant is or was a student at Ryerson University and was employed by the Ryerson Student Union (“RSU”) for approximately one year ending in April 2009. Among other things, the applicant alleges that the RSU and/or various individuals associated with the RSU and other named organization respondents discriminated against him by making inappropriate remarks based on disability or age, denying him accommodation, and by forcing him to work overtime without compensation during his employment. The Application also refers to a number of allegations after the applicant ceased employment, including being denied requests for accessible services (e.g. a bus to an RSU parade and picnic) and being banned from the RSU and other facilities. The Application also references a number of allegations that the applicant characterizes as “reprisals”.
3On November 12, 2010, prior to delivering the Application to the respondents, the Tribunal’s Registrar issued a Notice of Intent to Dismiss (“NOID”) indicating that the Application may be outside of the jurisdiction of the Tribunal, as follows:
It appears that the Application against certain named respondents, Jermaine Bagnall, Liana Salvador, Lise de Montbrun, Rodney Diverlus, Caitlin Smith, Alex Kerner, Eric Newstadt, Chris McNeil, Mohammad Aumeer Ali, Daniel Vanervoort, and the Canadian Federation of Students – Ontario may be outside the Tribunal’s jurisdiction.
A review of the Application and the narrative setting out the incidents of alleged discrimination fails to identify any specific acts of discrimination within the meaning of the Code allegedly committed by this/these individuals and organization.
(…)
You allege discrimination based on “reprisal or threat of reprisal” but have failed to explain how the respondents’ behavior was related to any of the following: claiming or enforcing a right under the Code; instituting or participating in proceedings under the Code; or, refusing to infringe the right of another person under the Code [s.8]…
4The Tribunal invited the applicant to provide written submissions.
5The applicant filed written submissions on December 15, 2010. The applicant states that he is “agreeing on a without prejudice basis” to the removal of the individual respondents identified in the NOID from the Application, as well as two other individual respondents – Gilgary Massa and Sean Carson – “as they are/were acting as employees and/or agents of an organization already named as Respondents”. The applicant asks that the Canadian Federation of Students be retained as a respondent because of its role as an umbrella organization of the RSU, the fact that when he was an employee of the RSU, he was also part of the CFS, and that he made complaints directly to them about the alleged discrimination and harassment yet failed to receive a response.
6On the issue of reprisal, the applicant states that during his employment he advocated for disability issues, and as a result the RSU took various actions against him. Following his termination, the applicant alleges that the RSU, CESAR, and the Palin Foundation engaged in a campaign of discrimination and harassment against him. In addition, the applicant states that he relies on the allegations he made in the narrative to the Application.
DECISION
7An application will only be dismissed at this stage of the proceedings in all or in part if it is “plain and obvious” on the face of the application that it does not fall within the Tribunal’s jurisdiction. A decision to continue to deal with an application in these circumstances is not a final decision regarding the Tribunal’s jurisdiction in respect to the application (Rule 13.5).
8While the applicant expressed his agreement to not proceed against various individual respondents, he qualifies his agreement by stating it is “without prejudice” and that the individuals are or were acting as employees or agents of the named organizations, a qualification that in the usual course a respondent will address. In the face of a qualified agreement, I find it appropriate to consider the jurisdictional issues raised in the usual manner.
9In my view, it is plain and obvious on the face of the Application that there is no jurisdiction to proceed against the named individual respondents Liana Salvador, Caitlin Smith, Mohammad Ali, and Daniel Vanervoort. The applicant’s written submissions fail to explain how each of them is alleged to have breached the Code as there are no allegations which are attributed specifically to them. The Tribunal therefore orders that they be removed as respondents to the Application.
10In addition, I find it plain and obvious that there is no jurisdiction to proceed against Alex Kerner. The only specific allegation against Mr. Kerner is an allegation that he “verbally assaulted” two other persons; there is no allegation that Mr. Kerner is alleged to have breached the applicant’s rights under the Code.
11The style of cause shall be amended to remove Liana Salvador, Caitlin Smith, Mohammad Ali, Daniel Vanervoort, and Alex Kerner.
12At this stage, the Application will continue to be processed against the remaining respondents. It is not plain and obvious that the Tribunal has no jurisdiction in respect of those respondents as the Application does identify acts of discrimination allegedly committed by the individuals and the organization respondent CFS.
13This is not a final decision regarding the appropriateness of the inclusion of the remaining respondents as parties. In responding to the Application, the respondents may wish to consider the Tribunal’s caselaw on the naming of individual respondents. See Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14; and Persaud v. Toronto District School Board, 2008 HRTO 31.
14With respect to reprisal, it is not plain and obvious that some of the allegations in the Application could not constitute a reprisal for claiming or enforcing a right under the Code. The applicant alleges that he advocated for disability issues while employed with the RSU, and that he then faced a number of negative consequences for doing so. Accordingly, this ground will remain in the Application.
15The Application will be delivered to the remaining respondents who are required to respond in accordance with the Tribunal’s Rules.
16I am not seized.
Dated at Toronto, this 3^rd^ day of March, 2011.
”signed by”__________
Kathleen Martin
Vice-chair