HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Bernhard Koenig

Applicant

-and-

University of Toronto

Respondent

DecisION

Adjudicator: David Muir

Date: April 17, 2012

Citation: 2012 HRTO 767

Indexed as: Koenig v. University of Toronto

WRITTEN SUBMISSIONS

Bernhard Koenig, Applicant ) Self-represented

University of Toronto, Respondent ) Sari Springer, Counsel

1This is an Application filed pursuant to section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). In his Application the applicant has alleged that his right to be free of discrimination in employment on the basis of citizenship was infringed by the respondent.

2The Tribunal, in a Case Assessment Direction issued on January 11, 2012, requested the parties’ submissions on whether this Application falls within the jurisdiction of the Tribunal. The Tribunal sought the parties’ submission on two issues. First, whether all or part of the Application was outside of the Tribunal’s jurisdiction because it was filed outside of the time limits prescribed in section 34(1) and (2) of the Code. The second issue was whether the allegation that the respondent’s job advertisements were discriminatory fell outside the Tribunal’s jurisdiction because of the application of s. 16 of the Code.

3In addition to these issues, a review of the Application suggests that much of what is alleged in the Application makes no clear connection to the cited ground of citizenship. The respondent in their submissions squarely raised this issue and the applicant responded to those submissions and accordingly, I will consider this issue as well.

Background

4In 2008 the applicant was in the second year of a two-year post-doctoral fellowship in the Mathematics Department of the University of Toronto. His sponsor was a Professor T. The applicant alleges that he experienced harassment and discrimination in 2008 because of a reprimand allegedly issued to Professor T. Although this is not at all clear from the Application, I gather from the materials subsequently filed by both parties that the applicant believes that Professor T believed that he was involved in a “political intrigue” that led to the reprimand of Professor T and accordingly the Professor held a grudge against him culminating in harassment and discrimination of the applicant. The “political intrigue” is said by the applicant to have related to the fact that Professor T held two positions, one with the respondent and another in Europe and may have been perceived as not living up to his responsibilities here.

5The harassment and discrimination allegedly experienced by the applicant is not described at all, but the applicant does allege as indicated that Professor T held a grudge against him. The applicant also states that because he was the possible beneficiary of the “political intrigue” the purpose of which was to cause Professor T to leave the department, the applicant felt the grudge personally. The applicant also alleges his fellowship was not extended and he was not successful in being appointed to a tenure track position. The applicant does not detail how these outcomes are related to the grudge or what role Professor T played in these decisions.

6The remaining details of the narrative relate to the applicant’s efforts to address his concerns with various officials of the University. So, for example, the applicant complained about discrimination to the Chair of the Department twice in 2008. In the Fall 2009 he raised the issue with the ombudsperson for the University, who determined that there was no basis for intervention in November 2009. Finally, the applicant raised the issue with the Vice-President of Human Resources for the respondent in July 2011. The Vice-President of Human Resources determined in October 2011 that there was no need for any action on her part because there had been no reprimand of Professor T in 2008, and no basis to conclude that the applicant had been discriminated against because of his perceived role in the departmental intrigues. It is important to note that the applicant has never alleged in these internal complaints that his difficulties with Professor T or the Department had anything to do with his citizenship. Rather, his concern has been throughout that because of his perceived role in the “political intrigue” in the Department he has been subject to harassment, discrimination and a poisoned work environment.

The Delay Issue

7Sections 34(1) and (2) of the Code provide as follows:

34. (1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

8This Application is in large part out of time. The Code requires a person who wishes to pursue a claim of discrimination to bring the claim forward by filing an Application within one year of the alleged incident, or where there is a series of incidents, within one year of the date of the last incident. This is a mandatory provision, subject only to section 34(2). The mandatory one-year limitation period is consistent with the policy objective, expressed elsewhere in the Code, that human rights claims should be dealt with expeditiously. Thus, the Code requires an individual to act with all due diligence, and file their application within one year, when they may seek to pursue a human rights claim.

9The Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for the delay, while recognizing that there will be legitimate circumstances, often related to the human rights claim itself, that justifies exercising the discretion under section 34(2). See Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241.

10Assuming for the moment that any of the allegations related to the political intrigue in the department and the alleged fall out in 2008 raise any Code issues, they are significantly out of time. The question becomes whether or not the applicant can establish a good faith explanation for the delay, the onus resting with him to do so. For the reasons set out below, I am not satisfied that the applicant has met his onus in this regard.

11The applicant in explaining the delay suggests that he only became aware of what he described as attempts by members of the Department to cover up the “political intrigue” and consequent alleged reprimand of Professor T during the course of the investigations by the Ombudsperson and the Vice-President. Similarly, while the applicant concedes that the determination of the Vice-President of Human Resources, Angela Hildyard, in October 2011 is not a further incident of discrimination but he says that it provided proof to him of what he had been alleging for some time that there was an attempt to deny the “political intrigue”.

12It is well established that gathering further information or evidence is not a sufficient justification for delay in filing an Application. See Krajisnik v. Linamar, 2011 HRTO 143, and Miller v. Prudential Lifestyle Real Estate, above. In this regard, the applicant’s claims are essentially unchanged from his first iteration of them in 2008 and 2009. There is no basis to conclude that the applicant did not have all of the information he needed to file this Application at the latest by sometime before the end of 2008. The applicant attempts to characterize the actions of the various individuals who were consulted in the course of the subsequent investigation by the Ombudsperson the Vice-President and others as further acts of discrimination. What the applicant is relying on is the repetition of positions taken by those involved in the events of 2008. These are not further acts of discrimination.

13Otherwise, the applicant offers no explanation for the significant delay from 2008 to November 2011, and accordingly, these aspects of the Application must be dismissed for delay.

Is the Code engaged by the allegations related to the “political intrigue” in 2008?

14I would also dismiss these allegations related to the “political intrigue” on the basis that there is no allegation in respect of the 2008 events that engages any of the protected grounds set out in the Code. It is telling perhaps that the applicant does not identify his citizenship although it can be inferred that the applicant is not a Canadian citizen by his claim that the job postings of the University are discriminatory in announcing a preference for Canadian citizens. The applicant’s failure to identify his citizenship may be because he understood that it was not material to his allegations of harassment and discrimination in 2008, flowing from a fundamental misunderstanding of the scope of the Code’s protections.

15It is clear from the allegations in the Application and its reiteration in his previous efforts to resolve his issues internally that the applicant believes that it is his right to be free of personal harassment in the workplace irrespective of the reasons for it. The applicant misapprehends the scope of the Code’s protections and the Tribunal’s jurisdiction. The Tribunal has no general jurisdiction to remedy unfairness in the work place or alleged harassment and discrimination except in respect of the protected grounds in the Code – i.e. sex, race, colour, etc., and as framed by this Application, citizenship. However there is nothing in this Application as it relates to the “political intrigue” in 2008 and its alleged consequences for the applicant that relates to the ground he has claimed. Assuming for the moment that what the applicant alleges is accurate, his claim is that because he was perceived to be involved in a “political intrigue” to force Professor T to live up to his responsibilities as a member of the Department, Professor T held a grudge against the applicant. This may not have been fair or just in some sense, but it is not a situation for which the Code provides a remedy. For these reasons as well I would dismiss this aspect of the Application.

The Section 16 issue

16The other allegation in the complaint is that the respondent’s job advertisements are discriminatory in that they indicate that Canadian citizens will be preferred in hiring.

17The respondent relies on both of sections 16(1) and 16 (2) of the Code in respect of this issues. These sections provide as follows:

16. (1) A right under Part I to non-discrimination because of citizenship is not infringed where Canadian citizenship is a requirement, qualification or consideration imposed or authorized by law.

(2) A right under Part I to non-discrimination because of citizenship is not infringed where Canadian citizenship or lawful admission to Canada for permanent residence is a requirement, qualification or consideration adopted for the purpose of fostering and developing participation in cultural, educational, trade union or athletic activities by Canadian citizens or persons lawfully admitted to Canada for permanent residence.

18The respondent agrees that its advertisements for positions in the Department of Mathematics do contain the following statement: “All qualified candidates are encouraged to apply, however, Canadians and permanent residents will be given priority.” But contrary to the applicant’s allegations, states the respondent, the statement is not discriminatory; rather it is required by law – in particular the legal requirement that prior to hiring a foreign national in Canada, an employer must apply for a Labour Market Opinion (“LMO”) from Human Resources and Skills Development Canada (“HRSDC”).

19The respondent states that the procedure for doing so is outlined in the Immigration and Refugee Protection Regulations SOR/2002-227 (“IRPR”). The respondent also states that the HRSDC has published guidelines regarding the recruitment efforts that must be made which include advertising the vacant position in Canada and including in the advertisement the statement about which the applicant has complained of in this Application.

20The respondent argues that further to these legal requirements the statement complained of by the applicant is sanctioned by section 16(1) of the Code. Similarly, the respondent states that the wording of the job advertisements also accords with section 16(2) of the Code which specifically allows for an exemption where Canadian citizenship and permanent residency is a consideration adopted for the purpose of developing participation in educational activities by Canadians or permanent residents.

21The applicant’s initial submission on this point was that section 16(2) protects discrimination where Canadian citizenship is “a requirement, qualification, or consideration” adopted for certain purposes. The applicant states that this exemption does not apply here because “one of the common formulations is that “Canadian citizens will be given priority”. In the applicant’s submissions the section does not apply because a “preference or priority” is different from a requirement or qualification. I do not agree. It seems to me that the applicant’s submission amounts to nothing more than a play on words. The question is whether there is a requirement that job advertisements are required to indicate that Canadian citizens will be given preference. The applicant does not actually take issue with that proposition except in a general sense that the requirement is discriminatory or unfair. I find that section 16(1) is applicable to this situation and protects a requirement imposed on the respondent and applicant in this case by law.

22In his reply submissions, the applicant did not take issue with the central proposition advanced by the respondent – that the IRPR and regulations under that statute require it to include the disputed statement in their job advertisements. Rather, he states that these requirements do not require that Canadian citizens should “be given preference in every single job advertisement”.

23The applicant relies on what appear to be exemptions from the general requirements that Canadian citizens be given preference in hiring. The applicant relies on section 203(3)(e) of the IRPR which provides that an LMO will be based on “whether the employer has made … reasonable efforts to hire and train Canadian citizens. The applicant states that by definition the respondent is in the business of training Canadian citizens. The applicant also relies on s.203(3)(b) which provides an exemption where “the employment of the foreign national is likely to result in the creation or transfer of skills and knowledge for the benefit of Canadian citizens…” The applicant’s position on this point is difficult to understand. The sections of the IRPR that the applicant relies on provide for exceptions to the general requirement of the IRPR. Accordingly, where an employer proposes to hire a non-citizen, it must establish that they have made every reasonable effort to hire or train a Canadian, etc.

24The applicant also continued to take issue with this regime on the grounds of general fairness. He characterizes the HRSDC guidelines as “highly dangerous and xenophobic”. The applicant also states that he does not understand how a federal agency can instruct an Ontario university on recruitment matters and believes that the requirements of the IRPR and HRSDC are contrary to the general thrust of the Code. In a sense the applicant is correct, but that is the nature of various provisions of the Code which protect practices which would otherwise run afoul of its anti-discrimination provisions. Section 16 is one such provision and for all of the reasons set out above, I find that it applies to the complained of job advertisements.

25I do agree with the applicant that section 16(2) requires a further enquiry into the purposes of the “requirement, qualification or consideration”. Based on the material filed it would be difficult to conclude with any certainty whether these purposes were met, and although section 16(2) may also apply there is no need to consider its application having concluded that section 16(1) does apply.

26For all of these reasons this Application is dismissed.