Saggi Nevo v. York University, 2013 HRTO 1146

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Saggi Nevo

Applicant

-and-

York University

Respondent

DECISION

Adjudicator: Ruth Carey

Date: July 2, 2013

Citation: 2013 HRTO 1146

Indexed as: Nevo v. York University

APPEARANCES

Saggi Nevo, Applicant

Self-represented

York University, Respondent

Joanna Rainbow, Counsel

Introduction

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of marital status, family status, and association with a person identified by a protected ground.

2The applicant is a Canadian academic currently working for a university in the United States. His wife is also an academic in the same field as the applicant. She works for the respondent university. In 2010 and 2011, the applicant unsuccessfully applied for academic positions with the respondent in the same faculty where his spouse works. The Application raises general allegations of unfairness in the hiring processes conducted by the respondent that are outside of the jurisdiction of the Tribunal because they are unrelated to the Code. But the Application also alleges that one of the reasons the applicant was not hired by the respondent is because of his marital relationship with a current faculty member, and that this constitutes discrimination under the Code.

3Pursuant to a Case Assessment Direction (‘CAD’) issued on April 3, 2013, the Tribunal granted the respondent’s Request for Summary Hearing. The CAD said that at the summary hearing the parties should be prepared to address the application of s. 24(1)(d) of the Code and the issue of delay.

4The summary hearing was held via teleconference on June 25, 2013.

5Rule 19A of the Tribunal’s Rules of Practice deals with summary hearings. It came into effect on July 1, 2010 and reads 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.

6The purpose of a summary hearing is to consider, early in the proceeding, whether an application should be dismissed in whole or in part. The test that is applied at a summary hearing is: is there no reasonable prospect that the Application will succeed? At the summary hearing stage, the Tribunal is not determining whether the applicant is telling the truth or assessing the impact of the treatment he or she experienced. The test of no reasonable prospect of success is determined by assuming the applicant's version of events is true unless there is some clear evidence to the contrary.

ANALYSIS

7Section 5(1) of the Code states:

5. (1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.

8There are a number of defences to allegations of discrimination in employment under the Code. Section 24(1)(d) of the Code says:

24. (1) The right under section 5 to equal treatment with respect to employment is not infringed where,

(d) an employer grants or withholds employment or advancement in employment to a person who is the spouse, child or parent of the employer or an employee;

9As stated by the Supreme Court of Canada in B. v. Ontario (Human Rights Commission), 2002 SCC 66 (at para. 41):

This section of the Code provides a defence for employers who discriminate on the basis of the relative marital or family status in certain circumstances, i.e., where an employer has a nepotism or anti-nepotism policy.

10The Application alleges that the respondent twice withheld an offer of employment to the applicant because he was the spouse of an employee of the respondent. Assuming the facts as stated in the Application are true, I am satisfied that s. 24(1)(d) of the Code is a complete defence to the claim that the respondent’s decision not to hire the applicant was discrimination on the basis of marital status.

11The applicant argued that s. 24(1)(d) should be interpreted as meaning it is permissible for an employer to adopt a nepotism policy (as in a family firm) or an anti-nepotism policy (as is alleged here) but only where that policy forms part of the hiring criteria. In other words, the applicant urges the Tribunal to take the position that employers engaging in a hiring process have a duty to inform applicants or prospective applicants of any such hiring criteria in advance; and absence such notice, not hiring a person because he or she is married to a current employee should be considered impermissible discrimination.

12The applicant’s argument is not supported by a purposive reading of the section or the Code. Section 24(1)(d) clearly says it is not a breach of section 5 of the Code for an employer to refuse to hire someone because they are the spouse of an employee. There is nothing in the section, or in the Code as a whole, that would support the proposition that the defence does not apply unless the employer announces the intention to use nepotism or anti-nepotism criteria at the beginning of the hiring process. If that was the intention of the legislature in enacting the provision then it could easily have worded the section to say so.

13The Application also alleges discrimination in employment on the grounds of family status and association with a person identified by a protected ground.

14Pursuant to s. 10(1) of the Code, family status means the status of being in a parent and child relationship. The Application does not allege that the respondent failed to hire the applicant because he is a parent, or because he is the son or parent of a particular individual. That position was also not argued at the summary hearing. Given the definition of family status under the Code, I am satisfied that there is no reasonable prospect that the Application will be successful on that ground.

15Section 12 of the Code says:

12. A right under Part I is infringed where the discrimination is because of relationship, association or dealings with a person or persons identified by a prohibited ground of discrimination.

16In Knibbs v. Brant Artillery Gunners Club, 2011 HRTO 1032, the Tribunal stated: “Section 12 is an interpretive provision of the Code. It is obviously intended to catch situations where there is discrimination, but the victim’s circumstances do not fit squarely into the wording in Part I of the Code.” The provision requires an applicant to establish that: he or she has some sort of relationship, association or dealings with another person or group of persons; that the other person or group is identifiable by one of the prohibited grounds in the Code; and that the treatment complained of was connected to the applicant’s relationship with the other person or group. For example, in Giguere v. Popeye Restaurant, 2008 HRTO 2, the Tribunal found it was a breach of the Code where the termination of the applicant’s employment was connected to the fact that her spouse was HIV and Hepatitis C positive. In Barclay v. Royal Canadian Legion, Branch 12 (1997), 1997 CanLII 24838 (ON HRT), 31 C.H.R.R. D/486, the Board of Inquiry found that a person who is not of African or Aboriginal ancestry is protected under section 12 when he or she objects to racist remarks directed at members of those ethnic groups; and in John v. Johnstone (September 16, 1977), No. 82, Eberts (Ont. Bd. Of Inquiry) an eviction based on the race of a tenant’s dinner guest was found to be discrimination.

17The Application does not allege that the applicant’s spouse is identifiable by one of the protected grounds, or that the treatment in question was connected to her membership in that social group. That position was also not argued during the summary hearing. As a result, I am satisfied that there is no reasonable prospect of success with respect to the allegation that the respondent’s failure to hire the applicant was discrimination on the basis of association with a person identified by a protected ground.

18The CAD instructed the parties to speak to the issue of delay pursuant to s. 34(1) and (2) of the Code at the summary hearing because the first hiring process complained of in the Application was concluded more than one year prior to the date the Application was filed. Given the findings above it is not necessary for the Tribunal to determine whether or not the first hiring process was part of a series of incidents pursuant to s. 34(1)(b) of the Code or whether the delay was incurred in good faith and no substantial prejudice would result as a result of the delay.

19In my view, for the reasons set out above, there is no reasonable prospect that the applicant can prove discrimination by the respondent with respect to employment because of marital status, family status, and association with a person identified by a protected ground.

20Accordingly, there is no reasonable prospect that the Application will succeed and it is dismissed.

ORDER

21The Application is dismissed.