Bernhard Koenig v. York University, 2013 HRTO 691

Human Rights Tribunal of Ontario

B E T W E E N:

Bernhard Koenig

Applicant

-and-

York University

Respondent

DECISION

Adjudicator: Jay Sengupta

Date: April 24, 2013

Citation: 2013 HRTO 691

Indexed as: Koenig v. York University

Appearances

Bernhard Koenig, Applicant

Self-represented

York University, Respondent

Joanna Rainbow, Counsel

Introduction

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of citizenship. Specifically, the applicant alleges that York University published discriminatory guidelines on its website that had the effect of excluding foreign nationals, such as him, from seeking an academic position.

2Prior to this Application being filed, the applicant had filed an Application against the University of Toronto, in which similar arguments had been raised and considered. That Application was dismissed. See Koenig v. University of Toronto, 2012 HRTO 767.

3The Tribunal on its own initiative ordered that a summary hearing be held in order to determine whether all or part of the present Application should be dismissed as having no reasonable prospect of success. In the Case Assessment Direction setting the matter down for a summary hearing, the applicant was directed to come prepared to make submissions with respect to section 16 of the Code and the Tribunal’s decision in Koenig v. University of Toronto, above.

4For the reasons that follow, this Application is dismissed.

DECISION

5The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure. The issue in a summary hearing is whether the 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.

6In Dabic v. Windsor Police Service, 2010 HRTO 1994 at paras. 8-9, 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.

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

7Under HRDC’s rules, all Canadian universities must include the following statement in their advertisements:

All qualified candidates are encouraged to apply; however Canadians and permanent residents will be given priority.

8The applicant indicates that the following language is posted on York University’s website:

A faculty position can be given to a non-Canadian applicant, only if there are no qualified Canadian applicants for the position. Unqualified means that no Canadians possess the minimal qualifications for the position.

9The applicant takes issue with this policy. He indicates that the policy does not ensure that the most qualified candidate will be selected for the position.

10He also argues that Labour Market Opinions used before other foreign professionals are hired do not require that all Canadian applicants be deemed unqualified and that foreign academics experience more disadvantageous treatment even when compared with other foreign professionals who are neither Canadian citizens nor permanent residents.

11I note that there is nothing in the allegations that would suggest that the applicant has actually applied for a job at the respondent university.

12Sections 16(1) and 16 (2) of the Code 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.

13As indicated above, section 16(1) provides that the Code is not infringed where requirements, qualifications or considerations exist, that would otherwise be found to be discriminatory, are imposed or authorized by law.

14The respondent argues, and I accept, that the requirement that citizenship be considered by giving priority to Canadian citizens or permanent residents, the provision the applicant says offends the Code, is one that is imposed or authorized by law. It is, as a result, not a breach of the Code.

15The applicant has also raised an argument that the policy in question is in violation of section 15 of the Canadian Charter of Rights and Freedoms. I note that there is a line of cases at the Tribunal that stand for the proposition that the Tribunal does not have the jurisdiction to consider the constitutionality of the guidelines published by the respondent university. See: Barber v. South East Community Care Access Centre, 2010 HRTO 581, at para. 7; Wilson v. Toronto Catholic District School Board, 2011 HRTO 1040, at para. 19; Hendershott v. Ontario (Community and Social Services), 2011 HRTO 482, at para. 8; and Kostiuk v. Toronto Community Housing Corporation, 2012 HRTO 388, at para. 18). The applicant has not persuaded me that I should depart from that line of cases.

16Given the very clear language contained in the HRSDC guidelines and the fact that the language clarifying the respondent university’s practices that the applicant seeks to challenge closely mirrors it, this is a case that is squarely addressed by the application of section 16(1) of the Code.

17Although the applicant advances a number of arguments in support of his position, none of them address the essential question of how, given the language in section 16(1) of the Code, his Application could have any reasonable prospect of success.

18Accordingly, this Application is dismissed.