Murray v. Toronto Electric Model Aviation Club, 2014 HRTO 1327

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Clair Murray

Applicant

-and-

Toronto Electric Model Aviation Club and Michael Rogozinsky

Respondents

INTERIM DECISION

Adjudicator: Paul Aterman

Date: September 9, 2014

Citation: 2014 HRTO 1327

Indexed as: Murray v. Toronto Electric Model Aviation Club

WRITTEN SUBMISSIONS

Clair Murray, Applicant

Self-represented

Toronto Electric Model Aviation Club, Respondent

Simon Hinchcliffe, Representative

Michael Rogozinsky, Respondent

Self-represented

1This Application alleges discrimination with respect to employment because of age contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Reprisal is also alleged.

2The corporate respondent Toronto Electric Model Aviation Club (“TEMAC”) is a hobby club, created for the purpose of flying toy and model airplanes. It is an incorporated, not for profit organisation run by a volunteer board of directors. TEMAC did not employ the applicant and does not employ anyone.

3The applicant held the volunteer position of Chief Flight Instructor (“CFI”) for TEMAC from 2007 until he was replaced by a decision of the Board of Directors on August 1, 2012. At the time that decision was made, the personal respondent was what is termed in the materials before the Tribunal an “advisor” to the Board.

4The applicant alleges that his age was a factor in the decision to remove him as CFI, and that this was discriminatory. As a result he filed this Application. He also alleges that the personal respondent posted comments about him on an online forum for model airplane enthusiasts that were critical of him for having brought this Application. The applicant believes that these posts constitute a reprisal for having attempted to exercise his human rights.

5The respondents request that this Application be dismissed on two grounds. One is that it is framed as discrimination in employment, but neither respondent employed the applicant. The other is that the alleged discrimination took place more than a year before the applicant brought this Application.

6Although the applicant has wrongly characterised his relationship with TEMAC as that of employee and employer, it is evident from all of the pleadings filed with the Tribunal that what is at issue here is how the applicant feels he was treated as a member of a social club. The respondents both understand this and this is clearly reflected in their respective Responses.

7The Tribunal has consistently held that the relationship between a social club and its member falls within the meaning of “services” in section 1 of the Code. See Barclay v. Royal Canadian Legion, Branch 12 (1997), 1997 CanLII 24838 (ON HRT), 31 C.H.R.R. D/486 (Ont. Bd. Inq.) and Martinie v. Italian Society of Port Arthur (1995), 1995 CanLII 18190 (ON HRT), 24 C.H.R.R. D/169 (Ont. Bd. Inq.).

8To dismiss this Application because the applicant – who is not represented by counsel – has wrongly identified this as a case of alleged discrimination in employment would allow form to triumph over substance. Because all the parties understand that in substance the allegations are ones of discrimination in the provision of services, I will treat the Application as such. For these reasons the request to dismiss the Application because the applicant has alleged discrimination in employment is denied.

9Regarding the issue of delay, Section 34 of the Code establishes a statutory time limit for filing applications, subject to certain exceptions. The relevant portions of section 34 are 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.

10In this case the Application was filed on January 28, 2014. The alleged action of age discrimination took place on August 1, 2012, which was the effective date of the applicant’s replacement as CFI.

11The applicant maintains that this is not the last alleged incident of discrimination or reprisal. He refers to subsequent email exchanges between himself and the respondents as examples of discrimination. He also refers to posts by the personal respondent on an online forum for model airplane enthusiasts made in 2012 and 2013 as instances of reprisal. The last posting was made on January 31, 2013.

12An Application will not be dismissed for delay if the alleged instances of discrimination form a series and the last incident in the series took place within a year of filing the Application (see for example the Tribunal’s decision in Garrie v. Janus Joan Inc., 2012 HRTO 1955). In order to determine the question of delay, it is necessary to decide whether the alleged incidents constitute a series of incidents within the meaning of s.34(1)(b) of the Code.

13Another issue which needs to be determined is whether the Application has no reasonable prospect of success as against the personal respondent. The applicant appears to allege that, although the personal respondent was no longer a member of the TEMAC Board of Directors, he had some degree of authority within the club that could extend to making allegedly discriminatory decisions. Furthermore, it is unclear whether the 2012 and 2013 web postings by the personal respondent were made by him in anything other than his purely personal capacity. In other words, an issue that will need to be determined is whether, at any of the relevant times, the personal respondent stood in a relationship of service provider in relation to the applicant.

14It is appropriate to hold a hearing to determine, as preliminary matters, whether the Application should be dismissed for delay and whether it has no reasonable prospect of success as against the personal respondent.

15The Registrar will schedule a half-day hearing by teleconference. The applicant will proceed first during this hearing. The applicant shall make argument about why the Application should not be dismissed for delay and as having no reasonable prospect of success, and point to the evidence on which the applicant will establish that the Application was both timely and that it has a reasonable prospect of success as against the personal respondent. No witnesses will give evidence during the hearing.

16The parties shall deliver to each other and file with the Tribunal copies of any further documents or cases they intend to rely upon no later than 14 days prior to the teleconference.

order

17The request to dismiss the Application on the ground that it is framed as discrimination in employment is denied.

18The Registrar is schedule a half-day hearing by teleconference to deal with the issues of whether the Application should be dismissed for delay and whether it has no reasonable prospect of success as against the personal respondent. The parties shall deliver to each other and file with the Tribunal copies of any further documents or cases they intend to rely upon no later than 14 days prior to the teleconference.