HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sergy Kasyanov

Applicant

-and-

Russian Student Association (RSA) at University of Toronto, The Governing Council of the University of Toronto, and Andriy Tsurkan

Respondents

DECISION

Adjudicator: Ken Bhattacharjee

Date: February 25, 2014

Citation: 2014 HRTO 260

Indexed as: Kasyanov v. Russian Student Association (RSA) at University of Toronto

APPEARANCES

Sergy Kasyanov, Applicant

Self-represented

Russian Student Association (RSA) at University of Toronto, Respondent

Valentin Sotov, Representative

The Governing Council of the University of Toronto, Respondent

Sari Springer, Counsel

Andriy Tsurkan, Respondent

Self-represented

Introduction

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), which alleged that the respondents subjected him to discrimination, reprisals, and threats of reprisal. The respondents filed Responses, which denied the allegations of discrimination, reprisal, and threats of reprisal, and requested that the Application be dismissed on a preliminary basis.

2The purpose of this Decision is to decide whether the Application should be dismissed on a preliminary basis because it is untimely and has no reasonable prospect of success. The parties attended a summary hearing where they had the opportunity to make oral submissions and present documents and cases, which addressed this issue. I have decided to dismiss the Application. The following are my reasons for the dismissal.

BACKGROUND

3Unless otherwise noted, the following facts are not in dispute. The applicant is a 52-year-old man. In 2005, he settled in Toronto as an immigrant from one of the republics of the former Soviet Union.

4The Russian Student Association (“RSA”) is a club at the University of Toronto (“U of T”), which holds social events, such as pub nights, picnics, and sports. The RSA’s constitution allows anyone who is interested in its activities to become a member, including persons who are not of Russian descent and non-students, but, in practice, its membership is predominantly composed of undergraduate students of Russian descent, and its events are populated almost entirely by young students who are around the age of 20.

5The individual respondent is a former U of T student, who was the president of the RSA when the applicant first made contact with the club in 2007.

6On July 22, 2007, the applicant found out that the RSA was holding its annual picnic at a beach, and decided to attend. At that time, he was 45 years old and not a student. There is a dispute about what happened at the picnic. The individual respondent alleges that the applicant, who he initially believed was a parent, offered alcohol to underage students, and made inappropriate sexual remarks and unwanted sexual advances towards young female students. The applicant, on the other hand, denies the allegations about his behaviour, and states that everything went well during the picnic.

7On August 19, 2007, when the applicant attempted to join an RSA group outing at an amusement park, the individual respondent told him that he was not welcome and refused to allow him to join the group. On January 18, 2008, when the applicant attempted to attend an RSA pub night, the individual respondent told him again that he was not welcome and refused to allow him to attend. On July 16, 2009, the individual respondent sent the applicant a message on Facebook, which stated that he was not allowed to attend the RSA’s upcoming annual picnic.

8In October 2011, the applicant began a non-degree granting, professional development program for highly skilled immigrants at U of T’s business school. In February 2012, when he was 50 years old and still in the program, he began sending complaints about the RSA to various organizations and offices at U of T, and requested their assistance to join the RSA. He did not allege that the RSA or the individual respondent had discriminated against him because of a Code ground, or otherwise violated the Code.

9On April 3, 2012, a staff member at the Office of Student Life (“OSL”) sent the applicant an email, which stated that the RSA’s executive had told her that it had stopped him from attending its events because of his behaviour at a past event where he had tried to provide alcohol to underage members, and made sexist remarks and used inappropriate language towards two female students. The staff member also stated that the RSA’s executive had the right to remove a person’s membership for harmful or offensive behaviour as long as it followed the process set out in its constitution.

10On April 4, 2012, the OSL staff member also sent the RSA’s executive an email, which stated that the RSA had the right to remove the applicant’s membership, but that the process had to be fair and transparent, and that the applicant had to be allowed to appeal the removal to RSA’s general membership.

11In response, the applicant sent the OSL and others at U of T several emails, which alleged that the RSA’s executive, and the individual respondent in particular, were acting undemocratically and with a lack of transparency, and that they should be investigated because they were likely fronts for Russian intelligence (the KGB) and presented a security risk to U of T and Canada. He did not allege that the RSA or the individual respondent had discriminated against him because of a Code ground, or otherwise violated the Code.

12On April 25, 2012, the RSA’s executive held a meeting and passed a resolution revoking the applicant’s membership. There is a dispute about the merits of the resolution. The RSA and the individual respondent allege that it was based on sexual harassment complaints from two female students. The applicant, on the other hand, alleges that the complaints were fabricated by the individual respondent.

13On April 26, 2012, the individual respondent sent the applicant an email, which attached the RSA’s constitution, the meeting minutes, two written complaints (one by the individual respondent and the other by a female student), and notice that the RSA had revoked his membership. The complaints contained the names of the two female students who had allegedly complained that the applicant had sexually harassed them in 2007.

14In response, the applicant tried to track down the two female students through the internet. He found an email address for one of them, and on May 1, 2012, sent her a message, which denied that he had made sexual remarks to her in 2007, and requested that she assist him in clarifying this matter. Later on the same day, the individual respondent sent the applicant an email, which warned him that the RSA could obtain a restraining order from campus police.

15On May 6, 2012, the individual respondent sent the applicant an email, which informed him that the appeal of the revocation of his membership would be heard at a meeting of the RSA’s general membership on May 27, 2012, and invited him to attend and present his case.

16On May 10, 2012, the OSL staff member sent the applicant an email, which stated that, in the OSL’s opinion, he was not a student or alumni of U of T because the professional development program that he was enrolled in was not an official, degree-granting program. The staff member also stated that the OSL respected the autonomy of the RSA to determine its own membership guidelines for someone who was not part of the U of T community.

17On May 14, 2012, a different OSL staff member sent the applicant an email, which reiterated that, given that he was not part of the U of T community (student, staff, faculty, or alumni), the OSL could not guarantee that it would provide oversight of the RSA’s process with respect to his participation/membership in the club.

18On May 17, 2012, U of T’s business school granted the applicant a certificate for completing the professional development program. The applicant then began applying for jobs at U of T.

19On May 27, 2012, the RSA’s general membership met to consider the appeal of the revocation of the applicant’s membership. The applicant did not attend the meeting. The general membership upheld the executive’s decision revoking the applicant’s membership.

20On June 12, 2012, the applicant sent a Facebook message to the other female student who had allegedly complained about him, which asked whether she had attended the RSA picnic in 2007. In response, she stated that she could not remember. On June 19, 2012, the individual respondent sent an email to the applicant, which stated that it had been brought to his attention that the applicant had contacted the two female students by email and on Facebook, and warned him that if he continued with this course of action, the RSA would obtain a restraining order from campus police.

21On July 6, 2012, the OSL’s Assistant Director sent the applicant an email, which stated that the RSA had a right not to include him as a member because, whether he agreed or not, the program that he took was not a recognized degree program at U of T, and did not qualify him as a member of the university community. He also stated that the RSA followed its constitution which is congruent with U of T’s Policy on the Recognition of Campus Groups.

22On July 9, 2012, the applicant sent an email to the OSL’s Assistant Director, which alleged that the OSL had ignored the RSA’s undemocratic practices, and might be facilitating the undercover activities of Russian intelligence. He did not allege that the RSA, the individual respondent, or the OSL staff had discriminated against him because of a Code ground, or otherwise violated the Code. On July 23, 2012, the Assistant Director sent the applicant an email, which stated that it would no longer communicate with him with respect to this matter.

23On August 22, 2012, the applicant sent an email to U of T’s President, which complained that the OSL was indulging the RSA’s illegal activities, and requested that the President set up a special commission to investigate the RSA for defamation, forgery, document falsification, and other illegal and criminal activities. He did not allege that the RSA, the individual respondent, or the OSL had discriminated against him because of a Code ground, or otherwise violated the Code. The President’s Office acknowledged receipt of his email, but did not provide a substantive response to it.

24By the end of September 2012, the applicant had applied for over 100 jobs at U of T, but had not been called for any interviews.

25On October 1, 2012, the applicant filed an Application with this Tribunal, which alleged that the respondents had discriminated against him with respect to services, employment and membership in a vocational association because of his place of origin, citizenship, creed, sex, and age, and subjected him to reprisals and threats of reprisal because he claimed his rights under the Code.

26The Application is long and detailed, and it is somewhat difficult to discern what the specific Code-related allegations are, but I understand them to be the following:

1. Between August 2007 and July 2009, the RSA and the individual respondent discriminated against him with respect to services because of his place of origin, citizenship, creed, sex, and age by refusing to allow him to attend events.

2. In April and May 2012, the RSA and the individual respondent discriminated against him with respect to services because of his place of origin, citizenship, creed, sex, and age, and subjected him to reprisals for claiming his rights under the Code, by revoking his membership.

3. In May and June 2012, the RSA and the individual respondent subjected him to threats of reprisal for claiming his rights under the Code by warning him that it would obtain a restraining order from campus police.

4. In April and May 2012, U of T discriminated against him with respect to services because of his place of origin, citizenship, creed, sex, and age by assisting the RSA and the individual respondent to develop a plan to revoke his membership.

5. Between May and September 2012, U of T subjected him to reprisals for claiming his rights under the Code by failing to grant him a single job interview.

27The Application also contains numerous opinions in support of the applicant’s allegations, and it is somewhat difficult to discern what evidence he has, or what evidence is reasonably available to him, which supports his Code-related allegations, but I understand such evidence to be the following:

1. In support of his allegation of discrimination against the RSA and the individual respondent, the applicant stated that when he attempted to join the RSA group outing at an amusement park on August 19, 2007, the individual respondent said to him, “We want you to leave and let us stay by ourselves, younger people. We don’t want older guys here.”

2. In support of his allegations of reprisal and threats of reprisal against the RSA and the individual respondent, the applicant stated that in response to the individual respondent’s statement at the amusement park, he told him that this kind of discrimination is prohibited by the Code, and in response to individual respondent refusing to allow him to attend the pub night, he again told him that he was violating the Code.

28On December 3, 2012, the RSA filed a Response, which denied the allegations of discrimination, reprisal, and threats of reprisal. The RSA admitted that the majority of its events are designed to attract and entertain a younger crowd around the age of 20, but stated that it does not exclude anyone from attending its events based on age or other similar criteria. The RSA stated that over the past three years, the applicant is the only person whom it has blocked from attending its events. The RSA stated that after it became aware that the applicant wanted to join the club, it asked the individual respondent what had happened in the past, and decided to revoke the applicant’s membership in accordance with U of T’s rules.

29On December 3, 2012, the individual respondent also filed a Response, which denied the allegations of discrimination, reprisal, and threats of reprisal. The individual respondent stated that the RSA refused to allow the applicant to attend events and revoked his membership for a non-Code related reason, namely, it had received complaints that he had offered alcohol to students, and made inappropriate sexual remarks and sexual advances towards female students at the RSA’s annual picnic in 2007.

30The RSA and the individual respondent both requested that the applicant’s allegations pertaining to incidents that occurred between 2007 and 2009 be dismissed because they were filed with the Tribunal outside the one-year time limit in the Code.

31On December 3, 2012, U of T filed a Response, which denied the allegations of discrimination and reprisal. U of T stated that in response to the applicant’s complaints, the OSL conducted a review, and was satisfied that the RSA had acted in accordance with its constitution and U of T’s Policy on the Recognition of Campus Groups. U of T also denied that it participated in any collusion or illegal activities with the RSA. U of T further stated that the applicant’s Code-related allegations are stand-alone assertions without any supporting evidence.

32On December 10, 2012, U of T filed a Request for Summary Hearing, which requested that the Application against it be dismissed on a preliminary basis because it has no reasonable prospect of success. U of T attached written submissions in support of its Request, which also noted that some of the applicant’s allegations against the other respondents appear to be outside the one-year time limit in the Code.

33On December 18, 2012 and February 1, 2013, the applicant filed Replies, which largely reiterated what was in his Application. However, in support of his allegation that the RSA and the individual respondent discriminated against him because of his age, he stated that when he attempted to join the RSA group outing at an amusement park on August 19, 2007, the individual respondent also said to him, “We just don’t want you here. We had already such encounters with older guys in RSA. We let them go, so should let you.” Furthermore, in support of his allegation that U of T discriminated against him with respect to services because of his place of origin, he stated that the OSL sent him emails which claimed that the program for immigrants that he was enrolled in was not part of the U of T community.

34On February 7, 2013, the applicant also filed a Response to the Request for Summary Hearing, which opposed the Request. The applicant attached written submissions in support of his Response.

35On April 25, 2013, the Tribunal issued a Case Assessment Direction, which granted U of T’s Request, and directed that a summary hearing be held by teleconference to decide whether the Application should be dismissed on a preliminary basis because it has no reasonable prospect of success and is untimely.

36In advance of the summary hearing, the applicant filed documents and U of T filed written submissions and case law.

37The summary hearing took place on July 15, 2013. A Russian-English interpreter was present to assist the applicant. All the parties made oral submissions. Following the summary hearing, the applicant and the individual respondent filed further written submissions.

ANALYSIS

Timeliness

38The first issue to decide is whether the Application should be dismissed in part because of a lack of timeliness. The statutory time limit for filing an application with the Tribunal and the circumstances under which a late application will be accepted are set out in subsections 34(1) and (2) of the Code:

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.

39In their submissions, the respondents requested that the applicant’s allegations pertaining to incidents that occurred between 2007 and 2009 be dismissed because they were filed with the Tribunal outside the one-year time limit in the Code.

40In his submissions, the applicant simply took the position that his whole Application is timely because there was a “series of incidents” which occurred between 2007 and 2012. He did not address whether his delay in filing an Application with respect to the alleged incidents that occurred between 2007 and 2009 was incurred in good faith.

41In these circumstances, the main issue to decide is whether the alleged Code-related incidents in the Application constitute a “series of incidents”. Generally, incidents have not been considered by the Tribunal to be part of a series of incidents if there is a break of more than one year between incidents. See, for example, Savage v. Toronto Transit Commission, 2010 HRTO 1360 at para. 9.

42In his pleadings, submissions, and supporting documents, the applicant provided particulars about the alleged Code-related incidents that occurred between August 2007 and July 2009 and between April and September 2012, but was very vague about what occurred between July 2009 and April 2012. He merely stated that during this time period he tried to contact the RSA’s current president about joining the club, but she failed to respond. In support of this statement, he attached Facebook messages from July 2009, November 2010, and what appears to be February 2012, which are partly in untranslated Russian and partly in English. In the English portions, there is an exchange in November 2010, where the president states, “You may contact Andrew Tsurkan through facebook or direct any questions you may have to me”, and the applicant responds, “Thanks, Tanya. Unfortunately, Mr. Tsurkan has records of acts of violence towards the members of the community.”

43In my view, the applicant has failed to establish that there were further alleged Code-related incidents that occurred between July 2009 and April 2012. His statements and supporting documents about what happened during this time period are simply too vague and inconclusive. At most, he has established that he was trying to have the RSA reverse or change its position, and it failed to respond, which is not a further alleged Code-related incident. See Garrie v. Janus Joan Inc., 2012 HRTO 1955 at paras. 32-42, and Mafinezam v. University of Toronto, 2010 HRTO 1495 at paras. 13-17.

44As such, I find that there was a break of approximately two years and nine months between the last alleged incident that occurred in July 2009 and the next alleged incident that occurred in April 2012. Flowing from this finding, I also find that the alleged incidents that occurred between 2007 and 2009 are beyond the one-year time limit in the Code. Furthermore, in the absence of an explanation from the applicant for the delay in filing an Application with respect to these alleged incidents, I am not satisfied that the delay was incurred in good faith, and it is not necessary to consider whether substantial prejudice will result to any person affected by the delay.

45Accordingly, the allegations in the Application relating to incidents that occurred between August 2007 and July 2009 are dismissed.

Reasonable Prospect of Success

46The second issue to decide is whether the remaining allegations, which relate to incidents that occurred between April and September 2012, have a reasonable prospect of success. These allegations appear to relate to ss. 1, 5, 8, and 9 of the Code, which provide:

1. Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability.

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.

8. Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.

9. No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.

47In his Application, the applicant also alleged that the respondents discriminated against him with respect to “membership in a vocational association”, but he has not explained, and I do not see, how the RSA and U of T are vocational associations. As such, the area of “membership in a vocational association” is struck from the Application.

48Rule 19A of the Tribunal’s Rules of Procedure provides for a summary hearing, following which an application may be dismissed, in whole or in part, if the Tribunal finds that there is no reasonable prospect that the application or part of the application will succeed. The approach to deciding whether an application has a reasonable prospect of success following a summary hearing was explained as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994 (“Dabic”) at paras. 8-10:

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.

In considering what evidence is reasonably available to the applicant, the Tribunal must be attentive to the fact that in some cases of alleged discrimination, information about the reasons for the actions taken by a respondent are within the sole knowledge of the respondent. Evidence about the reasons for actions taken by a respondent may sometimes come through the disclosure process and through cross-examination of the people involved. The Tribunal must consider whether there is a reasonable prospect that such evidence may lead to a finding of discrimination. However, when there is no reasonable prospect that any such evidence could allow the applicant to prove his or her case on a balance of probabilities, the application must be dismissed following the summary hearing.

49The Tribunal does not have the power to deal with general allegations of unfairness. For an Application to continue in the Tribunal’s process, there must be a basis beyond mere speculation and accusations to believe that an applicant could show discrimination on the basis of one of the grounds alleged in the Code. See Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389 at para. 17.

Allegation of Discrimination Against the RSA and the Individual Respondent

50I will begin with that the applicant’s allegation that in April and May 2012, the RSA and the individual respondent discriminated against him with respect to services because of his place of origin, citizenship, creed, sex, and age by revoking his membership.

51In his submissions, the applicant stated that this allegation has a reasonable prospect of success because:

1. With respect to Code grounds of place of origin and citizenship, the respondents would not have treated a person born and raised in Canada the same way that they treated him.

2. With respect to the Code ground of creed, the individual respondent acted contrary to and is opposed to the applicant’s belief in the rule of law, human rights, and democracy.

3. With respect to Code ground of sex, the respondents would not have treated a woman the same way that they treated him.

4. With respect to the Code ground of age, the RSA’s events are populated almost entirely by young people around the age of 20; according to the RSA’s online forum, the oldest member of the RSA was born in 1978 (the applicant was born in 1962); and the individual respondent explicitly told him the RSA did not want older guys to attend its events.

52When I asked the applicant why he wanted to join a club and attend events with people who were so much younger than him, he responded that his biological age is much less than his passport age. He also stated that he is a sporty person, he shares a common background and language with the people in the club, and the events were close to his home.

53The applicant’s allegation of discrimination based on place of origin, citizenship, creed, and sex can be dealt with fairly briefly because the applicant is merely speculating and opining about the link between the RSA and the individual respondent’s alleged actions and these Code grounds. He did not point to any evidence that can show a link between their alleged actions and these Code grounds. I therefore find, pursuant to the second branch of the Dabic test, that this allegation has no reasonable prospect of success.

54The more difficult issue to decide is whether the applicant’s allegation of discrimination based on age has a reasonable prospect of success. Although he pointed to some evidence that can show a link between the RSA and the individual respondent’s alleged actions and his age, in my view, this allegation also has no reasonable prospect of success because, pursuant to the first branch of the Dabic test, even if his factual allegations are true, what he alleges cannot reasonably be considered to amount to a Code violation.

55In Andrews v. Law Society of British Columbia, 1989 CanLII 2 (SCC), [1989] 1 S.C.R. 143, the Supreme Court of Canada defined discrimination as follows at pp. 174-75:

Discrimination is a distinction which, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, has an effect which imposes disadvantages not imposed upon others or which withholds or limits access to advantages available to other members of society.

56In B. v. Ontario (Human Rights Commission), 2002 SCC 66, [2002] 3 S.C.R. 403, the Court also stated at para. 4 that the broad goal of anti-discrimination statutes are to prevent the drawing of “negative distinctions based on irrelevant personal characteristics.”

57However, the Court has also emphasized that anti-discrimination law is concerned with substantive discrimination, not merely differential treatment. In McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l'Hôpital général de Montréal, 2007 SCC 4, [2007] 1 S.C.R. 161, Abella J., in her concurring reasons, stated at para. 49:

(…) there is a difference between discrimination and a distinction. Not every distinction is discriminatory. It is not enough to impugn an employer's conduct on the basis that what was done had a negative impact on an individual in a protected group. Such membership alone does not, without more, guarantee access to a human rights remedy. It is the link between that group membership and the arbitrariness of the disadvantaging criterion or conduct, either on its face or in its impact, that triggers the possibility of a remedy. And it is the claimant who bears this threshold burden.

58Furthermore, in Quebec (Attorney General) v. A, 2013 SCC 5, Abella J., writing for the majority on the analysis of discrimination under s. 15(1) of Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (U.K.), 1982, c. 11, stated, at para. 331, that courts and tribunals should engage in a flexible and contextual inquiry into whether a distinction has the effect of perpetuating arbitrary disadvantage on the claimant because of an enumerated ground, and that the contextual factors will vary from case to case because there is no rigid template.

59In my view, the unique contextual factors in this case are very important. The RSA is a student club at U of T, not a club serving the broader Russian community in Toronto. As such, its events are aimed at, and attended by, young students who are almost entirely around the age of 20. The RSA is also a social club, not an academic club. As such, it mainly organizes social events, such as pub nights, picnics and sports, not roundtable discussions on literature or politics. Students attend these events to socialize, party, play sports, and/or meet potential romantic partners amongst their peers.

60Social events held for students are common in high schools, colleges and universities. I do not believe that it is arbitrary for the people running such events to have concerns about an older man’s presence, even if he has not behaved inappropriately, because there is a significant maturity difference between an older man and a teenager or young adult, and sometimes young people consume alcohol before or at these events.

61For example, if a group of 14-year-old girls started a Justin Bieber fan club in their school, which anyone in the community could join, but their events were populated almost entirely by 14-year-old girls, and a middle-aged man started showing up at the events, I do not believe that any reasonable person would find it arbitrary to bar him from attending the events or joining the club, even if he was taking a professional development or continuing education course in the school, and was not behaving inappropriately during events.

62In my view, the purpose of the prohibition on age-based discrimination in the Code is not to protect the right of older men to attend social events for teenagers or young adults in all circumstances. Furthermore, student organizations which run such events have a duty to ensure that the young people in attendance are safe, and, in my view, should be given significant leeway to bar older men, who are not students, from attending their events and joining their organization.

63In the case at hand, the applicant had attempted to attend non-academic, social events, which were aimed at 20-year-olds, even though he was middle-aged. In fact, he was more than twice the age of the students in attendance, and more likely in the same age range as their parents. Furthermore, he was not a U of T student between August 2007 and July 2009, when the RSA initially barred him from its events, and even in April and May of 2012, when the RSA revoked his membership, he was not a registered undergraduate or graduate student.

64In these circumstances, even if it is true that the applicant did not behave inappropriately at the RSA picnic in 2007, and even if it is true that the individual respondent subsequently told the applicant that the events were for young people and older men were not welcome because of previous encounters with older men, in my view, what the applicant alleges cannot reasonably be considered to amount to a Code violation because barring him from attending events and revoking his membership did not have the effect of perpetuating an arbitrary disadvantage on him because of his age.

65At the heart of discrimination is the idea that people should not be subjected to an arbitrary disadvantage because of an irrelevant personal characteristic enumerated in the Code. Although the RSA and the individual respondent’s treatment of the applicant may have had the effect of imposing a disadvantage on him because of his age, I do not accept, given the contextual factors and facts identified above, that their actions were arbitrary and that the applicant’s age was an irrelevant personal characteristic.

66Accordingly, the applicant’s allegation that in April and May 2012, the RSA and the individual respondent discriminated against him with respect to services because of his place of origin, citizenship, creed, sex, and age is dismissed.

Allegations of Reprisal and Threats of Reprisal Against the RSA and the Individual Respondent

67I now turn to the applicant’s allegation that from April to June 2012, the RSA and the individual respondent subjected him to reprisals for claiming his rights under the Code by revoking his membership, and subjected him to threats of reprisal for claiming his rights under the Code by warning him that it would obtain a restraining order from campus police.

68In his submissions, the applicant stated that these allegations have a reasonable prospect of success because, prior to these incidents and in response to being barred from attending RSA events, he told the individual respondent that his actions were discriminatory and violated the Code.

69In Noble v. York University, 2010 HRTO 878, the Tribunal held at para. 33 that in an application alleging reprisal, the following elements must be established, on a balance of probabilities:

a) An action taken against, or threat made to, the applicant;

b) The alleged action or threat is related to the applicant having claimed, or attempted to enforce a right under the Code; and

c) An intention on the part of the respondent to retaliate for the claim or attempt to enforce the right.

70With respect to the applicant’s allegation of reprisal, even if it is true that the applicant claimed his rights under the Code in response to the individual respondent barring him from attending RSA events in August 2007 and January 2008, the fact remains that the individual respondent barred him before he claimed his rights under the Code, and the RSA revoked the applicant’s membership more than four years after he last allegedly claimed his rights under the Code.

71In these circumstance, I find, pursuant to the second branch of the Dabic test, that there is no reasonable prospect that the applicant can prove, on a balance of probabilities, that the RSA and the individual respondent’s decision to bar him and then revoke his membership were related to claiming his rights under the Code, and that the RSA and the individual respondent intended to retaliate against him for claiming his rights under the Code.

72With respect to the applicant’s allegation of threats of reprisal, the individual respondent warned the applicant that the RSA would obtain a restraining order from campus police more than four years after he last allegedly claimed his rights under the Code, and immediately after he attempted to contact the two female students who had allegedly complained that he had sexually harassed them.

73In these circumstances, I find, pursuant to the second branch of the Dabic test, that there is no reasonable prospect that the applicant can prove, on a balance of probabilities, that the RSA and the individual respondent’s warning that it would obtain a restraining order from campus police if he continued to attempt to contact the two female students was related to claiming his rights under the Code, and that the RSA and the individual respondent intended to threaten to retaliate against him for claiming his rights under the Code.

74Accordingly, the applicant’s allegation that from April to June 2012, the RSA and the individual respondent subjected him to reprisals and threats of reprisal for claiming his rights under the Code is dismissed.

Allegation of Discrimination Against U of T

75I will deal next with the applicant’s allegation that in April and May 2012, U of T discriminated against him with respect to services because of his place of origin, citizenship, creed, sex, and age by assisting the RSA and the individual respondent to develop a plan to revoke his membership.

76In his submissions, the applicant stated that this allegation has a reasonable prospect of success because the OSL claimed that the program for immigrants that he was enrolled in was not part of the U of T community. He also stated that U of T failed to investigate his complaints that the RSA and the individual respondent had discriminated against him and violated the Code.

77The applicant’s allegation of discrimination based on citizenship, creed, sex, and age can be dealt with fairly briefly because the applicant did not point to any evidence that can show a link between U of T’s alleged actions and these Code grounds. I therefore find, pursuant to the second branch of the Dabic test, that this allegation has no reasonable prospect of success.

78The main issue to decide is whether the applicant’s allegation of discrimination based on place of origin has a reasonable prospect of success. In my view, it does not. It is undisputed that an OSL staff member sent an email to the RSA’s executive, which informed them they had a right to revoke the applicant’s membership, but that they had to follow due process. That email, in and of itself, does not show a link between the OSL’s actions and the applicant’s place of origin.

79The applicant pointed to the OSL’s emails to him, which stated that he was not a part of the U of T community because the professional development program that he was enrolled in was a non-degree granting program. However, he did not allege, or point to any evidence which would show, that participants in other non-degree granting programs, which were not specifically for immigrants, were treated differently and considered to be part of the U of T community.

80The applicant also stated that U of T failed to investigate his complaints of discrimination. However, he was unable to point to a single email to U of T or a conversation with someone at U of T where he alleged that the RSA and the individual respondent had discriminated against him because of a Code ground, or otherwise violated the Code. In fact, the emails that he pointed to all make non-Code related allegations about the RSA and the individual respondent’s undemocratic actions, lack of transparency, and likely links to Russian intelligence (the KGB). Furthermore, the emails only request that U of T investigate the RSA and the individual respondent as potential security risks.

81In these circumstances, I find, pursuant to the second branch of the Dabic test, that there is no reasonable prospect that the applicant can prove, on a balance of probabilities, that U of T discriminated against him with respect to services because of his place of origin.

82Accordingly, the applicant’s allegation that in April and May 2012, U of T discriminated against him with respect to services because of his place of origin, citizenship, creed, sex, and age is dismissed.

Allegation of Reprisal Against U of T

83I now turn to the applicant’s allegation that between May and September 2012, U of T subjected him to reprisals for claiming his rights under the Code by failing to grant him a single job interview.

84In his submissions, the applicant pointed to an electronic document that shows that he applied for 167 jobs at U of T during this time period. He also stated that he cannot point to any additional evidence to support this allegation because the job competition files are in the possession of U of T.

85In my view, this is a bald allegation. I appreciate that U of T is in possession of the job competition files, but the applicant did not point to any evidence that he was qualified for any of the positions that he applied for. Furthermore, he did not point to any evidence that he claimed his rights under the Code during his communication and interactions with U of T.

86In these circumstances, I find, pursuant to the second branch of the Dabic test, that there is no reasonable prospect that the applicant can prove, on a balance of probabilities, that U of T’s decisions not to grant him job interviews were related to claiming his rights under the Code, and that U of T intended to retaliate against him for claiming his rights under the Code.

87Accordingly, the applicant’s allegation that between May and September 2012, U of T subjected him to reprisals for claiming his rights under the Code is dismissed.

ORDER

88The Application is dismissed.