Murray v. Toronto Electric Model Aviation Club, 2016 HRTO 1692

Human Rights Tribunal of Ontario

Between:

Clair Murray Applicant

-and-

Toronto Electric Model Aviation Club and Michael Rogozinsky Respondents

Decision

Adjudicator: Brian Cook Date: December 29, 2016 Citation: 2016 HRTO 1692 Indexed as: Murray v. Toronto Electric Model Aviation Club

Appearances

Clair Murray, Applicant Self-represented

Toronto Electric Model Aviation Club, Respondent Simon Hinchcliffe, Representative

Michael Rogozinsky, Respondent Self-represented

1This Application alleges discrimination on the basis of age and reprisal for raising the allegation of age discrimination contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The Toronto Electric Motor Aviation Club (TEMAC) is an organization that promotes electric model airplanes as a hobby. It was started by the personal respondent and is run by volunteer members. The organization has by-laws and the operation of the club is overseen by a Board of Directors. The president of the Board of Directors is Simon Hinchcliffe.

3The applicant was the Chief Flight Instructor (CFI) and he helped teach new members of the club to fly their model airplanes.

4In this Application, the applicant alleges that he was asked to step down from his position as CFI and that this was discrimination on the basis of age. He further alleges that the personal respondent reprised against him when he sought to enforce his Code-protected right to be free from discrimination on the basis of age.

5The respondents agree that the applicant was asked to step down from his position as CFI. They assert that this was because the applicant was causing conflict in the organization and was difficult to work with, and had nothing to do with the applicant’s age.

6In Interim Decision 2014 HRTO 1327, the Tribunal determined that the Application did not relate to employment as originally indicated in the Application but did relate to the area of services.

7The Application was heard on August 31, 2016. The applicant and the personal respondent were present. Mr. Hinchcliffe was present on behalf of TEMAC.

Background

8The applicant was the TEMAC CFI from 2008 to August 2012. On July 26, 2012, he received the following email from Mr. Hinchliffe:

Dear Clair,

As part of the ongoing development of the club the Board has actively pursued the promotion of younger members of the club to positions of responsibility. In keeping with this goal we are accelerating the promotion of [MH] to Chief Flying Instructor effective August 1, 2012. We know you will continue to support the instruction Program as a member of the team. Doing this now will allow [MH] to be CFI for the balance of the season and enable him to get a feel for any alterations he may wish to introduce.

The Board is grateful for your efforts in creating and maintaining a training program that is the envy of many clubs. The Training Program is an essential part of the recruiting new membership and encouraging younger members. Our future depends heavily on building on the fine start you have made.

Thank you for your continued support.

9The applicant alleges that the email clearly shows that the reason he was asked to step aside was age discrimination. The respondents agree that on its face, the email could be seen as suggesting that the applicant’s age was a factor. The respondents say, however, that the suggestion that a younger person should take over as CFI was made so as to not have to get into the real reasons for asking the applicant to step aside, which had to do with significant inter-personal conflict.

Conflict before the email

10The applicant agreed that there was some inter-personal conflict between him and other club members prior to the July 26, 2012 email. However, he testified that the conflict arose because of the improper behaviour of others.

11An ongoing source of conflict was a tension between members wanting to have fun flying their model aircraft, and safety. The applicant was focussed on safety. He felt that others were not sufficiently focussed on safety and as a result there were too many crashes and other safety issues. A few weeks before the July 26 email, the applicant believed that he had been “buzzed” by Mr. Hinchcliffe and others who were operating their planes when the planes came too close. The applicant expressed concern about this.

12In addition to his position as CFI with TEMAC, the applicant was the president of EMFSO, the regional model aircraft organization. That organization had a website that needed updating. The webmaster of the site was BF, one of the members of EMFSO.

13Approximately one month before the July 26, 2012 email, BF did some work on the website. The applicant noted that some of the content had been removed. The applicant was concerned that the website had been compromised. He believed that access to the site had been blocked and that there were inappropriate changes to a forum related to the organization. The applicant asked BF to restore things to how they had been. BF replied that he would be happy to turn over management of the website to the applicant.

14Following a number of emails between the applicant, BF, and other members of EMFSO, the applicant sent BF an email dated July 9, 2012. It requested that the website be returned to how it was before the changes and that the website be adapted in regards to how data was stored and hosted. He also asked that he be given administrative access to the website. The email concluded:

This request is time sensitive. Please comply before 2:00 pm July 10, 2012. York Regional Police requested a meeting with me at 5:00 pm July 10, 2012.

15BF agreed to make some changes. As a result of these changes, members of TEMAC had to re-register with EMFSO. JH, one of the TEMAC Board members, sent an email to the members to advise them of this. The applicant sent JH an email on July 10, 2012, that stated:

The matter regarding EMFSO credentials and EMFSO Forum is currently unresolved. Efforts to reach a fair and reasonable way forward continue. No further comment or distribution of information related to this matter is required.

16This email generated the following response:

Get stuffed! Don’t you dare dictate to me how I conduct myself.

17The applicant replied and asked JH to be patient. He informed him that the issue had been “discussed with York Region Police and remains open.” He reiterated his request that JH refrain from making further comments related to the matter.

18JH was subsequently involved in a campaign to have the applicant removed as a director of the national organization. This campaign features in the applicant’s allegations of reprisal, discussed later in this Decision.

19BF eventually agreed to transfer ownership of the domain to the applicant. He asked that, in exchange, the applicant agree that he would take no further legal action against BF or members of TEMAC. The applicant replied that he would give that assurance and that when the transfer was complete, he would contact the York Regional Police and tell them that “no further assistance or advice is needed”.

20The applicant testified that he had been very concerned about the website issue. He testified that he consulted with others and felt that the process that had been followed was illegal. He went to the police and reported the situation. He testified that the police told him that the events related to the website were very serious. They wanted to proceed immediately with a criminal investigation but the applicant asked that they hold off to see if the matter could be resolved.

21The respondents assert that this conflict took a significant toll on those involved.

22At the time of these conflicts, GH was the president of the Board of TEMAC. He is the brother of MH, the person who was Assistant CFI and who the Board asked to become CFI to replace the applicant.

23GH was also involved in EMFSO. He resigned as president of TEMAC about a week before the July 26 email. The personal respondent testified that before resigning, GH called him in tears because he was so upset about the applicant’s allegations about the website. The personal respondent testified that GH told him that he was afraid that the police were going to come to arrest him because of the website issue. The personal respondent testified that the applicant had told various people that the issues around the website were so serious that they could be “career ending”.

24GH had been president for about a year. He took over from the personal respondent. The personal respondent testified that GH spent a lot of time trying to deal with concerns raised by the applicant. In a witness statement, GH indicated that the applicant would sometimes call him at work and want to engage in lengthy discussions. This was a problem because he was not supposed to work on personal projects while at work. The personal respondent testified that when he was president, he spent a lot of time dealing with issues raised by the applicant. He said that this was a reason that he stepped down as president.

25GH did not testify at the hearing and the information about him provided by the personal respondent is considered to be “hearsay” evidence, meaning that it is evidence that has not come from the person directly involved. Hearsay evidence is generally given little or no weight. However, the personal respondent’s evidence about the existence of conflict in the organization does carry weight, particularly as the applicant does not dispute that there was conflict.

The July 26, 2012 email and the aftermath

26The personal respondent and Mr. Hinchcliffe testified that the decision to ask the applicant to resign as CFI and to promote MH was made because of the significant inter-personal issues involving the applicant.

27The personal respondent testified that in addition, he felt that the promotion of MH would be strategically helpful as it would encourage MH to remain involved and in a leadership position following the resignation of his brother as president.

28The respondents further note that the goal of encouraging younger members to take on leadership positions had been shared by the applicant. MH was the assistant CFI and had been recruited to that position by the applicant. The applicant said that, at least in part, this was so there would be an experienced person if the applicant were to no longer be the CFI. However, in the applicant’s opinion, MH was not ready to assume the duties of CFI in July 2012 because he did not have enough flight time.

29Mr. Hinchcliffe testified that the applicant told him at the start of the 2012 season that he would be stepping down as CFI at the end of the season in October 2012.

30The applicant agrees that at the start of the 2012 season he had a conversation with Mr. Hinchliffe in which he indicated that he might not continue as CFI beyond the 2012 season, which ended in October. However, the applicant notes that he did not say that he would be definitely stepping down.

31A few hours after receiving the July 26 email telling him he had been replaced as CFI, the applicant sent an email in reply. In the email, he indicated that he had asked MH to become Assistant CFI. He said that he had told GH “that due to time commitments this may be my last year serving the club as CFI.” He added: “Essentially a succession plan was established.” The applicant's email went on to say that the July 26 email “indicates age discrimination”.

32On July 27, the next day, the applicant sent another email which reads as follows:

Further to my email below, I request an opportunity to discuss a concern related to the proposed change of Chief Flight Instructor at [TEMAC]. The meeting shall be on or before July 30, 2012.

Unfortunately, age discrimination appears to be evident due to the decision making process of the TEMAC Board.

As a result, I contacted the Ontario Human Rights Commission and sought assistance. A file was opened and a formal complaint will be submitted if efforts to resolve this matter are unsuccessful.

33The personal respondent replied to this email. He was at the time on a cruise ship. The email said in part:

Although you must be convinced of it, I want to assure you, that I am certain the people on the TEMAC board have absolutely no intent of discriminating against you based on age. (I don’t even know how old you are.)

I am considering advising the TEMAC board to swiftly resolve this matter to your 100% satisfaction in a timely [manner]. I would need you to share some information with me so that I may take that step.

The information I specifically need is the response and advice given you by the HRC, and the specific actions you would need to close this matter.

34The applicant’s demand that a meeting occur before July 30, 2012 was not met, mostly, it appears, because the personal respondent and other Board members were on vacation.

35On or about July 31, 2012, the TEMAC Board offered to let the applicant remain in the CFI position provided that he would not pursue matters with the Human Rights Commission. The applicant did not accept this offer. However, on August 4, 2012, the applicant sent an email to the Board in which he said he was resigning as CFI “due to a recent lack of safety.”

36TEMAC is part of a national organization that hosts an internet forum for its members. There were several posts to the forum about the applicant. On August 12, 2012, the applicant posted the following to the forum:

I was not involved in the process of change at the club and found the stated goal of the TEMAC Board most troubling. My competency is not in question, but my age is used as the reason for change.

At this point, everyone reading this post can decide if this matter is a form of age discrimination.

37The personal respondent responded to this post. He reminded the applicant that he had assured the applicant that his age was not a factor in the decision to ask him to step down as CFI. He continued:

Despite my personal assurances, you ran to file a complaint at the Ontario Human Rights Commission.

Well, that’s what everyone in this Zone needs to know; when confronted by a dispute where you feel threatened (even when unwarranted), Clair Murray’s style is to run to a lawyer, the police, or a government human rights commission.

38A member named Steve posted a comment supporting the applicant. The personal respondent replied. He acknowledged that the applicant had contributed a lot to the hobby. He mentioned twice that the applicant had threatened to file a human rights complaint. He concluded:

Is this the type of Zone Director you would want hovering over your club?

39Steve posted another message supporting the applicant. The personal respondent responded:

We are subject to intense scrutiny, harassment, and many opportunities for conflict. The situation has become intolerable

40The personal respondent mentioned again the applicant's “nonsense with threatening to the police and to the Ontario Human Rights Commission when he didn’t get his way.”

41In a post dated September 6, 2012, the personal respondent commented:

I rightfully consider his suggestion that he may approach the Ontario Human Rights Commission against me as a threat. My intention is to make other members within the Zone aware of the actions of our Zone Director.

There is an initiative (not by me) to have Clair removed from his position of Zone director. I feel the better people are informed, the wiser their reaction.

42Things came to a head on October 6, 2012, at the Annual General Meeting of EMFSO, the provincial organization. In advance of the meeting, a member of the TEMAC Executive sent an email encouraging members who would be unable to attend the meeting to give a proxy to another Board member. That Board member was JH, the person who was older than the applicant (and is now deceased) and whom the applicant and the personal respondent agree was one of the main proponents of wanting the applicant to step aside. JH presented a motion at the meeting to remove the applicant as Zone Director. The motion passed, in part because of the proxies held by JH. The personal respondent was not at this meeting.

43The Minutes of the meeting concerning the motion to remove the applicant indicate that the applicant took the position that the motion was not in order because he had not received notice that there was cause to remove him. One of the members indicated that he had sent the applicant a confidential email “listing 8 reasons of cause and that in response Mr. Murray had threatened him with legal action.”

44The applicant confirmed that he had received the email referred to. He testified that none of the 8 reasons were related to his age or to the fact that he had consulted the Ontario Human Rights Commission. The applicant testified that he did not threaten legal action against the member, although he did retain a lawyer to write a letter to the member.

45The applicant’s spouse was at the hearing as a witness. She testified that she attended the meeting where the vote was taken. The applicant was asked to leave the meeting during the discussion. In her view, the discussion about the applicant at the meeting was not fair.

46Following this meeting, there is one further post by the personal respondent that the applicant identifies as another act of reprisal.

47In a post dated January 30, 2013, the personal respondent stated:

It would seem obvious to me that anyone in MAAC who would defer to law suits, human rights commissions and other outside agencies, holds their own ego as a priority over the hobby.

It would seem logical to me, that anyone who persists in such repeated actions against MAAC and fellow modellers should be banned from MAAC, let alone from a position of leadership.

48The applicant was not banned from MAAC.

49On January 28, 2014, the applicant filed this Application, alleging discrimination because of age and reprisal.

50Under section 34 of the Code, a person must file an Application within one year of the incident of discrimination, or if there is a series of events, within one year of the last event in the series. In this case, the last event was the January 30, 2013 post by the personal respondent, which was within one year of the filing of the Application on January 28, 2014.

Evidence supporting age discrimination

51The applicant’s evidence about his belief that he had been discriminated against because of age varied somewhat. He testified that when he received the July 26 email, his first thought was that he was the victim of age discrimination. He testified that he now understands that the suggestion that a younger person should replace him was just a pretext to get him out of the position. However, he submitted that he was nevertheless discriminated against on the basis of his age.

52The personal respondent testified that on two occasions during conversations with the applicant about the email, the applicant said that he knew that the email was not motivated by age discrimination, but that it could be interpreted in that way. In his evidence, the applicant did not dispute the personal respondent’s evidence on this point, but reiterated that on its face the July 26 email indicated that age was the reason for replacing him.

53I asked the applicant if anything happened apart from the email that supported the allegation of age discrimination. He said that nothing specifically was said to him but that he heard from a member that comments were made. This member, Bob Beck, was a witness at the hearing. Mr. Beck testified that in late August 2012, he had a conversation with the personal respondent and JH, in which he asked why the applicant had been told to step down as CFI. Mr. Beck testified that the personal respondent and JH both told him that it was because the applicant was old and not able to do his job.

54The personal respondent denied that such a conversation took place. He testified that he had never had a conversation with Mr. Beck that went beyond basics like hello and how are you.

55As noted, JH has since deceased. At the time, JH was in his 70’s and about a decade older than the applicant. He was in a leadership position in the club and was one of main proponents of having the applicant removed as Zone Director of the provincial organization at the October 2012 meeting.

56I find that it is unlikely that Mr. Beck was told that the applicant was too old. If the conversation took place, it is possible that Mr. Beck was told that the applicant was not doing his job properly. The personal respondent is not likely to have said that the applicant’s age was a factor, because by the time this alleged conversation took place, which was at the end of August 2012, the applicant had made it clear that he was pursuing an allegation of age discrimination. It seems unlikely that the personal respondent would say that age was the reason for asking the applicant to step down in a conversation with someone he rarely spoke to when the personal respondent was at the same time publicly strenuously denying that the applicant’s age had anything to do with what had happened. JH is now deceased, so his evidence about what he said is not available. Since this person was active in the process to have the applicant removed from other positions because of factors unrelated to age, it seems unlikely that he would say in a conversation with Mr. Beck that the real reason was the applicant’s age.

57I find that it is more probable than not that Mr. Beck was not told by JH or the personal respondent that the applicant’s age was a factor in the decision to ask him to step aside.

58The applicant confirmed that apart from the information he heard from Mr. Beck, nothing happened to suggest that he had been discriminated against because of age, except for the July 26 email.

Conclusions about the allegation of age discrimination

59Section 1 of the Code provides:

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.

60The Supreme Court of Canada’s decision in Andrews v. Law Society of British Columbia, 1989 CanLII 2 (SCC), [1989] 1 S.C.R. 143, defined discrimination as:

(…) a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society.

61The test for discrimination requires an applicant to establish that he or she is a member of a protected group, has experienced adverse treatment, and that the ground of discrimination was a factor in the adverse treatment.

62The applicant bears the burden of establishing discrimination. The first step is that the applicant must establish a “prima facie” case of discrimination. This means that the applicant must be able to show that if the allegations are believed, the allegations are sufficient to justify a finding in the applicant's favour in the absence of an answer from the respondent. The burden then shifts to the respondent to provide a credible and rational explanation demonstrating, on a balance of probabilities, that its actions were not discriminatory.

63The basis for the allegation of age discrimination is the language of the July 26, 2012 email. I agree with the applicant that on its face, the email suggests that the respondents wanted to replace him with someone younger. On its face, this was the only reason given in the email for wanting to replace him. There is thus prima facie evidence of discrimination because of age.

64Once the applicant has established prima facie evidence of discrimination, the enquiry turns to the respondent to provide, on a balance of probabilities, a credible non-discriminatory reason for its actions. If the respondent is not able to establish a non-discriminatory explanation for its actions, a finding of discrimination may follow. A finding of discrimination can be made even if the whole reason for the adverse treatment was not related to the prohibited ground. Discrimination can be found even if the adverse treatment was only partly related to the protected ground. The burden rests with the applicant to show that this was the case.

65The respondents assert that the applicant’s age had nothing to do with the decision to replace him as CFI and that the sole reason was that the applicant was causing discord in the organization. The respondents agree that the letter that was sent to the applicant said that the Board wanted to replace him with a younger person, but they submit that this was an attempt, albeit perhaps misguided, to be nice to the applicant by providing a reason that avoided the personal reasons for the decision.

66The personal respondent testified that the reason why he wanted MH to take over as CFI was that he wanted to encourage MH to stay in a leadership position because the personal respondent was worried that MH might otherwise leave. The personal respondent testified that he thought it was quite possible that MH would leave following the resignation of MH’s brother. According to the personal respondent, as president, MH’s brother had experienced considerable stress as a result of his dealings with the applicant. I find the personal respondent’s explanation for his support for supporting the promotion of MH to be a more probable explanation for why MH was promoted than the fact that MH was a younger person.

67From the available evidence, I cannot see why the respondents would suddenly become concerned about the applicant’s age mid-way through the season. The applicant had indicated either that he would be stepping down (according to Mr. Hinchcliffe) or that he might be stepping down (according to the applicant) at the end of the season. If the respondents really were concerned with the applicant’s age, the simple solution would be to wait until the end of the season. The fact that the applicant was replaced mid-way through the season, and effective within days of the July 26 email, suggests that there was some reason for the decision to replace him other than age.

68I accept that the respondents used the language of the email that indicated a desire to replace the applicant with a younger person as a pretext to avoid having to deal with the real reasons which were that the applicant was causing conflict.

69Of course, the intention of the respondents is not determinative of the question of whether the applicant experienced discrimination because of age. A person can experience discrimination even if the person responsible for the discrimination does not intend to discriminate. However, for a finding of discrimination, there must be evidence that the applicant did experience discrimination. To establish discrimination in this case, the applicant must be able to show that age was a factor in the adverse treatment (being asked to step down).

70The applicant was well aware of the conflict in which he was engaged, and that a number of people, including members of the Board, were quite unhappy about the discord.

71The personal respondent testified that the applicant told him that he knew that the letter was not motivated by age discrimination. The applicant did not dispute this evidence.

72In consideration of the available evidence, I find that it is more probable than not that the applicant knew that his age was not a factor in why he was asked to step down as CFI. I accept that the email that asked him to step down was entirely because of the conflict that the applicant had created within the organization and was not because of any concern about the applicant’s age. The fact that it was proposed that MH be promoted to the position of CFI from Assistant CFI was due to a wish to keep MH in a leadership position and was not due to the fact that he is younger than the applicant.

73For these reasons, I find that the applicant has not shown that he experienced discrimination on the basis of age.

Allegations of reprisal

74The allegations of reprisal are based on the comments the personal respondent made on internet forums. The applicant confirmed that the allegations of reprisal relate only to the personal respondent and not to the organizational respondent.

75Section 8 of the Code provides as follows:

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.

76Noble v. York University, 2010 HRTO 878, is a decision of the Tribunal that set out principles to be considered when adjudicating an allegation of reprisal.

[I]n a complaint or application alleging reprisal, the following elements must be established:

a. An action taken against, or threat made to, the complainant;

b. The alleged action or threat is related to the complainant 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.

In addition, the following principles are relevant:

a. There is no strict requirement that the complainant has filed a complaint or application under the Code, and

b. There is no requirement that the Tribunal find the respondent did in fact violate the complainant’s substantive rights to be free from discrimination.

[A] claim of reprisal must be in respect of an action or threat. Establishing only that a respondent was upset or angry that a complainant filed a complaint, or claimed a Code right, is not sufficient. Neither is it a reprisal to show simply that a respondent considered taking an action against a complainant. Evidence of anger or upset, or of an animus, may be relevant in establishing an inference that an action was taken with intent to reprise. However, in order for there to be a reprisal, there must be an actual action taken against the complainant, or threat made to the complainant.

An analysis of whether a reprisal has occurred begins with an alleged action or threat, then an examination of whether the action or threat was related to the claiming of a right under the Code, and was intended to retaliate, or seek to impair the claiming of the right. Animosity or evidence that a respondent considered taking action against a complainant may assist in establishing intent, but it is not, on its own, a reprisal.

Second, not every action or threatened action by an employer will constitute a reprisal under section 8. Disciplinary action, or threatened discipline, which is not related to the exercise of a right under the Code, will not constitute a reprisal.

Finally, and following from the previous principle, it is not sufficient to show that a respondent disagreed with the complainant’s assertion that a Code right was violated. Not every action of a respondent which is based on a contrary position to that taken by the complainant is a reprisal.

77The analysis of whether the posts made by the personal respondent were made in reprisal contrary to section 8 is somewhat complex. On the one hand, they were clearly intended to damage the applicant's reputation in the hobby community. The later posts were intended to suggest that the applicant should be removed from his leadership position and then be removed as a member. Although they were posted by the personal respondent in his personal capacity, it is clear that he is a person with influence in the community. The posts linked these possible actions regarding the applicant, at least in part, to the fact that he had suggested that he had been a victim of age discrimination.

78On the other hand, it is clear that, at least in part, the posts were made in reaction to the fact that the applicant continued to suggest that he had been the victim of discrimination when he knew that this was not true and when he had acknowledged this to the personal respondent. As well, the applicant's assertions of discrimination and the personal respondent’s posts in reaction occurred in the context of significant conflict within the organization, that then involved the regional and the national organizations.

79The posts were not limited to a reaction to the fact that the applicant said that he had consulted with the Human Rights Commission and that he invited people to conclude that he had been the victim of discrimination. The posts indicate that the applicant's assertion or suggestion of age discrimination was one part of a generalized conflict that included resort to the police and lawyers as well as what the respondent believed was a general atmosphere of harassment and conflict involving the applicant. However, the reprisal allegation arises because the personal respondent in particular identified the fact that the applicant had raised the allegation of age discrimination.

80As noted in Noble, above, a person can be reprised against contrary to section 8 of the Code even if it is eventually determined that the respondent did not in fact violate the complainant’s substantive rights to be free from discrimination.

81However, the Tribunal has also said that an applicant is not protected against reprisal under section 8 if the allegation of discrimination is made maliciously. (See Staniforth v. C.J. Liquid Waste Haulage, 2009 HRTO 717 at paragraph 95; Bertrand v. Primary Response, 2010 HRTO 186 at paragraph 59).

82A person cannot, for example, invent a false allegation of discrimination and then claim reprisal when the respondent reacts to the false allegation. A person can, however, receive protection under section 8 if the allegation of discrimination is sincerely but mistakenly believed.

83This approach is consistent with section 34 of the Code, which provides that an Application may be made to the Tribunal “if a person believes that any of his or her rights under Part 1 [of the Code] have been infringed.”

84In this case, the applicant did not maliciously make up an allegation of age discrimination. The respondents sent the applicant an email that on its face suggested that the applicant’s age could be a factor in why he was being asked to step down. However, the applicant concedes that he then came to understand that the mention of age was a pretext and not the reason he was asked to step down.

85The first alleged reprisal in this case was the personal respondent’s post in reaction to the applicant’s post of August 12, 2012, in which the applicant suggested that he may have been the victim of age discrimination.

86In my view, this suggestion was not made in good faith. By that time, in my view, the available evidence shows that it is more probable than not that the applicant knew that the request that he step down was not related to his age. Moreover, the evidence also shows that he had confirmed that he knew this in conversations with the personal respondent.

87In these circumstances, I do not think that the applicant can then claim the protection of section 8 when the respondent reacted to the situation as he understood it.

88While there may be cases where an insincere allegation of discrimination under the Code can lead to a reprisal contrary to section 8 of the Code, in the circumstances of this case, I find that the applicant has not established that he is entitled to the protection of section 8 of the Code in regard to the posts the personal respondent made concerning the applicant.

Decision

89The allegation of age discrimination is dismissed.

90The applicant is not entitled to the protection of section 8 of the Code in regard to the posts of the personal respondent concerning the applicant.