Simpson v. Western Pre-Law Society, 2017 HRTO 1536

Human Rights Tribunal of Ontario

Between:

Drew Simpson Applicant

-and-

Western Pre-Law Society Respondent

Decision

Adjudicator: Esi Codjoe Date: November 22, 2017 Citation: 2017 HRTO 1536 Indexed as: Simpson v. Western Pre-Law Society

Appearances

Drew Simpson, Applicant Self-represented

Western Pre-Law Society, Respondent Sarah Low, Counsel

Introduction

1The applicant filed an Application under the Human Rights Code, R.S.O. 1990 c. H. 19, as amended (the "Code"), with respect to employment and vocational association because of age and sexual solicitation/advance, and reprisal.

2By Case Assessment Direction, the Tribunal directed that a summary hearing be held to address whether the Application should be dismissed, in whole or part, on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

3As outlined below, I find that the Application must be dismissed on the basis that it has no reasonable prospect of success under the Code.

Summary Hearing Process

4The summary hearing process is described in Rule 19A of the Tribunal's Rules of Procedure as well as the Tribunal's Practice Direction on Summary Hearing Requests. The purpose of a summary hearing is to consider, early in the proceeding, whether an application should be dismissed in whole or in part because there is no reasonable prospect that the application will succeed.

5The Tribunal cannot address allegations of unfairness that are unrelated to the Code. The Tribunal's jurisdiction is limited to claims of discrimination that are linked to the protections set out in the Code.

6The test that is applied at the summary hearing stage is whether an application has no reasonable prospect of success. At this stage, the Tribunal is not determining whether the applicant is telling the truth or assessing the impact of the treatment he or she experienced. The test of no reasonable prospect of success is determined by assuming the applicant's version of events is true unless there is some clear evidence to the contrary or the evidence is not disputed by the applicant.

Facts and submissions

7The applicant's Application and oral submissions were somewhat difficult to follow, but I understand his allegations to be as outlined in the subsequent paragraphs.

8The applicant is 28-year-old man. In 2016, he was a student at Western University. He was a member of a university club called the Western Pre-Law Society ("the club"), an academic club for students who are interested in pursuing legal careers. There is no dispute that the applicant was a member of the group, and that he was not denied membership in it.

9The applicant asserts that he was subject to discrimination on the basis of his age and grade; he uses the term grade to mean the level of university studies that he has completed. To that end, he asserts that the respondent did not hire him for a position as Vice President of External Affairs, given his higher level at the university, and because they thought he was too old for the role. Further, he asserts that he was threatened and coerced with police and legal action for making a complaint regarding election impropriety, and that this is a reprisal for raising those issues. In addition, he asserts that there was corruption in the club's voting process.

10In his oral submissions, the applicant further asserted that he was subject to gender discrimination because he is male. To that end, he asserted that he intends to lead evidence to establish the following:

• Unspecified females circumvented males from being able to move up through the leadership ranks in the club;
• Females are trying to circumvent males getting into law school;
• Females are trying to solidify their position so they can advance themselves; and,
• His right to be a male is being taken away from him.

11The applicant does not assert that he was subject to sexual harassment, advance or solicitation. Rather, he complains that he made a sexual advance towards the club's president, it was rebuffed, and consequently he has been subject to discrimination because he made a sexual advance. To that end, the applicant states that the club used the sexual harassment policy in order to "win against" anyone who wanted a role in it or anything else in the university. The applicant asserts that he should be able to make a sexual advance without reprisals. He takes issue with what he describes as government policy that limits his ability to make a sexual advance.

12The respondent is a club that is subject to a constitution that governs its processes, including hiring and elections. It is a member of the Western University Student Council. The respondent submits that the Application relates to two incidents; first the applicant was not the successful candidate for a paid position with the club, and second, he takes umbrage with the fact that the club president rebuffed his sexual advance.

13The respondent notes that the club constitution provides that longevity can be a factor in determining suitability for employment with the club. Longevity means that the club strives to employ persons in its two paid positions who can remain in the role over time. To that end, its desired candidates would not be in their graduating year at the time of their application. Other factors that are considered by the club in its hiring process are previous experience in the club and a strong academic background. The respondent submits that the applicant applied for the position in his graduating year, had very little experience in the club, and did not have a strong academic background.

14Further, the respondent submits that the Application was filed as part of an ongoing pattern of anger and harassment towards the club president. It submits that the evidence will show that the applicant romantically pursued the president. When she refused his advances he was very unhappy and angry about that fact. It is acknowledged by the parties that the applicant made a sexual advance towards the club's president. The president rebuffed his advances, and given the applicant's harassing behaviour, another student ultimately filed a police complaint on June 26, 2016. The applicant filed this Application on July 8, 2016.

15The respondent's legal counsel also advised the Tribunal that the applicant asked her out on a date by email. When she declined his request, he became very angry, and threatened to report her to the police, and advised her that he would not participate in the hearing. The applicant did not deny the allegations. I make no finding regarding these statements but to note that they were made.

ANALYSIS

No Reasonable Prospect of Success

16Even if I accept the facts put forward by the applicant as true and provable, I must find that the Application has no reasonable prospect of success under the Code.

17The Tribunal has explained its approach when determining whether an application has a reasonable prospect of success after a summary hearing. In Dabic v. Windsor Police Service, 2010 HRTO 1994 at paragraph 8, the Tribunal reasons as follows:

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.

18The applicant he has not alleged any facts on which the Tribunal could find he was subject to discrimination contrary to the Code ground. His submissions were focused on facts that were not outlined in his Application, including allegations about specific individuals who are not named as respondents and women in general. Issues pertaining to those parties are not the subject matter of this Application and are not relevant. Rather, he says that he was threatened and coerced with police and legal action for making a complaint regarding election impropriety.

Age, Employment and Vocational Association

19The applicant appears to equate his stage of university studies with age. He argues that the club's failure to hire him was because he was in third year and therefore older than persons who are first and second year. Even if I assume this fact to be true, the mere fact that an applicant is 28 years old and did not get a job is not age discrimination.

20While it is likely that, on average, a student in first year is two years younger than someone in third year, the criteria of longevity on its face is not an arbitrary distinction based on a person's age. A first year student who started law school at age 50 would be preferred to a third year law student who started his or her studies at the age of 20.

21The applicant was not denied membership in the club. In any event, the applicant made no attempt to explain how the club meets the definition of a vocational association.

Sexual Solicitation/Advance and Gender in Employment

22The applicant wrongly believes that to prevent him from making a sexual advance is discrimination under the Code. The sexual harassment provisions under the Code are outlined in sections 7(2) and (3), and outline that persons should be free from harassment in a workplace because of sex, and sexual solicitations or advances.

23The purpose of sections 7(2) and (3) is to prevent persons from being subject to sexual harassment in employment, not to give licence to an individual to engage in sexual harassment. The applicant freely admits that he made sexual advances towards a respondent representative, and he acknowledges that his feelings were not reciprocated. However, this is not an allegation of discrimination under the Code.

24The applicant's verbal allegations pertaining to discrimination on the basis of gender are vague, lack coherence and do not appear to relate to the parties. His submissions are mostly about unspecified women. He alleges that these women are generally trying to prevent men in general from advancing in various spheres. These allegations are unrelated to the respondent and, even if proven, would not constitute discrimination by the parties named in this Application.

25The fact that the applicant is a 28-year-old male, who made an unwanted sexual advance, is neither gender discrimination, nor sexual harassment.

Reprisal

26Section 8 of the Code outlines the definition of a reprisal, it reads as follows:

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.

27In order for the Tribunal to make a finding that an applicant was subject to a reprisal under the Code, the applicant must have attempted to claim or enforce rights under the Code, or tried to commence or participate in a proceeding under the Code. The applicant does not assert that he made any Code based allegations, nor that he commenced any such proceedings prior to his involvement with the police. These allegations, even if true, have no reasonable prospect of success as they do not amount to a violation of the Code.

Order

28For the above reasons, the Application is dismissed.