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Does the Ontario Human Rights Code protect employees charged with a criminal offence?

Does the Ontario Human Rights Code ("OHRC") protect employees charged with a criminal offence? The answer is "no" based on a series of decisions by the Ontario Human Rights Tribunal ("OHRT") over the last year.

Ontario Human Rights Code

The OHRC prohibits discrimination in employment on the basis of an employee's "record of offences". The OHRC states that "record of offences" means a conviction for:

(a) an offence in respect of which a pardon has been granted under the Criminal Records Act (Canada) and has not been revoked, or

(b) an offence in respect of any provincial enactment.

Decision in de Pelham v. Mytrak Health Systems Inc.

In a February 2009 decision, de Pelham v. Mytrak Health Systems Inc. 2009 HRTO 172 (CanLII), the chair of the OHRT ruled that the "record of offences" provisions do not encompass criminal charges. Specifically, he stated:

Mr. de Pelham argues that notwithstanding the definition provided in the Code, I should give "record of offences" a broader meaning, to include situations in which an individual has been charged with a criminal offence. He puts forward several reasons for this position. He argues that it does not make sense, and would be unfair to allow employers to discriminate against persons merely charged with an offence, since it is a fundamental principle of law that an individual is "innocent until proven guilty." He says that the Legislature could not have intended that a person convicted of a criminal offence would have greater protection than a person only charged. In this regard he makes reference to the legislative debates preceding the 1981 amendments to the Code which added record of offences as a prohibited ground of discrimination.

Mr. de Pelham also argues that the term "record of offences" can and should be read to include any official record of interaction with the law, including a record of criminal accusations.

Finally, he relies on a series of British of Columbia Human Rights Tribunal cases which appear to extend the definition of record of offences to include persons charged, but not convicted of an offence. He notes that the British Columbia Human Rights Code...while not identical to the Ontario Code, is similar in that it also refers to "a person convicted of a criminal offence". Notwithstanding, the British Columbia Tribunal has found that the protection is available to persons merely charged with an offence...

Although I appreciate the applicant's arguments in this case, his position cannot succeed. The language of the statute is clear and unambiguous and provides that "record of offences" covers only persons convicted of an offence. It is true that the Code is an important public policy statute and must be given a large, liberal and purposive interpretation, but this does not mean the Tribunal can depart from the express provisions of the legislation. As the Supreme Court said in University of British Columbia v. Berg, [1993] 2 S.C.R. 353 (at 371):

This interpretive approach does not give a board or court licence to ignore the words of the Act in order to prevent discrimination wherever it is found. While this may be a laudable goal, the legislature has stated, through the limiting words in s. 3, that some relationships will not be subject to scrutiny under human rights legislation. It is the duty of boards and courts to give s. 3 a liberal and purposive construction, without reading the limiting words out of the Act or otherwise circumscribing the intention of the legislature.

Neither can I accept Mr. de Pelham's argument that the Legislature could not have intended that the Code protect only individuals convicted of an offence, and not cover those merely charged. First, it is a basic principle of statutory interpretation that words of a statute should be read in their ordinary sense, consistent with the scheme and object of the Act... Second, the Code does not cover every form of discrimination in every circumstance. The Legislature has made choices about what forms of discrimination should be proscribed and in which social areas. Moreover, a review of human rights legislation across the country reveals a wide variation in the extent to which interactions with the criminal justice system are considered a prohibited ground of discrimination. For example Nova Scotia, New Brunswick, Newfoundland, Manitoba, Saskatchewan and Alberta provide no protection whatsoever for this form of discrimination. Quebec provides that an employer may not discriminate on the grounds that a person has been convicted of an offence if the offence was unrelated to the employment or intended employment, or the person has obtained a pardon. The Yukon Human Rights Act... does prohibit discrimination on the basis that an individual has a criminal record or has been charged with an offence. Thus, it is clear that different Legislatures across Canada have made different legislative choices. The Tribunal must respect those legislative choices.

Finally, I recognize that the British Columbia Human Rights Tribunal does take a different approach on similar statutory language. However, with respect, I cannot reach the same conclusion (paras. 6-11).

Follow up on de Pelham

In November 2009 I contacted a lawyer involved in de Pelham and she advised that, to her knowledge, an application for judicial review had not been filed.

Further, the rationale in de Pelham has subsequently been followed/applied by the OHRT in at least three cases:

  1. Lawrence v. Toronto Police Services Board 2009 HRTO 711 (CanLII)
  2. Gravino v. P.R. Maintenance Inc. 2009 HRTO 516; and most recently
  3. Aitchison v. Mid Canada Fiberglass, 2010 HRTO 262 (CanLII)