de Pelham v. Mytrak Health Systems, 2008 HRTO 147

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mark David de Pelham Applicant

-and-

Mytrak Health Systems Inc. and Reed Hanoun Respondents

AND BETWEEN:

Mark David de Pelham Applicant

-and-

Ricoh Canada Inc., Glen Carr, Mary-Ellen Lewis, Ashton Nazarene, and Domenic Giorgio Respondents

INTERIM DECISION

Adjudicator: Michael Gottheil Date: October 10, 2008 Citation: 2008 HRTO 147 Indexed as: de Pelham v. Mytrak Health Systems

Human Rights Tribunal of Ontario 655 Bay Street, 14^th Floor Toronto ON M7A 2C7 Phone (416) 326-1312 / 1-866-598-0322 Fax (416) 326-2199 / 1-866-355-6099 TTY (416) 314-2379 / 1-800-424-1168 E-mail hrto.registrar@ontario.ca Website www.hrto.ca

INTRODUCTION

1This interim decision provides case management direction with respect to two separate applications filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”) as well as several Requests for Interim Remedy (Rule 23) and Requests for Order During Proceedings (Rule 19). For the reasons that follow, the Tribunal will deal with these Applications together with respect to a jurisdictional issue identified by the respondent Mytrak Health Systems Inc.

THE APPLICATIONS

2The applicant, Mark David de Pelham, filed an application against Mytrak Health Systems Inc. (“Mytrak”) and Reed Hanoun claiming discrimination in employment on the ground of “record of offences.” He also filed an application against Ricoh Canada Inc. (“Ricoh”), Glen Carr, Mary-Ellen Lewis, Ashton Nazarene and Domenic Giorgio claiming discrimination in employment on the ground of “record of offences” and reprisal. In the Applications, Mr. de Pelham alleges that he was terminated from employment with Mytrak and Ricoh (respectively) because he had criminal charges pending before the Courts.

3The applicant also filed a Request for Interim Remedy and a Request for Order During Proceedings against Mytrak, and a Request for Interim Remedy against Ricoh. The essence of all three requests is that he be paid the wages he would have earned had his employment not been terminated, pending final determination of his Applications.

4Mytrak has filed its Response to the Application and to the two Requests for Interim Remedy. Mytrak claims that, while the applicant applied for and was considered for employment, he was not in fact hired. There are a number of factual disputes between the parties. Mytrak also denies the applicant is entitled to an interim remedy.

5Ricoh has filed a response to the Request for Interim Remedy. Its Response to the main Application is not yet due. Ricoh denies that the applicant is entitled to an interim remedy.

6Mytrak has filed a Request for Order During Proceedings in which it asks the Tribunal to dismiss the Application for lack of jurisdiction because, among other things, the ground of “record of offences” does not apply in the circumstances. It points out that “record of offences” is defined in section 10 of the Code to mean a “…conviction for an offence in respect of which a pardon has been granted under the Criminal Records Act (Canada) and has not been revoked…” or a conviction for “an offence in respect of any provincial enactment.” It notes that Mr. de Pelham has been charged with two offences under the Criminal Code, R.S., 1985 c. C-46, but has not been convicted and has not been pardoned.

7The applicant filed a response to Mytrak’s Request. He argues that the Code should be interpreted broadly to include a situation where an individual has been charged with a criminal offence.

DECISION

The Applications and the Jurisdictional Issue

8Mytrak’s Request for Order During Proceedings raises a serious jurisdictional issue. The Applications both allege “record of offences” as a ground of discrimination. The Code provides a definition of “record of offences” and on a plain reading of that definition, “record of offences” may not apply in the circumstances of these Applications. If this is correct, the Application against Mytrak and Hanoun must be dismissed, and the Application against Ricoh and the personal respondents in that Application would be substantially narrowed. In my view it is appropriate to deal with this jurisdictional issue as a preliminary matter.

9While the facts and circumstances relating to Mr. de Pelham’s Application, consideration for, and alleged termination from employment with Mytrak, and his Application, consideration for, and termination of employment with Ricoh are different, a central and fundamental issue in both Applications is identical: does the ground of “record of offences” apply in these circumstances. As a result, I consider it appropriate to consider the Applications together when determining this discrete legal issue.

10Both Mytrak and the applicant have indicated that they believe this issue can be dealt with through written submissions. Ricoh will be entitled to address this issue.

11I should emphasize that nothing in this decision should be taken to mean that I have made any determination on whether the ground of “record of offences” applies where an individual has simply been charged with a criminal offence. Mytrak submits that it does not and Mr. de Pelham submits that it does. There has been some jurisprudence which has considered this question, albeit in the context of different statutory language. In this regard, I would draw the parties’ attention to a number of decisions of the British Columbia Human Rights Tribunal, in particular the decisions in Clement v. Jackson (2006), 2006 BCHRT 411, 57 C.H.R.R. D/507 and Dore v. Crown Tire Service Ltd. (1988), 1988 CanLII 8912 (BC HRT), 10 C.H.R.R. D/5433.

12Finally, given the nature of this legal issue and the potential broader public policy implications, I believe that it is appropriate to provide notice of these proceedings to the Ontario Human Rights Commission (“the Commission”) and to provide it with the opportunity to indicate whether it seeks to participate in the hearing of this discrete legal issue.

The Requests for Interim Remedy

13Mr. de Pelham makes a number of arguments in support of his requests for interim remedy from Mytrak and Ricoh. Mytrak and Ricoh both oppose the requests and provide various arguments in support of their respective positions. I do not consider it necessary, at this point, to address all of the submissions of the parties on this issue.

14Rule 23.2 of the Tribunal’s Rules of Procedure sets out a number of criteria the Tribunal will consider when determining whether to grant a request for an interim remedy. The first of those factors is that “the Application appears to have merit.” In light of the serious jurisdictional issue which Mytrak has raised, I am not prepared to consider the applicant’s request at this time. Once the preliminary jurisdictional issue is determined, Mr. de Pelham can renew his Request for Interim Remedy if he so chooses.

ORDER

15Having regard to the above decision, I order the following:

a. The Registrar shall provide a copy of this decision to the Commission. No later than October 31, 2008, the Commission shall advise whether it wishes to intervene in these proceedings. If so, by the same date it shall deliver to the parties, and file with the Tribunal, its request and submissions in accordance with Rule 11. At the same time, it shall deliver its submissions on the question: does the ground of “record of offences” apply to persons charged with an offence under the Criminal Code;

b. The applicant shall be entitled to file additional submissions in relation to the jurisdictional issue and the Commission intervention, if applicable. If he chooses to do so, he shall deliver them to the other parties and to the Commission, if it has indicated an intention to participate, and file them with the Tribunal no later than November 21, 2008;

c. Mytrak, Ricoh and all of the personal respondents shall be entitled to file additional submissions in relation to the jurisdictional issue and the Commission intervention, if applicable. If they choose to do so, they shall deliver them to the applicant and the Commission, if it has indicated an intention to participate, and file them with the Tribunal no later than December 12, 2008;

d. The applicant and the Commission, if it has sought to intervene, shall have a right of reply. Any reply must be delivered to all other parties, and filed with the Tribunal no later than December 22, 2008;

e. Should any party take the position that the Tribunal ought to hear oral submissions on the preliminary jurisdictional issue, it shall so indicate, and provide reasons why this issue cannot be appropriately dealt with in writing.