HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Hans Harry der von Felix
Applicant
-and-
International Financial Data Services Canada Limited, Gregory Peck, Eileen Collins and Christina Armour
Respondents
CASE RESOLUTION CONFERENCE DECISION
Adjudicator: Sunil Kapur
Indexed as: der von Felix v. International Financial Data Services Canada
APPEARANCES BY
Hans Harry der von Felix, Applicant ) On his own behalf
International Financial Data Services Canada ) Connie Reeve andl Limited, Gregory Peck, Eileen Collins and ) Lisa Carty, Counsel Christina Armour, Respondents )
Introduction
1This Case Resolution Conference Decision involves an Application dated August 7, 2008 under s. 53(3) of the Human Rights Code, R.S.O. 1990, c.H.19, as amended (the “Code”) alleging discrimination in employment on the basis of disability, ancestry, colour, ethnic origin, race, breach of settlement, reprisal and record of offences The respondents in the Application are International Financial Data Services Canada Limited, Gregory Peck, Eileen Collins and Christina Armour.
2At the hearing, Hans Harry der von Felix (the “applicant”) confirmed that the issues raised in the Application were:
- Did the respondents breach the Code by terminating the applicant’s employment when his criminal background check confirmed that he had not been convicted of any offence but was at the time charged with two offences?; and
- Did the respondents breach the Code by having a criminal background check performed after the applicant commenced employment?
Evidence
3The applicant confirmed at the hearing that, given the issues raised in the application, there was no need to call any other evidence. Accordingly, the witnesses attending under summons were released.
4The parties agreed the following facts were not in dispute:
- The applicant’s employment was terminated because a criminal background check established that the applicant was at the time charged with two offences. The criminal background check confirmed that the applicant was not convicted of any offences.
- The criminal background check was conducted after the applicant commenced employment.
- Other employers may conduct criminal background checks prior to employees commencing employment.
5The applicant took the position that “most” other employers conduct criminal background checks prior to an employee commencing employment. The respondents took the position that “some” other employers conduct criminal background checks prior to an employee commencing employment. Given my reasons below, the difference between “most” and “some” is immaterial.
Decision
6The essence of the applicant’s argument was that it was a breach of the law for an individual to have his employment terminated because he was charged with an offence. The applicant argued that such a termination would breach the presumption of innocence. The applicant did not present any rational argument on why a termination of employment based on a charge for an offence was a breach of the Code.
7Section 5 of the Code prohibits discrimination in employment on the basis of “record of offences”. That term is defined in section 10(1) as follows:
“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.
8The definition of record of offences is clear and unambiguous and provides that “record of offences” covers only persons convicted of an offence and not charged with an offence. This has been previously confirmed by the Tribunal in de Pelham v. Mytrak Health Systems, 2008 HRTO 172. Although the presumption of innocence is an important aspect to our criminal justice system, given the statutory definition I do not agree with the applicant that a termination of employment based on a charge for an offence is a breach of the Code.
9On the issue of conducting a criminal background check after commencing employment, the applicant presented no rational argument as to why this would be a breach of the Code. The timing of the criminal background check, either before or after employment commences, does not on its own result in a breach of the Code.
10Accordingly, the Application is dismissed.
Dated at Toronto this 23rd day of September, 2009.
“Signed by”
Sunil Kapur
Member```