de Pelham v. Ricoh Canada Inc. (No. 2)
2008-00158-I, 2008-00331-I
2009-02-18
2009 HRTO 172
Ontario Human Rights Tribunal
CHRR Doc. 09-0254
Mark David de Pelham Complainant
and
Ontario Human Rights Commission Intervener
v.
Mytrak Health Systems Inc., Reed Hanoun, Ricoh Canada Inc., Glen Carr, Mary-Ellen Lewis, Ashton Nazarene and Domenic Giorgio Respondents
Before: Human Rights Tribunal of Ontario, Michael Gottheil
Appearances by:
Anthony Griffin, Counsel for the Commission
Mark David de Pelham, on his own behalf
Carla Zabek, Counsel for the Respondents Mytrak Health Systems Inc. and Reed Hanoun
Dave Lantz, Counsel for the Respondents Ricoh Canada Inc., Glen Carr, Mary-Ellen Lewis, Ashton Nazarene and Domenic Giorgio
CRIMINAL RECORD — protection by human rights legislation extends to those facing criminal charge or conviction — definition of record of offences — survey of the law — INTERPRETATION OF STATUTES — legislative intent as an aid to interpretation — definition of "record of offences" — JURISDICTION — complaint concerning criminal charge
Summary: The Human Rights Tribunal of Ontario dismissed a complaint filed by Mark David de Pelham against Mytrak Health Systems Inc. and Ricoh Canada Inc.
Mr. de Pelham alleged that he was discriminated against contrary to s. 5 of the Ontario Human Rights Code when his employment was terminated after he was charged with a criminal offence.
The Code prohibits discrimination because of a "record of offences". Section 10(1) defines "record of offences" as (1) offences in respect of which a pardon has been granted or (2) offences in respect of any provincial enactment.
Mr. de Pelham argued that this provision should be interpreted sufficiently broadly to include his circumstances. When his employment was terminated he had been charged, but was not found guilty of any offence. He argued that the Legislature could not have intended that persons with convictions would have more protection from discrimination than persons merely charged, who are presumed to be innocent. Mr. de Pelham pointed to the B.C. case law on this point, noting that the B.C. Human Rights Tribunal has interpreted a similar provision to protect persons who are charged with offences from discrimination, as well as those who are convicted.
The Tribunal rejected these arguments. It found that the plain meaning of the statute is that it protects persons who have been convicted of a Criminal Code or a provincial law violation.
The Tribunal dismissed the complaint.
See also (No. 1) (2008), CHRR Doc. 08-709, 2008 HRTO 147 and (No. 3) (2009), CHRR Doc. 09-1085, 2009 HRTO 813.
CASES CITED
Clement v. Jackson (2006), 57 C.H.R.R. D/507, 2006 BCHRT 411: 8
de Pelham v. Mytrak Health Systems Inc. (No. 1) (2008), CHRR Doc. 08-709, 2008 HRTO 147: 3
R. v. Ulybel Enterprises Ltd., 2001 SCC 56, [2001] 2 S.C.R. 867: 10
University of British Columbia v. Berg, 1993 CanLII 89 (SCC), [1993] 2 S.C.R. 353, 18 C.H.R.R. D/310: 9
LEGISLATION CITED
British Columbia
Human Rights Code, R.S.B.C. 1996, c. 210: 8
Ontario
Human Rights Code, R.S.O. 1990, c. H.19
s. 5: 5
s. 10(1): 2
s. 34: 1
Yukon
Human Rights Act, R.S.Y. 2002, c. 116: 10
INTRODUCTION
1This decision determines a jurisdictional issue raised in these two Applications filed under s. 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the "Code"). The 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.
2The respondents argue that the Tribunal does not have jurisdiction to deal with the applications because the ground of "record of offences" does not apply in circumstances where individuals are merely charged with a criminal offence. The respondents submit that s. 10(1) of the Code provides a specific definition of "record of offences" and requires that for an individual to claim protection under that ground, they must have been convicted of a criminal offence and have received a pardon, or have been convicted of a provincial offence.
3In an interim decision dated October 10, 2008, de Pelham v. Mytrak Health Systems, 2008 HRTO 147 [CHRR Doc. 08-709], the Tribunal determined that it was appropriate to deal with the jurisdictional issue raised by the respondents as a preliminary matter and set a timeframe for the parties to exchange written submissions. The Tribunal also invited the Ontario Human Rights Commission (the "Commission") to provide submissions on the jurisdictional issue. All parties provided submissions in accordance with the directions set out in the October 10, 2008, decision.
DECISION
4The facts pertinent to this jurisdictional issue are not in dispute. The applicant does not claim he was terminated or denied employment on the basis that he had been convicted of a criminal offence for which he received a pardon, or that he was convicted of a provincial offence. The applicant claims that he was terminated from employment because he had been charged with a criminal offence.
5Section 5 of the Code prohibits discrimination in employment on the basis of "record of offences." That term is defined in s. 10(1) as follows:
10(1) ...
"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;
6Mr. 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.
7Mr. 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.
8Finally, 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, R.S.B.C. 1996, c. 210, 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 (see e.g.: Clement v. Jackson (2006), 2006 BCHRT 411, 57 C.H.R.R. D/507).
9Although 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 CanLII 89 (SCC), [1993] 2 S.C.R. 353 (at 371) [18 C.H.R.R. D/310 at § 27]:
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.
10Neither 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: R. v. Ulybel Enterprises Ltd., 2001 SCC 56, [2001] 2 S.C.R. 867 at § 28. 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, R.S.Y. 2002, c. 116 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.
11Finally, 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.
12In view of the above, the jurisdictional objection raised by the respondents is allowed. The application against Mytrak and Reed Hanoun (File No. 2008-00158-I) is dismissed. The application against Ricoh Canada and Glen Carr, Mary-Ellen Lewis, Ashton Nazarene and Domenic Giorgio (File No. 2008-00331-I) is dismissed insofar as it alleges discrimination on the ground of record of offences. The application in relation to the allegation of reprisal shall proceed.
13The applicant indicated in his written reply that he wished to make further oral submissions. He says that it would permit him to more fully explain his position. He also requests the opportunity to have an oral hearing so that the media can be invited.
14The parties originally all agreed to have this preliminary issue dealt with by way of written submissions. The written submissions filed by the applicant were clear, cogent and understandable. I see no reason why it is necessary to hear oral submissions from the parties.
15Both the applicant and the respondents in File No. 2008-00331-I (the Ricoh application) expressed a willingness to participate in mediation. This matter is referred to the Registrar to set a date for mediation in Tribunal File No. 2008-00331-I.