Mark de Pelham v. Ricoh Canada Inc., 2009 HRTO 2069

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mark de Pelham

Applicant

-and-

Ricoh Canada Inc., Glen Carr, Mary-Ellen Lewis,

Ashton Nazarene and Domenic Giorgio

Respondents

DECISION

Adjudicator: Jay Sengupta

Date: December 1, 2009

Citation: 2009 HRTO 2069

Indexed as: de Pelham v. Ricoh Canada

APPEARANCES BY

Mark de Pelham, Applicant ) On His Own Behalf

Ricoh Canada Inc., Glen Carr, ) E.C. Carla Zabek, Counsel

Mary-Ellen Lewis, Ashton Nazarene )

And Dominic Giorgio )

INTRODUCTION

1The applicant, Mark de Pelham, filed an Application with the Tribunal on September 5, 2008 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”). In his Application, he claimed that he suffered discrimination in the area of employment on the basis of record of offences and that he was subject to reprisal or the threat of reprisal by the respondents. The respondents filed a Response denying the allegations.

2In an Interim Decision, the Tribunal dismissed that portion of the Application that alleged discrimination on the basis of record of offences, ruling that “record of offences” covers persons convicted of an offence and not those who have been charged but not convicted. The Tribunal went on to order that the balance of the Application which involved allegations of reprisal proceed. See de Pelham v. Mytrak Health Systems, 2008 HRTO 172.

3The respondents then filed a Request for Order During Proceedings in which they sought early dismissal of the Application under Rule 13.1, on the basis that it was outside the jurisdiction of the Tribunal. The Request for early dismissal was denied in another Interim Decision. See de Pelham v. Ricoh Canada, 2009 HRTO 813.

4A hearing was held into this matter on October 1, 2009. Although he was given the opportunity to do so, the applicant did not give evidence on his own behalf. He chose, instead, to call the four personal respondents as witnesses. They testified about the events relating to the applicant’s dismissal from employment. The respondents did not then call any additional witnesses.

EVIDENCE

5The evidence provided by the four witnesses heard from at the hearing was that the respondent Ricoh Canada Inc. had hired the applicant as a bilingual customer service representative at its Inbound Call Centre and that during the interview the applicant had asked for a number of days off for various family related reasons.

6On his first day of training for his new position, when the applicant was asked to fill out a form allowing the employer to conduct a background check, he returned the form to the personal respondent, Ashton Nazarene, with a section regarding pending charges highlighted but not filled in.

7The personal respondent, Ashton Nazarene, spoke to the applicant about the forms and was told that the applicant had some criminal charges pending and that he had told the “labour board” about his former employer. Although the applicant’s Application states that he had told Ashton Nazarene about his “experience with a former employer and the subsequent HRTO file”, the witness’ evidence did not support the applicant’s allegation on this point.

8Mr. Nazarene testified that he told Domenic Giorgio, then the manager of the Inbound Call Center, about the highlighted form and the applicant’s pending charges. He indicates that he did not discuss the applicant’s comments about the “labour board” with Mr. Giorgio.

9Domenic Giorgio testified that he tried to convene a meeting with the applicant, the two managers, Ashton Nazarene and Glen Carr, as well as Mary-Ellen Lewis, a human resource specialist, and himself the same day. The meeting eventually took place the following day.

10All four personal respondents were consistent in their description of what took place at the meeting with the applicant. The applicant was asked about the pending charges by Domenic Giorgio and the respondents describe his answers as evasive, inconsistent and evolving. During the meeting, the applicant confirmed that the time off he had been seeking during his interview for the position was related to the pending charges and not family business and admitted that he had not been truthful about his request for time off.

11The respondents all testified that the authority to terminate the applicant lay with the personal respondent, Domenic Giorgio. They agree that the remaining three were consulted by Mr. Giorgio and concurred with his assessment and final decision. They also confirm that there was no discussion of the applicant’s previous employment or of any legal action he may have been taking against his former employer.

12It was Domenic Giorgio’s evidence that he was unaware that the applicant had filed a human rights application against another employer at the time that the decision was made to terminate his employment. He was concerned about what he viewed as the applicant’s disregard for honesty and his lack of integrity and with his own responsibility for the protection of company assets. He testified that the applicant’s failure to tell the truth during his initial interview and his behavior during the meeting with all the personal respondents were the factors that led him to make the decision that he did.

ANALYSIS

13Section 8 of the Code, which prohibits reprisals or threat of reprisals, states:

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.

14In the present circumstances, the applicant alleges that he attempted to enforce rights that he believed were protected under the Code and suffered reprisals as a consequence. In order for him to succeed in his Application, given the earlier rulings of the Tribunal, the applicant would have to prove that his human rights application against his previous employer was a factor or consideration in these respondents’ decision to terminate his employment.

15The applicant argued that he was treated unfairly by the respondents and that he was terminated because he had been assertive about his rights. He questions why there was no discussion about his ability to do the job in question. He argues that there could have been prior knowledge of his human rights application before his termination because he had told the personal respondent, Ashton Nazarene, when he was questioned about his highlighted but incomplete form. However, despite having the opportunity to do so, the applicant chose specifically not to give his evidence formally and subject to affirmation. He also chose to call the personal respondents, including Ashton Nazarene, as his witnesses and their evidence, given subject to an affirmation, does not support the applicant’s argument that there was prior knowledge of any human rights applications filed by the applicant against his former employers.

16Having considered the evidence before me, which consists of the testimony of the four personal respondents, I am unable to find that the applicant has established that his human rights Application concerning another employer was a factor or consideration in the decision by the corporate respondent to terminate his employment.

The evidence given by Mr. Nazarene, which was not contradicted by the remaining witnesses, was that he was told by the applicant that he had “consulted with the labour board” and that he had not discussed that fact with the other three respondents. The evidence before me is also that during the meetings which led to the termination, there was no mention or discussion of any human rights applications that may have been filed by the applicant. As such, there is no evidence of any link or nexus between his human rights Application and the respondents’ decision to terminate his employment.

17For all of these reasons, the Application is dismissed.