Abdul Jamal v. First Student Canada, 2009 HRTO 2083

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Abdul Jamal

Applicant

-and-

First Student Canada

Respondent

DECISION

Adjudicator: Alison Renton

Date: December 2, 2009

Citation: 2009 HRTO 2083

Indexed as: Jamal v. First Student Canada

Written Submissions by

Abdul Jamal, Applicant ) Anser Farooq, Counsel

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging that the respondent discriminated against the applicant in respect of his employment.

2Initially, the applicant submitted an Application dated August 26, 2009. Subsequently, the applicant’s counsel submitted an Application dated September 23, 2009 and asked the Tribunal to replace the initial Application with the September 23, 2009 Application. While the essence of both Applications is the same, I will refer to the September 23, 2009 Application as being the “official” Application accepted by the Tribunal.

3The sole ground identified in the Application is “record of offences”. On October 15, 2009, the Tribunal sent a Notice of Intent to Dismiss (“NOID”) to the applicant and his counsel advising that it appeared that the Application was outside of the Tribunal’s jurisdiction because the Application did not allege discrimination on the ground of “record of offences” as defined in the Code. The Tribunal requested submissions on jurisdiction and referred the applicant and his counsel to the Tribunal’s decision in de Pelham v. Mytrak Health Systems, 2009 HRTO 172, on this issue. The applicant’s counsel filed submissions dated November 13, 2009.

4This Decision addresses whether the Application is within the Tribunal’s power to decide.

5The applicant, who had previously worked for the respondent, applied for employment in 2009 as a school bus driver with the respondent. As of August 2009, the applicant had undertaken drug screen testing, a criminal record check, and 20 hours of extra training. He had also successfully passed a road test and had been issued various work equipment and handbooks. The applicant was given a letter with his name written in for an appointment on August 26, 2009, to attend a mandatory workshop and choose his route for the year.

6The applicant submits that on August 24, 2009, he attended a meeting with the general manager of the respondent who told him that the respondent would not employ him (the “termination”) because he had been charged with a series of criminal offences during his employment with the respondent in 2006. The respondent confirmed these reasons in a letter, dated August 24, 2009, which was appended to the Application. The relevant portion of that letter states:

A continuing review and consideration of your alleged involvement in criminal activities has caused the Company to conclude that it is not prepared to deploy you as a school bus driver.

7The applicant submits that while an employee with the respondent in 2006, he was charged with several counts under the Criminal Code and incarcerated for 17 months. One of the charges, he submits, was withdrawn and the other was resolved by a peace bond the terms of which concluded in April 2009. The applicant was never convicted of any criminal offence and therefore did not receive a pardon.

8The applicant submits that the respondent improperly believed and concluded that he had been convicted of a criminal offence, improperly determined that the applicant was and is in some manner associated in criminal activities and improperly determined that he was and is in some manner associated with other co-accused who have a record of offences and who entered guilty pleas shortly before his termination.

9The applicant describes that the termination of his employment was reported by the media which broadcast to the public the termination letter and comments from a representative of the respondent and that this demonstrates that the respondent continued to hold and perpetuate the belief that the applicant has a criminal record, a criminal past and a record of offences.

10The applicant described in his Application how his termination negatively affected he and his family and submits that the termination is discriminatory, unjust and without merit.

Record of Offences

11Section 5 of the Code prohibits discrimination in employment on a number of grounds. It states:

(1)Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability.

12The drafters of the Code assigned a very specific meaning to “record of offences” which is found at section 10 as:

“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.

13In de Pelham v. Mytrak Health Systems, supra, the Tribunal determined that the Code did not apply to an applicant who was charged with a criminal offence, but did not have a criminal record. In reaching this conclusion, Chair Gottheil stated at paras. 6-10:

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, 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).

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 CanLII 89 (SCC), [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; R. v. Ulybel Enterprises Ltd., 2001 SCC 56, [2001] 2 SCR 867 at para. 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.

14Unlike de Pelham, supra, where the applicant’s criminal charges were still active, the applicant in this case has had his criminal charges resolved. One charge was withdrawn and the other resolved by entering into a peace bond, which has now expired. The applicant does not have a record of offences. He does not allege he was discriminated against by the respondent because he was convicted of an offence for which he has been pardoned or an offence under any provincial enactment. He does not meet the particular definition of “record of offences” under the Code and that part of his Application alleging discrimination on the basis of record of offences is dismissed.

Association with person identified by a prohibited ground of discrimination

15A finding of discrimination can also be made if the applicant is associated with a person identified by a prohibited ground of discrimination. This protection is found in section 12 which states:

A right under Part I is infringed where the discrimination is because of relationship, association or dealings with a person or persons identified by a prohibited ground of discrimination.

16While the applicant did not mark off “association with a person identified by a ground listed above” as a Code ground on his Application form, I am prepared to consider his Application on this basis based upon the written submissions he filed through counsel in response to the NOID.

17The applicant submits that shortly before the August 24, 2009 meeting, some of the co-accused entered a guilty plea for their respective criminal charges. The termination “came on the heels of the guilty pleas”. In his submissions, the applicant suggests that the respondent also improperly determined that the applicant was and is in some manner associated with other co-accused who have a record of offences and that this was another reason why the respondent refused to employ him.

18Even assuming that allegation to be true, the co-accused who entered guilty pleas do not meet the definition of “record of offences”. Even if I assume that the guilty pleas resulted in convictions (for which there is no evidence), there is no evidence that any co-accused have received pardons. The applicant also does not allege that the co-accused were convicted of an offence in respect of any provincial enactment. Since the co-accused do not meet the particular definition of “record of offences” under the Code, the applicant cannot be discriminated against under the Code for his association with individuals identified by this ground. This aspect of the Application is dismissed on that basis.

Announced intention to discriminate

19The applicant argues that the respondent violated section 13(1) of the Code when comments from a representative of the respondent were made to the public and the media broadcast his termination letter.

20Section 13(1) states:

A right under Part I is infringed by a person who publishes or displays before the public or causes the publication or display before the public of any notice, sign, symbol, emblem, or other similar representation that indicates the intention of the person to infringe a right under Part I or that is intended by the person to incite the infringement of a right under Part I.

21For section 13 to be breached, the representation must indicate an intention to infringe a Code-protected right. (See Entrop v. Imperial Oil Limited, 2000 CanLII 16800 (ON C.A.)). Because I have found that neither the applicant nor the co-accused meet the definition of “record of offences” under the Code, the respondent cannot be found to have violated section 13(1) even if it published or displayed the termination letter before the public.

22For the reasons set out above, the Application is therefore dismissed.