Human Rights Tribunal of Ontario
B E T W E E N:
Charles Nahrgang Applicant
-and-
Unique Personnel Canada Inc., General Electric Canada and Glen Aldridge Respondents
INTERIM DECISION
Adjudicator: Naomi Overend Date: March 16, 2009 Citation: 2009 HRTO 304 Indexed as: Nahrgang v. Unique Personnel Canada
1The Application made under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleges discrimination in employment on the basis of "record of offences." This Interim Decision deals with the position taken by both respondents that the ground "record of offences" does not apply because the applicant was not convicted of any offence. Although not framed as such by either respondent, this issue goes to whether this Tribunal has jurisdiction over the Application.
2The applicant was an employee of Unique Personnel Canada Inc. ("Unique Personnel"), assigned to do "shunt driver" work at General Electric Canada ("G.E."). While working at G.E., he allegedly ran over a family of geese with his truck. Unique Personnel sent him a letter suspending him for two weeks as of June 29, 2009, and sent a subsequent letter saying that he was unable to continue with his assignment at G.E. due to his "actions."
3The apparent foundation for the applicant's assertion that he had been discriminated against on the basis of record of offences is that he was charged under the Criminal Code for "'willfully' causing unnecessary suffering to a Gosling by purposely running a motor vehicle over it" and subsequently found not guilty of that offence on June 11, 2008.
4The term "record of offences" is defined in section 10(1) of the Code 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(a) an offence in respect of which a pardon has been granted under the Criminal Records Act (Canada) and has not been revoked; or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.
5In a recent decision, de Pelham v. Mytrak Health Systems, 2009 HRTO 172, the Tribunal addressed the issue of whether the ground "record of offences" applies to someone who has merely been charged with a criminal offence (paras. 6 and 9):
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. …
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 that the Tribunal can depart from the express provisions of the legislation.
6The Tribunal requests written submissions from the applicant on the issue of its jurisdiction to hear this Application. In these submissions, the applicant should address the following:
(a) Whether he agrees with Unique Personnel and G.E.'s factual assertion that the termination of his assignment with G.E. and the two week suspension were as a result of information they had that the applicant had purposefully run over a family of geese, rather than as a result of him being criminally charged;
(b) His position on the definition of "record of offences" in the Code, and the Tribunal's interpretation of that definition in de Pelham v. Mytrak Health Systems; and
(c) The application of the definition of "record of offences" to the facts of his Application.
7The applicant's submissions should be delivered to the respondents and filed with the Tribunal by March 27, 2009. Following receipt of the submissions, or if submissions are not provided by the date set, the Tribunal may consider whether the Application should be dismissed under Rule 13.1 of the Tribunal's Rules of Procedure, which permits it to dismiss all or part of an application that is outside its jurisdiction.
8The applicant may wish to consult the Applicant's Guide, available on the Tribunal's website at www.hrto.ca or from the Registrar's office. Pages 2-3 set out sources of assistance that may be available to him.
9I am not seized of this matter.
Dated at Toronto, this 16^th^ day of March, 2009.
"Signed By"
__________________________________
Naomi Overend Vice-chair