Lawrence v. Toronto Police Services Board, 2009 HRTO 711

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Shane Lawrence

Applicant

-and-

Toronto Police Services Board and William Blair

Respondents

INTERIM DECISION

Adjudicator: Sherry Liang

Date: May 29, 2009

Citation: 2009 HRTO 711

Indexed as: Lawrence v. Toronto Police Services Board

1This is an Application filed on December 18, 2008 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the "Code"). As filed, the Application alleges discrimination in employment on the basis of a record of offences. The applicant alleges that he applied for a position with the Toronto Police Service (TPS). Following that, he was charged with a criminal offence, which was later withdrawn. Although he was given a conditional offer of employment, the offer was rescinded.

2The Toronto Police Association, which has been given notice of this Application and whose counsel filed this Application on the applicant’s behalf, has also filed a grievance contesting the decision of the TPS. The TPS takes the position that the collective agreement does not apply to an individual who has not been hired; there is thus an issue about whether the grievance is arbitrable. No party has requested that this Application be deferred pending the completion of that grievance process.

3The respondents, however, have requested early dismissal of the Application, on the basis that it does not raise matters within the scope of the Code, and have filed a Request for an Order During Proceedings setting out their submissions on the request. The respondents rely on the decision in de Pelham v. Mytrak Health Systems, 2008 HRTO 172, in which the Tribunal found that a "record of offences", as a prohibited ground of discrimination under the Code, covers persons convicted of an offence but not those charged and not convicted.

4The applicant has responded to the Request. He submits that his circumstances fall under the definition of "record of offences" and in the alternative, he seeks to amend his Application to include discrimination on the grounds of race. The respondents oppose the request to amend the Application.

BACKGROUND

5The applicant applied for a position as a part-time Court Officer with the TPS. Subsequent to his application, he was charged with one count of assault. In April of 2008, the charge was withdrawn. Later that month, he was offered employment with the TPS conditional on, among other things, RCMP clearance (a criminal background check). The TPS learned of a domestic assault charge through the criminal background check. The TPS contacted the police service through which the assault charge was laid and learned of the background events to the charge. They were aware that the charge had been withdrawn. The TPS also conducted a telephone interview with the spouse of the applicant. Following on the information it gathered, the TPS decided not to hire the applicant.

REQUEST TO DISMISS

6Section 5 of the Code prohibits discrimination in employment on the grounds of, among other things, a "record of offences", which is in turn defined in section 10:

"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.

7The respondent rightly asserts, and the applicant recognizes, that in de Pelham, the Tribunal found that the language of the Code could not be interpreted to include protection of individuals charged with but not convicted of an offence.

8In asserting that de Pelham does not determine the outcome of this Application, the crux of the applicant’s submission is that

the Respondents utilized their police powers to conduct a police investigation through which the Applicant was effectively convicted of serious Criminal Code offences. The fact that the investigating police service and the Crown chose not to pursue these charges and/or withdrew them is akin to a pardon, in the circumstances.

9The Tribunal finds no validity in this argument. The applicant’s circumstances cannot be meaningfully distinguished from those before the Tribunal in de Pelham. The inquiries made by the TPS do not constitute a "conviction" within the meaning of "record of offences. Nor can the decision not to pursue charges or withdraw them be considered a "pardon".

10The Tribunal finds no basis on which the Application can proceed as a claim of discrimination based on a "record of offences." However, for the reasons below, this conclusion does not lead to a dismissal of the Application.

AMENDMENT OF THE APPLICATION

11Rule 1.7(c) of the Tribunal’s Rules of Procedure states that, in order to provide for the fair, just and expeditious resolution of any matter before it, the Tribunal may allow any filing to be amended.

12The Tribunal allows the Request to amend the Application. The Request is made at an early stage of the proceedings. Although the amendment is substantial and introduces a different theory of discrimination based on a different ground than that initially asserted, there is no issue about the timeliness of the new allegation, and no prejudice can or has been asserted. In these circumstances it would not serve the fair, just and expeditious resolution of the issues to require the applicant to file a new Application.

13The Tribunal’s decision to permit the amendment in these circumstances is not based on any assessment of the merits of the claim; it merely permits the claim to be made within the current Application.

14The applicant has indicated that he relies on the same underlying facts. The respondents may have a further two weeks from the date of this Interim Decision to file an amended Response if they so wish.