Mark de Pelham v. City of Mississauga, 2009 HRTO 753

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mark de Pelham

Applicant

-and-

City of Mississauga

Respondent

interim DECISION

Adjudicator: Jay Sengupta

Date: June 8, 2009

Citation: 2009 HRTO 753

Indexed as: De Pelham v. City of Mississauga

1This is an Application to the Tribunal filed on January 6, 2009 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”). The applicant alleges that he has suffered discrimination in the area of employment on the ground of record of offences. A Response and Reply have been filed.

2In its Response, the respondent requests that the Application be dismissed as the very issues raised in the Application have been determined in the Tribunal decision in de Pelham v. Mytrak Health Systems, 2008 HRTO 172. The applicant has made submissions in response to that request, in his Reply.

3On review of the materials, it appears to the Tribunal that there is some question about whether this Application can succeed, regardless of the applicability of the decision in de Pelham.

4It appears from the narrative contained in the Application documents that the language used in a job advertisement posted by the respondent led the applicant to file this Application. In particular, the applicant takes exception to the fact that the advertisement states that “a criminal record search will be required of the successful candidate … to verify the absence of a criminal record for which a pardon has not been granted”.

5The applicant asserts that the job advertisement is discriminatory because by requiring a criminal reference search, the information obtained through such a search may be used by the respondent to discriminate on the basis of a criminal charge that did not lead to a conviction, or even an apprehension under the Mental Health Act, R.S.O. 1990, c. M.7, as amended.

6The applicant did not indicate that he applied for the position advertised or has had any interaction with the respondent apart from filing this Application. It appears therefore that he may be relying on section 23 of the Code, which states that the right to equal treatment in employment is infringed “where an invitation to apply for employment or an advertisement in connection with employment is published or displayed that directly or indirectly classifies or indicates qualifications by a prohibited ground of discrimination”.

7Section 5 of the Code prohibits discrimination in employment on the basis of a record of offences, among other things. Section 10 of the Code states:

“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;

8Although the Application alleges that the job advertisement discriminates on the basis of record of offences in the area of employment, it is not clear how the advertisement “directly or indirectly classifies or indicates qualifications” by a record of offences as defined in the Code. Moreover, although the applicant takes the position that the protection against discrimination on the basis of a record of offences should extend to persons who are charged but not convicted, or apprehended under the Mental Health Act, it is not clear how the advertisement classifies or indicates qualifications that would exclude such persons.

9In view of the material before it, the Registrar will schedule a one hour conference call hearing to hear the parties’ submissions on the issue of whether, even accepting all of the facts described, they amount to discrimination in the area of employment.

10If either party wishes to rely on any written materials (including written submissions, documents or case law) or facts not already before the Tribunal, they must deliver such additional material to the other party and file it with the Registrar no later than two weeks before the date of the conference call. Following the conference call the Tribunal will determine whether there is a basis to proceed with the Application, and may make further directions.

11I am not seized.