Human Rights Tribunal of Ontario

Between:

Mark de Pelham Applicant

-and-

Ricoh Canada Inc., Glen Carr, Mary-Ellen Lewis, Ashton Nazarene and Domenic Giorgio Respondents

Interim Decision

Adjudicator: Jay Sengupta Date: June 10, 2009 Citation: 2009 HRTO 813 Indexed as: de Pelham v. Ricoh Canada

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"). He claims 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 have 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.

3The respondents have now filed a Request for Order During Proceedings in which they seek early dismissal of the Application under Rule 13.1, on the basis that it is outside the jurisdiction of the Tribunal.

4The argument advanced by the respondents is that the balance of the Application focuses on the ground of reprisal or threat of reprisal and that the alleged reprisal must be connected to an attempt to enforce Code protected rights. The respondents argue that since the earlier decision of the Tribunal confirmed that persons charged but not convicted do not fall within the defined ground of "record of offences", the applicant cannot be seen to have been attempting to enforce Code protected rights. Therefore, they argue that this Application does not fall within the jurisdiction of the Tribunal. The respondents cite the Tribunal's decision in Mirea v. Canadian National Exhibition, 2009 HRTO 32 in support of their position.

5The applicant has not sent in a response to the Request for Order and the time for doing so has now passed.

6Section 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.

7In 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. The decision in Mirea, in contrast, involved a situation where there was no allegation of any attempt to enforce rights under the Code.

8In this Application, the facts are that the applicant had a sincere, and not unreasonable, belief that he was covered by the Code. He instituted proceedings under the Code by filing an Application and a determination was made, after hearing submissions from the parties and the Ontario Human Rights Commission on a point of statutory interpretation, that the Code did not cover his circumstances. The Tribunal's Interim Decision clarified the law in Ontario on this point. In such a situation, the Tribunal is satisfied that the protection against reprisals in section 8 applies.

9The respondent's Request to Dismiss the Application is, therefore, denied.

[10] I am not seized of this matter.