Wayne Marsh v. Spinrite LP, 2010 HRTO 273

Human Rights Tribunal of Ontario

Between:

Wayne Marsh Applicant

-and-

Spinrite LP Respondent

Interim Decision

Adjudicator: Naomi Overend Date: February 6, 2010 Citation: 2010 HRTO 273 Indexed as: Marsh v. Spinrite

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 disability and "record of offences." This Interim Decision addresses whether the Tribunal has jurisdiction to deal with the "record of offences" portion of this Application.

2On January 5, 2010, the respondent brought a Request for Order During Proceedings (Form 10) asking the Tribunal to dismiss the part of the Application relating to "record of offences." The attached Form 23 indicates that counsel for the applicant was served with this Request for Order via courier on that date. Any Response to the Request for Order (Form 11) should have been received within 14 days of service. To date, no response has been received, nor has the applicant requested an extension of time to make his submissions.

3The Application indicates that the applicant was an employee of Spinrite LP for 29 years. He was convicted of possession of a narcotic for the purpose of trafficking and sentenced to serve a 12 month custodial sentence. He applied for a leave of absence from work to serve that custodial sentence, but this was denied and his employment with Spinrite LP terminated. This is the basis for his claim of discrimination on the basis of "record of offences."

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(a) an offence in respect of which a pardon has been granted under the Criminal Records Act (Canada) and has not been revoked; or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.

5The respondent correctly points out that the applicant does not fall within that definition as he has not been pardoned. The ground "record of offences" does not protect those who have been convicted of a federal offence (and any consequences that may arise from that conviction), but only provides protection to those who have received a pardon, which has not been revoked.

6Accordingly, the Tribunal has no jurisdiction over allegations relating to this ground and the ground of record of offences shall be removed from the Application.

7I am not seized of this matter.