De Pelham v. Mississauga (City), 2010 HRTO 776

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mark de Pelham

Applicant

-and-

City of Mississauga

Respondent

DECISION

Adjudicator: Jay Sengupta

Date: April 8, 2010

Citation: 2010 HRTO 776

Indexed as: De Pelham v. Mississauga (City)

APPEARANCES

Mark de Pelham, Applicant ) Did not appear

City of Mississauga, Respondent ) Michelle Alton, Counsel

Reasons for Decision

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 respect of employment on the ground of record of offences. A Response and Reply have been filed.

2Pursuant to an earlier Interim Decision, 2009 HRTO 753, a telephone conference call was scheduled to hear the parties' submissions on the question of how the events described amount to discrimination in the area of employment.

3A Notice of Conference Call was sent to the parties on July 14, 2009 setting the call for August 17, 2009. On July 28, 2009, the Tribunal received a Notice of Constitutional Question from the applicant that led to the rescheduling of the conference call to a later date to allow for any intervening parties to participate.

4Copies of the all documents in the file were sent to the Ontario Human Rights Commission and the Attorneys General of Canada and Ontario, along with a Case Assessment Direction setting out next steps, the first of which was a rescheduling of the conference call. A date was set by which the Attorneys General and the Commission were to notify the Tribunal if they intended to participate in these proceedings. Neither of the Attorneys General responded and the Commission communicated that they did not intend to participate.

5Accordingly, a second Notice was sent on January 14, 2010 to the applicant and the respondent only, in which the parties were advised that the call would commence at 10 a.m. on February 22, 2010. All correspondence, including the Notice was sent to the applicant at the address provided by him in his Application and was not returned.

6At the specified time, the respondent was present and represented. The applicant was not present. I advised those present that the hearing would commence at 10:15 a.m. or when the applicant arrived, whichever occurred first. At 10:15 a.m., the applicant was still not present and he failed to call in for the remainder of the teleconference.

Decision

Dismissed as Abandoned

7There is no indication that the applicant did not receive notice of the conference call hearing. I am satisfied that the applicant received timely and proper notice.

8As the applicant received timely and proper notice of the conference call scheduled to hear submissions on the Tribunal's jurisdiction to hear his Application and failed to attend, and in the absence of any explanation of his failure to participate as required, the Application is dismissed as abandoned.

Dismissed for Lack of Jurisdiction

9In the event that the applicant did not intend to abandon the Application, I have considered the written materials filed by the parties and the oral submissions made by counsel for the respondent on the preliminary issue.

10The narrative in the Application indicates 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 indicated 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".

11Section 34(1) of the Code provides that a person who believes that any of his or her rights under Part I of the Code have been infringed may apply to the Tribunal. The Tribunal's jurisdiction to hear and determine human rights applications is based on the Code, which prohibits discrimination in specific social relationships such as housing, employment and the provision of services, goods or facilities.

12Although the Application alleged that the applicant was discriminated against on the basis of record of offences in the area of employment, it is not clear what the relationship between the applicant and the respondent was and how the applicant's rights in the area of employment were infringed by the advertisement posted by the respondent.

13The respondent seeks to have the Application dismissed as it is its position that the application does not raise issues that the Tribunal has the power to decide. There is nothing in the facts alleged that suggest that the type of criminal records check described in the job posting would lead to the exclusion of a person protected by the Code.

14In the circumstances, I find that the applicant has not raised issues that the Tribunal has the power to decide.

ORDER

20For the reasons stated above, the Application is dismissed