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Human Rights Tribunal of Ontario
**B E T W E E N:**
Mark de Pelham
Applicant
-and-
Hilti Canada
Respondent
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## DECISION
**Adjudicator:** Naomi Overend
**Date:** June 1, 2011
**Citation:** 2011 HRTO 1046
**Indexed as:** de Pelham v. Hilti Canada
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[1] The applicant filed an Application alleging discrimination in employment on the basis of disability contrary to the *Human Rights Code*, R.S.O. 1990, c. H.19, as amended (the "Code"). The Tribunal issued a Notice of Intent to Dismiss ("NOID") on the basis that the Application was not within its jurisdiction. In response, the applicant filed detailed written submissions.
[2] The applicant states that he was "detained" by the Peel Police and held in custody from February 10-16, 2011, and at some point charged with an unspecified criminal offence. Subsequent to his release his employer appears to have terminated his employment, which the applicant alleges was the result of being charged with a crime. Essentially, the applicant now asks that the Tribunal find that a person charged with a criminal offence has a disability within the meaning of the Code.
[3] In *de Pelham v. Mytrak Health Systems*, [2009 HRTO 172](https://www.minicounsel.ca/hrto/2009/172), the Tribunal found that the Code ground of "record of offences" does not extend to protect persons who have been charged with a criminal offence.
[4] Disability is defined in section 10 of the Code:
"disability" means,
(a) any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device,
(b) a condition of mental impairment or a developmental disability,
(c) a learning disability, or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language,
(d) a mental disorder, or
(e) an injury or disability for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act, 1997;
[5] Under section 10(3), the right to equal treatment without discrimination because of disability includes "...the right to equal treatment without discrimination because a person has or has had a disability or is believed to have or to have had a disability."
[6] The applicant does not suggest that his being detained or charged is the result of a physical disability, mental impairment or developmental disability, learning disability, mental disorder or claim under the Workplace Safety and Insurance Act, 1997. Likewise, he does not suggest that he is perceived to have or have had a disability as set out in the Code's definition.
[7] Instead, he argues the definition of disability is not limited to the specific conditions set out in s. 10 (a) to (e), but must be read in concert with the preamble of the Code, which recognizes the "inherent dignity and the equal and inalienable rights of all members of the human family" and the "dignity and worth of every person."
[8] The second paragraph of the preamble, however, states "whereas it is public policy in Ontario to recognize the dignity and worth of every person and to provide for equal rights and opportunities without discrimination that is contrary to the law..." [Emphasis added.] As stated by the Tribunal in *de Pelham*, *supra* at para. 10:
> ... the Code does not cover every form of discrimination in every circumstance. The Legislature has made choices about what forms of discrimination should be proscribed and in which social areas.
[9] The applicant suggests that:
> a criminal record is a disability in the socio-political sense. Individuals charged with a crime may be burdened with the perceived possibility of incarceration or in the case at hand require accommodation to overcome the conditions of their disability.
[10] Simply because certain individual characteristics might have disadvantage attached to them does not make them a disability. Indeed, many of the enumerated grounds in the Code have disadvantage attached to them (e.g., race), but cannot be said to be "disabilities" within the meaning of the Code. Again, the reasoning in the Tribunal's previous decision in *de Pelham*, *supra*, at para. 9, is applicable:
> The language of the statute is clear and unambiguous and provides that "record of offences" covers only persons convicted of an offence. It is true that the Code is an important public policy statute and must be given a large, liberal and purposive interpretation, but this does not mean the Tribunal can depart from the express provisions of the legislation. As the Supreme Court said in *University of British Columbia v. Berg*, [1993 CanLII 89 (S.C.C.)](https://www.minicounsel.ca/scc/1993/89), [1993] 2 S.C.R. 353 (at 371):
>
> > This interpretive approach does not give a board or court licence to ignore the words of the Act in order to prevent discrimination wherever it is found. While this may be a laudable goal, the legislature has stated, through the limiting words in s. 3, that some relationships will not be subject to scrutiny under human rights legislation. It is the duty of boards and courts to give s. 3 a liberal and purposive construction, without reading the limiting words out of the Act or otherwise circumscribing the intention of the legislature.
[11] The legislature could have, but did not, protect individuals who are charged with criminal offences from differential treatment. Expanding the definition of disability in the manner suggested by the applicant would subvert the intent of the legislature rather than giving expression to it. I find that the fact of having been charged with a criminal offence or otherwise having a record of offences does not amount to a disability within the meaning of the Code.
[12] The Tribunal has no jurisdiction over the facts as alleged in the Application. The Application is, therefore, dismissed.
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Dated at Toronto, this 1<sup>st</sup> day of June, 2011
"Signed by"
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Naomi Overend
Vice-chair
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minicounsel