Musoni v. Logitek Technology Ltd., 2011 HRTO 1122

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Bernard Musoni

Applicant

-and-

Logitek Technology Ltd., Larry Detlor, Latiz Qureshi, Mateen Zubairi and Michael Lalande

Respondents

decision

Adjudicator: Brian Eyolfson

Date: June 9, 2011

Citation Number: 2011 HRTO 1122

Indexed As: Musoni v. Logiteck Technology Ltd.

APPEARANCES

Bernard Musoni, Applicant ) Self-represented

Logitek Technology Ltd., Larry Detlor, ) Latiz Qureshi, Mateen Zubairi ) Reagan Ruslim, Counsel and Michael Lalande, Respondents )

INTRODUCTION

1The applicant filed an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on July 20, 2009, alleging discrimination in employment on the basis of record of offences.

2In his Application, the applicant indicates that he filed a Complaint against the organizational respondent with the Ontario Human Rights Commission (the “Commission”). At the time, he did not cite record of offences as a ground of discrimination in his Complaint. He submits that record of offences emerged as a factor upon receipt of the respondents’ reply to his Complaint. The applicant claims that he approached Commission staff to amend his Complaint to add record of offences as a ground, but was not able to because the Commission had already issued him an “opt out” letter to abandon his Complaint and file a transition Application with the Tribunal. He submits that the Tribunal “has as its rule under 53(3) and 53(5) not to amend a complaint that is continued”; therefore, he did not get an opportunity to cite record of offences and his transition Application proceeded without record of offences cited as a ground of discrimination.

3This Decision arises out of a hearing that was held to address a number of preliminary issues raised by the Application.

REQUEST FOR EARLY DISMISSAL

Previous Complaint

4In response to the Application, the respondents made a Request for Early Dismissal, submitting that the applicant filed a Complaint with the Commission based on the identical facts as this Application. Section 53(8) of the Code provides as follows:

No application, other than an application under subsection (3) or (5), may be made to the Tribunal if the subject-matter of the application is the same or substantially the same as the subject-matter of a complaint that was filed with the Commission under the old Part IV.

Res judicata, issue estoppel and abuse of process

5The respondents also submit that the applicant is attempting to re-litigate the same claims of discrimination, which were decided by the Tribunal in a Case Resolution Conference Decision, 2009 HRTO 236, and upheld on reconsideration, 2009 HRTO 590. The respondents submit that, as a result of the Tribunal dismissing the applicant’s transition Application, and refusing reconsideration, the present Application is res judicata, should be dismissed as an abuse of process, and the applicant is estopped from re-litigating the same issues.

Appropriately dealt with

6The respondents further submit that the Application should be dismissed in accordance with section 45.1 of the Code, which provides as follows:

The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the Application.

Record of offences

7The respondents submit that the applicant alleges discrimination on the basis of record of offences in relation to a peace bond, which does not create an offence and does not result in a conviction. Therefore, it cannot be a subject of the record of offences protection found in section 10 of the Code. The respondents also submit that the applicant previously submitted a copy of his record provided by the Canadian Police Information Centre to the Tribunal and it shows “no convictions”. The respondents submit that, since the applicant was never convicted of any offence, he could not have been discriminated against on the basis of record of offences.

8In his Response to the respondent’s Request for Early Dismissal, the applicant states that he believes his employer discriminated against him based on “false information of record of offence.” He submits that the fact that he showed that he had a peace bond record, not a record of offence, does not prove that there was no illegal discrimination. He submits that there is evidence to show that the respondents believed he had a record of offence, and harassed him and terminated his employment based on that wrong belief; however, the applicant does not indicate in his Response what that evidence is.

9“Record of offences” is specifically defined in section 10 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.

10In an Interim Decision in this matter, 2010 HRTO 1492, the Tribunal noted that it is not clear if the definition of “record of offences” applies to the facts of this Application and, therefore, if the Tribunal has jurisdiction over this Application. The Tribunal also noted that it is not clear if the applicant’s allegations, if accepted as true, could establish a prima facie case of discrimination based on record of offences.

DELAY

11The Tribunal also noted in its Interim Decision that it appears the last alleged incident of discrimination in the Application occurred on March 6, 2008, more than 16 months before the Application was filed. The Tribunal referred to section 34 of the Code which provides as follows:

(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under subsection 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

HEARING

12In the circumstances, the Tribunal determined that it was appropriate to hold a hearing to address the following preliminary issues raised by the Application:

(i) whether the Application is barred by virtue of section 53(8) of the Code;

(ii) whether the Application should be dismissed, in whole or in part, because another proceeding has appropriately dealt with the substance of the Application;

(iii) whether the Application should be dismissed based on the doctrines of res judicata, estoppel and/or abuse of process;

(iv) whether the applicant has a “record of offences” within the meaning of the Code, and is therefore within the jurisdiction of the Tribunal;

(v) whether or not the allegations in the Application, if accepted as true, could establish a prima facie case of discrimination based on the ground of record of offences within the meaning of the Code; and

(vi) whether or not the Application should be dismissed for delay within the meaning of section 34 of the Code, including whether or not the delay was incurred in good faith and whether or not substantial prejudice will result to any person affected by the delay.

ADDITIONAL ISSUE

13Prior to the hearing, the parties delivered to each other and filed with the Tribunal additional written materials. In their materials, the respondents also submit that the Application is barred pursuant to section 34(11)(a) of the Code, as the applicant commenced a civil action in which he claims that the organizational respondent dismissed him on the basis of “unverified allegations of record of offence” and the assumption that he had been convicted and not pardoned of an offence under federal law. Section 34(11)(a) of the Code provides as follows:

A person who believes that one of his or her rights under Part I has been infringed may not make an application under subsection (1) with respect to that right if,

(a) a civil proceeding has been commenced in a court in which the person is seeking an order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or …

14At the hearing, the parties agreed to make oral submissions with respect to this additional issue, and were given the opportunity to subsequently provide further submissions on this issue in writing, which they did.

RECORD OF OFFENCES

15The Tribunal only has the jurisdiction to adjudicate claims of discrimination brought under the Code. Section 5 of the Code prohibits discrimination in employment on a number of grounds. It states:

Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability.

16The drafters of the Code assigned a very specific meaning to “record of offences” in section 10. “Record of offences” means either a conviction for an offence in respect of which a pardon has been granted under the Criminal Records Act (Canada) and has not been revoked, or an offence in respect of any provincial enactment.

17In de Pelham v. Mytrak Health Systems, 2009 HRTO 172, the Tribunal determined that the Code did not apply to an applicant who was charged with a criminal offence, but did not have a criminal record. The Tribunal stated as follows, at paras. 6-10:

Mr. de Pelham argues that notwithstanding the definition provided in the Code, I should give “record of offences” a broader meaning, to include situations in which an individual has been charged with a criminal offence. He puts forward several reasons for this position. He argues that it does not make sense, and would be unfair to allow employers to discriminate against persons merely charged with an offence, since it is a fundamental principle of law that an individual is “innocent until proven guilty.” He says that the Legislature could not have intended that a person convicted of a criminal offence would have greater protection than a person only charged. In this regard he makes reference to the legislative debates preceding the 1981 amendments to the Code which added record of offences as a prohibited ground of discrimination.

Mr. de Pelham also argues that the term “record of offences” can and should be read to include any official record of interaction with the law, including a record of criminal accusations.

Finally, he relies on a series of British of Columbia Human Rights Tribunal cases which appear to extend the definition of record of offences to include persons charged, but not convicted of an offence. He notes that the British Columbia Human Rights Code, R.S.B.C. 1996, c. 210, while not identical to the Ontario Code, is similar in that it also refers to “a person convicted of a criminal offence”. Notwithstanding, the British Columbia Tribunal has found that the protection is available to persons merely charged with an offence. (See e.g.: Clement v. Jackson (2006), 2006 BCHRT 411, 57 C.H.R.R. D/507).

Although I appreciate the applicant’s arguments in this case, his position cannot succeed. 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.), [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.

Neither can I accept Mr. de Pelham’s argument that the Legislature could not have intended that the Code protect only individuals convicted of an offence, and not cover those merely charged. First, it is a basic principle of statutory interpretation that words of a statute should be read in their ordinary sense, consistent with the scheme and object of the Act; R. v. Ulybel Enterprises Ltd., 2001 SCC 56, [2001] 2 S.C.R. 867 at para. 28. Second, 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. Moreover, a review of human rights legislation across the country reveals a wide variation in the extent to which interactions with the criminal justice system are considered a prohibited ground of discrimination. For example Nova Scotia, New Brunswick, Newfoundland, Manitoba, Saskatchewan and Alberta provide no protection whatsoever for this form of discrimination. Quebec provides that an employer may not discriminate on the grounds that a person has been convicted of an offence if the offence was unrelated to the employment or intended employment, or the person has obtained a pardon. The Yukon Human Rights Act, R.S.Y. 2002, c. 116 does prohibit discrimination on the basis that an individual has a criminal record or has been charged with an offence. Thus, it is clear that different Legislatures across Canada have made different legislative choices. The Tribunal must respect those legislative choices.

18In Jamal v. First Student Canada, 2009 HRTO 2083, the applicant submitted that the respondent told him that it would not employ him because he had been charged with a series of criminal offences. One of the charges was withdrawn and the other was resolved by a peace bond. The applicant was never convicted of any criminal offence and therefore did not receive a pardon. The applicant in Jamal submitted that the respondent improperly believed and concluded that he had been convicted of a criminal offence. In Jamal, the Tribunal held that the applicant did not meet the particular definition of “record of offences” under the Code. In so finding, the Tribunal noted that the applicant did not allege he was discriminated against because he was convicted of an offence for which he had been pardoned, or an offence under any provincial enactment.

19In the present case, the applicant alleges in his Application that “record of offences emerges upon receipt of the respondent’s reply” to his initial Complaint. He also alleges that, throughout the Tribunal process, “record of offences (peace bond) continued to emerge as a factor in the termination of [his] employment.” However, the applicant has not explained how record of offences emerges as a ground in relation to any of the respondents’ materials or throughout the Tribunal process.

20The applicant also alleges in his Application that the respondents discovered that he was under a peace bond and concluded that he had “a conviction for an offence in respect of which a pardon has not been granted under the Criminal Records Act (Canada) and proceeded to terminate [his] employment.” He alleges that his employment was terminated based on the assumption that he had been “convicted and not pardoned for an offence under a federal law, hence the peace bond.” He further alleges that, soon after discovering his peace bond, the organizational respondent terminated his employment without taking steps to determine if the peace bond was a provincial offence and, if so, prohibited under the Code.

21In their Request for Early Dismissal, the respondents submit that a peace bond does not result in a conviction and, since the applicant was never convicted of any offence, he could not have been discriminated against on the basis of record of offences.

22Although the applicant submits in his Response to the respondents’ Request that there is evidence to show that the respondents believed he had a record of offence, and harassed him and terminated his employment based on that wrong belief, the applicant has not referred to any such evidence in either his written materials or his oral submissions. Based on the applicant’s materials, it appears that he may have told the respondents that he entered a peace bond. For example, in an attachment to his written submissions, the applicant refers to his “peace bond situation” and states that he explained his “situation” to the individual respondent, Larry Detlor, to make sure he was well-informed. However, there is nothing in either the written materials or the parties’ oral submissions that would suggest that the respondents mistakenly believed the applicant had been convicted of an offence, as the applicant baldly asserts.

23Even if the respondents had mistakenly believed the applicant was convicted of an offence, it is not clear if “record of offences” would apply considering the particular definition of that ground in the Code. While the applicant entered a peace bond, it is clear that he has not been convicted of either a provincial offence or a federal offence for which a pardon has been granted. In the circumstances, I find that the applicant does not meet the particular definition of “record of offences” under the Code and, as such, the Application is not within the jurisdiction of the Tribunal. The Application is therefore dismissed.

REMAINING PRELIMINARY ISSUES

24The Tribunal also notes that, although there is no specific reference to the Code in the applicant’s civil action, the factual claims made in the civil action are the same as the factual claims set out in the Application, and refer to “record of offence”. However, in light of the above finding that the Tribunal does not have jurisdiction over this Application, I need not determine whether or not the Application is also barred, pursuant to section 34(11)(a) of the Code, or any of the other remaining preliminary issues that have been raised.

ORDER

25The Application is dismissed.