John Rolph v. Home Depot of Canada Inc., 2012 HRTO 624

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

John Rolph

Applicant

-and-

Home Depot of Canada Inc., Jessica Basken and Scott Macey

Respondents

DECISION

Adjudicator: Naomi Overend

Date: March 26, 2012

Citation: 2012 HRTO 624

Indexed as: Rolph v. Home Depot of Canada Inc.

WRITTEN SUBMISSIONS

John Rolph, Applicant ) Michael Phillips, Paralegal ) ) Home Depot of Canada Inc. ) and Jessica Basken, Respondents ) Jonathan Dye, Counsel )

1This Decision addresses whether the Tribunal has jurisdiction to deal with this Application, made under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), which alleges discrimination in employment on the basis of “record of offences” and reprisal.

2The Application indicates that the applicant was fired after a person with whom he was involved in a civil dispute (the respondent Scott Macey) threatened to tell his employer that he had been convicted of a criminal offence. He alleges that his employment with the respondent, Home Depot, was terminated for no reason and, thereafter, he was unable to secure work at another Home Depot.

3In their Response the respondents, Home Depot and Jessica Basken, submit that the Application is outside the Tribunal’s jurisdiction as the applicant does not allege discrimination on the basis of record of offences or reprisal as those terms are defined in the Code. The applicant was directed to the jurisdictional issues when their Response was served on him, and made further submissions when he filed his Reply.

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(a) an offence in respect of which a pardon has been granted under the Criminal Records Act (Canada) and has not been revoked; or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

[Emphasis added]

5The ground “record of offences” does not include all persons who have been convicted of a criminal offence, but rather only provides protection to those who, subsequent to that conviction, have received a pardon which has not been revoked. Given that the applicant has not been pardoned, the definition of “record of offences” does not apply to the facts of this Application.

6The applicant submits that the respondents “waived” their right to rely on the definition in the Code because he had made them aware of his lack of pardon at the time he was hired. However, respondents cannot by their actions confer jurisdiction on the Tribunal where no such jurisdiction is found in the Code.

7With respect to reprisal, section 8 of the Code 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.

8There is nothing in the Application that alleges that the respondents’ actions took place in response to the applicant engaging in any of the following activities:

• claiming or enforcing a right under the Code;

• instituting or participating in proceedings under the Code:, or

• refusing to infringe the right of another person.

9The Application fails to allege reprisal, as that term is defined in the Code. Accordingly, the Tribunal has no jurisdiction over this Application and the Application is, therefore, dismissed.