Johnson v. Toyota Motor Manufacturing Canada, 2013 HRTO 1842

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

David Johnson

Applicant

-and-

Toyota Motor Manufacturing Canada

Respondent

DECISION

Adjudicator: David Muir

Date: November 1, 2013

Citation: 2013 HRTO 1842

Indexed as: Johnson v. Toyota Motor Manufacturing Canada

WRITTEN SUBMISSIONS

David Johnson, Applicant

Self-represented

1This Application alleges discrimination in employment on the grounds of record of offences, contrary to Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").

2In his Application the applicant alleges that his application for employment was screened out because he answere yes, to the question have you been convicted of a criminal offence for which a pardon has not been granted. The applicant contends that his record of offence has nothing to do with his ability to do the job in question. He believes that the respondent has never hired an applicant who has a record of offence.

3On October 7, 2013 the Tribunal issued a Notice of Intent to Dismiss this application because it appearred that it may be outside of the Tribunal's jurisdiction. The letter explained:

you allege discrimination based on the ground of "record of offences" but have failed to describe how the respondent's behaviour was related to discrimination on the basis of 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for an offence in respect of which a pardon has been granted under the Criminal Records Act (Canada) and has not been revoked, or an offence in respect of any provincial enactment (s. 10 (e)). See for example Gravino v. P.R. Maintenance, 2009 HRTO 516; de Pelham v. Mytrak Health Systems, 2009 HRTO 172.

4The applicant was given an opportunity to make submissions in response to the NOID and has done so. The applicant argues that he is not claiming that it is illegal to ask a prospective employee if they have a record of offence for which a pardon has not been granted, but, the applicant, states that it is illegal to discriminate against the prospective employee if they do answer. The applicant argues that the Code requires that an employer meet the applicant for work and make a determination about whether the record truly has implications for the person's ability to do the job in question.

5At this preliminary stage before the Application has been delivered to the respondent and a Response (Form 2) has been filed, the Tribunal will only dismiss an Application where it is plain and obvious that it is outside the Tribunal's jurisdiction. However in my view it is plain and abvious that the allegation of the applicant is outside of the Tribunal's jurisdiction.

6The 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.

7In this case the applicant does not allege that he was convicted of a criminal offence, for which he subsequently received a pardon, which is the only basis on which the Tribunal has jurisdiction with respect to allegations relating to such offences. On the contrary the applicant appears to have a record of offence for which a pardon has not been granted and when asked by the respondent affirmed that he had. It is not contrary to the Code for an employer to ask a job seeker if they have such a record or to not offer them employment if the answer the question is yes. The applicant relied on material from the Ontario Human Rights Commission website but I note that in this material it is made clear that the Code only protects those with a criminal record for which a pardon has been granted. That is not the case here.

8For these reasons this Application is dismissed.