James Gardner v. Accounts Recovery Corporation, 2014 HRTO 1755

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

James Gardner

Applicant

-and-

Accounts Recovery Corporation

Respondent

DECISION

Adjudicator: David Muir

Date: December 5, 2014

Citation: 2014 HRTO 1755

Indexed as: Gardner v. Accounts Recovery Corporation

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of record of offences.

2In a Case Assessment Direction issued on November 12, 2014, the applicant was directed to clarify the basis for his claim that he experienced discrimination based on the ground of “record of offences” which is defined in 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(a) an offence in respect of which a pardon has been granted under the Criminal Records Act (Canada) and has not been revoked, or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; (“casier judiciaire”)

3The applicant filed submissions in response to the Directions above. The applicant argues that at the material time he had been convicted of a criminal offence and provided documentary support for this assertion. The applicant argued that when the fact of his conviction became known to the respondent he was summarily dismissed. The applicant argued that in de Pelham v. Mytrak Health Systems Inc. 2009 HRTO 172 the Tribunal confirmed that the language of the Code is “clear and unambiguous and provides that ‘record of offences’ covers only persons convicted of an offence.”

4The Application is dismissed because the Tribunal has no jurisdiction to consider it. I agree with the applicant that the definition of record of offences in the Code is clear and unambiguous and is as set out above. However I note that the issue in de Pelham above, was whether someone charged with an offence, but not convicted, was protected by the Code. The conclusion was that a person charged, but not convicted, was not protected from discrimination under the Code. The Decision did not consider the last phrase of the definition in paragraph 2(a) above. I do accept and adopt the Tribunal’s reasons with respect to the definitive nature and plain meaning of the Code definition. See also McKenzie v. Ontario (Government Services) 2010 HRTO 1186. Accordingly, in the absence of any indication that the applicant has been granted a pardon under the Criminal Records Act as required by the Code, the Tribunal lacks jurisdiction to consider this case.

5For these reasons the Application is dismissed..