Court File and Parties
CITATION: De Pelham v. Hilti Canada Corporation, 2012 ONSC 5956
DIVISIONAL COURT FILE NO.: 547/11
DATE: 20121010
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
LAX, HAMBLY AND LEDERER JJ.
B E T W E E N :
MARK DAVID DE PELHAM Applicant
– and –
HILTI CANADA CORPORATION and THE HUMAN RIGHTS TRIBUNAL FOR ONTARIO Respondents
Mark David De Pelham, Self Represented
Brian A. Blumenthal, for the Respondent, Human Rights Tribunal for Ontario
HEARD: October 10, 2012
Oral Reasons for Judgment
LEDERER J. (orally)
[1] This is an application for judicial review of the Human Rights Tribunal of Ontario. Michael David De Pelham was employed by Hilti Canada Corporation from May 14, 2010, as a bilingual inside sales representative. The Peel police arrested De Pelham on February 10, 2011. The police held him in custody. They released him on February 16, 2011. They charged him with a criminal offence. Hilti did not permit De Pelham to return to work. On April 5, 2011, he filed an application with the Tribunal in which he alleged discrimination by Hilti. De Pelham took the position that Hilti, by refusing to permit him to return to work, had discriminated against him because he was a person charged with a criminal offence. The Tribunal dismissed the application on the grounds that it lacked the jurisdiction to grant De Pelham a remedy.
[2] As we understand it, the substance of the argument, as heard by the Tribunal, was that a person charged with an offence was a person with a disability, as that term is used in s. 5(1) of the Human Rights Code. The Tribunal did not accept the submission. The term “disability” is defined by the Code. It says:
“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, colitis, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical coordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment or physical reliance on a guide dog or other animal or in 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.
[3] It is not difficult to see why the Tribunal found as it did. This definition deals exclusively with physical and mental disabilities. It does not refer to what the applicant called “socio-political limitations”. In order to accept the submission of the applicant, we would have to find that the decision of the Tribunal was unreasonable, (see: Shaw v. Phipps (2012), ONCA 155). The Tribunal found, at paragraph 11 of its decision, that the Legislature “could have, but did not, protect individuals who are charged with criminal offences from deferential 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. We 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. It is this, that led the Tribunal to conclude that it had no jurisdiction over the facts as alleged in the application. Based on the record before the Tribunal, this decision falls clearly within the range of “possible acceptable outcomes” as referred to in Dunsmuir v. New Brunswick (2008), SCC 9 at paragraph 47.
[4] Before us, the appellant raised what appears to be a new issue, a constitutional question. He submitted that s. 5(1) of the Code should be struck down as being contrary to s. 15(1) of the Charter because it does not deal with discrimination of those who have been charged with an offence.
[5] This Court is able to decide constitutional issues that are properly before it. However, the applicant did not raise the constitutional challenge he makes in this application for judicial review before the Tribunal. The applicant mentioned possible violations of the Charter at various points in submissions to the Tribunal, but he did not challenge the validity of s. 5(1) of the Code nor did he file a notice of constitutional question with the Tribunal.
[6] The applicant is treating the Divisional Court as a court of first instance for his constitutional challenge. The case law is clear that parties are, generally, prohibited from raising new issues under judicial review. The reason for this general prohibition is that raising new issues on an appeal or judicial review may cause prejudice to the other side due to the lack of opportunity to respond and adduce evidence at trial, or a hearing, as well as the lack of a sufficient record upon which to make findings of fact necessary to properly rule on the new issue (see: R. v. Brown, 1993 114 (SCC), [1993] 2 SCR 918 at p.923 L’Heureux-Dubé J. dissenting; Singh v. Workplace Safety and Insurance Appeals Tribunal (2008), 2008 2606 (ON SCDC), 232 OAC 280; and McKinney v. Metro Ontario Inc. (2011), ONSC 3601 (Divisional Court).
[7] In order to overcome the presumption that the constitutional issue may not be heard under judicial review, the applicant must demonstrate that the interests of justice require an exception to the normal and accepted course of litigation (see: Perez (Litigation Guardian) v. Salvation Army of Canada) (1998), 1998 7197 (ON CA), 42 O.R. (3d) 229 CA at paragraph 11. The applicant has not demonstrated that the interests of justice require such an exception to be made.
[8] There is little evidence upon which the Court could make a determination on the constitutional issue. In our view, these are not circumstances which commend departure from the normal, accepted course of litigation. Therefore, we will not decide the constitutional question. For these reasons, the application is dismissed. The respondent is not asking for costs.
[9] No costs are sought or awarded.
LAX J..
HAMBLY J.
LEDERER J.
DATE OF REASONS FOR JUDGMENT: October 10, 2012
DATE OF RELEASE: November 9, 2012
CITATION: De Pelham v. Hilti Canada Corporation, 2012 ONSC 5956
DIVISIONAL COURT FILE NO.: 547/11
DATE: 20121010
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
LAX, HAMBLY and LEDERER JJ.
B E T W E E N :
MARK DAVID DE PELHAM Applicant
– and –
HILTI CANADA CORPORATION and THE HUMAN RIGHTS TRIBUNAL OF ONTARIO Respondents
ORAL REASONS FOR JUDGMENT
LEDERER J.
DATE OF REASONS FOR JUDGMENT: October 10, 2012
DATE OF RELEASE: November 9, 2012