Employers face a complex situation when attempting to respect a “record of offences” as a ground for human rights protection. Two recent decisions from the Human Rights Tribunal of Ontario provide useful guidance in this regard.
Section 5 of the Ontario Human Rights Code1 prohibits discrimination in employment for, among other grounds, “record of offences.” Section 10 of the Code provides the following definition:
“record of offences” means 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- an offence in respect of which a pardon has been granted under the Criminal Records Act (Canada) and has not been revoked; or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.
The Criminal Records Act2 distinguishes between pardons and discharges and this is a common source of confusion.
The Criminal Records Act allows convicted persons to apply to the National Parole Board for a pardon in respect of a particular offence, and if granted, the conviction will be expunged entirely from that person’s record. The purpose of a pardon is to restore the person to the same social status he or she would have had but for the conviction. In contrast, a discharge is given in lieu of conviction, usually for minor offences, and remains in a person’s record, albeit on a confidential basis. A discharge may show up on a background check depending on how much time has lapsed since the offence.
Therefore, with respect to criminal charges, the Code only protects persons who have been convicted of a provincial offence or a pardoned criminal offence. Those who have been charged but not convicted for whatever reason, or who have not received a pardon, receive no protection under the Code. The following two recent decisions of the Human Rights Tribunal of Ontario exemplify this distinction.
In Dubé v. CTS Canadian Career College,3 the Applicant was rejected for a job as an Addictions Interventions Instructor at a career college after the employer learned of the Applicant’s convictions in the 1980s for armed robbery and manslaughter. The Applicant had overcome an addiction to drugs and alcohol, wrote a book about his experience and gave motivational speeches about his life. In 2006, he received a pardon for these offences.
The Applicant did not disclose his criminal record in the interview but did reference his previous addictions, thinking it would make him more competitive for the job. The employer offered him the position, but the next day learned of the Applicant’s past convictions and subsequently revoked the offer, citing a need to protect the College’s reputation and the Applicant’s dishonesty in failing to disclose his criminal conviction. The Applicant filed a human rights application.
The Vice-Chair held that because a pardon had been granted, the Applicant was under no obligation to disclose his criminal history. Consequently, the decision not to hire the Applicant because of his conviction or his failure to disclose his criminal history was discriminatory. Further, numerous admissions by College staff evidenced a systemic unfamiliarity with Code principles with respect to hiring. As a result, the Applicant was awarded $15,000 for violation of Code rights and $24,375 in lost wages. The employer was also ordered to correct its hiring practices.
CTS contrasts with de Pelham v. Mytrak Health Systems,4 which involved allegations of “record of offences” discrimination against a number of parties with respect to past and pending criminal charges.
The Applicant alleged he was unlawfully terminated from Mytrak once his pending criminal charges were discovered. The Applicant gained new employment with Ricoh, but was again terminated shortly thereafter once the criminal charges came to light. Human rights complaints were made against both Mytrak and Ricoh, as well as the City of Mississauga, whose hiring process required to the Applicant to submit to a criminal background check.
The crux of the Applicant’s argument was that the Ontario Human Rights Tribunal ought to broaden the definition of “record of offences” beyond pardoned convictions to include pending charges as well. The Applicant argued that allowing employers to terminate employees only charged with offences violated the fundamental principle of being innocent until proven guilty, and created a counter-intuitive situation where persons convicted of criminal offences have greater Code protection than those who have merely been charged and pardoned. Further, the Applicant submitted that Ontario’s position was out of line with other jurisdictions, such as British Columbia, where human rights protection is granted for criminal charges if the charges are not logically connected to the employment.
The Tribunal rejected all these arguments, noting that, while not insensitive to the Applicant’s plight, the Code’s definition of “record of offences” was very specific and worded differently from other provinces. Simply put, the Tribunal had no jurisdiction to hear a complaint based on “record of offences” that did not concern a provincial offence or a pardoned criminal offence. As such, the complaint was dismissed.
Ontario employers mindful of this important distinction are therefore free to exercise management rights with respect to alleged criminal conduct without fear of human rights liability, so long as it does not involve a provincial offence conviction or a pardoned criminal conviction. This means Ontario employers may ask about unpardoned criminal convictions or charges during the hiring process and may also require that successful candidates submit to a background check.