Can an employer dismiss (or refuse to hire) a person who has been charged with a criminal offense? That is the issue the Ontario Human Rights Tribunal will soon decide in a case called Mark David de Pelham v. Mytrak Health Systems Inc. and Reed Hanoun. The Tribunal has decided to deal with that issue as a preliminary jurisdictional question in the case in which the applicant complains he was denied employment and/or dismissed after the employer learned he had been criminally charged. He is alleging that this is discrimination on the basis of ‘record of offense’ in the Human Rights Code of Ontario.
“Record of offense” has a defined meaning in the Code:
“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(a) an offence in respect of which a pardon has been granted under the Criminal Records Act (Canada) and has not been revoked, or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
This language seems pretty clear in that it does not, on its face, apply where a person has been charged with a crime and not yet convicted. So to find that a charge alone is included in ‘record of offense’, the Tribunal would have to apply some creative, purposive reading. Of course, we are only dealing with the Human Rights angle here. The question of whether a non-union employer can dismiss an employee who is charged with a crime, without giving them reasonable notice first, is an entirely different question. And, in a unionized environment, it would be unusual for a charge alone to amount to “just cause” for dismissal under a collective agreement.
But what do you think about the narrow definition of ‘record of offense’ in the Human Rights Code? Do you think that an employer should be able to discriminate against a person (a job applicant or an employee) because they have been charged with an offense? Keep in mind that the person may be completely innocent and the charges may later be dropped or the person acquitted unconditionally after a trial. Is permitting employers to discriminate on the basis of a charge only consistent with the philosophy that people should be presumed innocent until proven guilty?