Does the Ontario Human Rights Code ("OHRC") protect employees charged with a criminal offence? The answer is "no" based on a series of decisions by the Ontario Human Rights Tribunal ("OHRT") over the last year.
Ontario Human Rights Code
The OHRC prohibits discrimination in employment on the basis of an employee's "record of offences". The OHRC states that "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(a) an offence in respect of which a pardon has been granted under the Criminal Records Act (Canada) and has not been revoked, or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.
Decision in de Pelham v. Mytrak Health Systems Inc.
In a February 2009 decision, de Pelham v. Mytrak Health Systems Inc. 2009 HRTO 172 (CanLII), the chair of the OHRT ruled that the "record of offences" provisions do not encompass criminal charges. Specifically, he stated: read more »
Supreme Court of Canada clarifies when duty to mitigate requires returning to work with same employer
In Evans v. Teamsters Local Union No. 31, 2008 SCC 20, which involved a long-serving business agent of the Teamsters Local Union No. 31, the Supreme Court of Canada clarified that there is no principled reason to distinguish between wrongful dismissal and constructive dismissal situations when evaluating the employee's duty to mitigate his or her damages.
Although in some instances the relationship between the employee and the employer will be less damaged where constructive rather than wrongful dismissal has occurred, this will not always be the case. The nature of the employee/employer relationship will need to be assessed on a case by case basis when evaluating the reasonableness of the employee's mitigation efforts.
Under both scenarios, it will be necessary in some circumstances for the dismissed employee to mitigate his or her damages by returning to work for the same employer.
As further set out in the case headnote: read more »
Effective December 12, 2006, mandatory retirement will no longer be generally permissible in Ontario, (as a result of amendments to the Ontario Human Rights Code). Employers will, however, still be allowed to enforce mandatory retirement polices if they can show that being younger than 65 (or another designated age) is a bona fide occupational requirement.
As reported in the media on December 2, 2006, Premier Campbell has announced that mandatory retirement in BC will also soon be abolished. Specifically, it is expected that the BC Human Rights Code will be amended in Spring 2007, with the result being that mandatory retirement policies will not be generally permissible in this province.
Similarly, on November 6, 2006 the Saskatchewan Government introduced Bill 9, which will amend the Saskatchewan Human Rights Code, with the result that mandatory retirement policies will not be generally permissible in that province if Bill 9 is enacted. However, the amendments would not come into force for one year after Royal Assent.
Mandatory retirement is already not generally permissible in Alberta, Manitoba, Quebec, PEI, Yukon, the NWT and Nunavut.