Under the Ontario Human Rights Code, it is not discriminatory for an employer to take action against an employee who has been found guilty of a criminal offence for which a pardon has not been granted.
Case law has concluded that it would not be discriminatory within the meaning of the Code to take employment action against an individual who has merely been charged with a criminal offence. There might be other consequences, but the Code protection would likely not assist.
The leading Tribunal decision is de Pelham v. Mytrak Health Systems.
Most recently, the Tribunal considered the issue in Aitchison v. Mid Canada Fiberglass and stated that:
The applicant does not allege in his Application that he was discriminated against by either respondent because he had been convicted of an offence for which he had been pardoned, or an offence under any provincial enactment. Instead, what he alleges is that the respondents improperly fired him immediately after he was charged. The definition of “record of offences” does not apply to the facts of this Application.
The Tribunal does not have a general power to evaluate employment relationships or dismissals, but hears only applications that allege violations of the Code. Accordingly, the Tribunal has no jurisdiction over this Application.
Other jurisdictions, however, have different legislative requirements and the Ontario case is probably of limited application as it is based on the specific language in the Code.
