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Record of Offences? Ha! What Record of Offences?

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On August 7, 2014 the Human Rights Tribunal of Ontario issued its decision in the case of Hulbert v. Cott Beverages. This was an application by Mr. Hulbert where he alleged that Cott Beverages discriminated against him contrary to the Human Rights Code (“the Code”).  Specifically he alleged that his employer discriminated against him on the basis of the prohibited ground of record of offences and association with a person identified by a ground protected under the Code.

In his Application,  Mr. Hulbert described an incident that occurred in his workplace on September 11, 2007.  He claimed that some of his co-workers insulted him and made verbal threats against him.  Mr. Hulbert ended up throwing his tea on the ground. He claimed that one of his co-workers then charged at him with clenched fists looking for a fight. Mr. Hulbert got in his car and stayed in it for over two hours. He claimed he did not go into work for his shift because he was so upset. Mr. Hulbert stated that he tried to speak to the human resources’ representative for Cott Beverages but they were not responsive.  According to Mr. Hulbert, the human resources representative avoided his calls.  Mr. Hulbert alleged that Cott Beverages called the police about the incident without hearing his side of the story. The police laid charges against the applicant but the charges were eventually dropped.

Following the incident in 2007, Mr. Hulbert went on Short Term Disability and Long Term Disability leaves. Cott Beverages terminated his employment on April 4, 2012. The Ontario Human Rights Tribunal found that Mr. Hulbert’s application was untimely, but also commented that even if it were to accept Mr. Hulbert’s allegations as true and provable, he provided no information that could establish a link to the grounds of discrimination set out in his Application or any other ground protected under the Code.

The Ontario Human Rights Tribunal commented that the ground of record of offences is widely misunderstood by individuals who file complaints. The ground “record of offences” does not simply refer to a history of incidents for which a person was disciplined or charged with an offence. The ground is defined in s.10 of the Code to mean:

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.

In this case, Mr. Hulbert confirmed that he had never been convicted of either a federal or a provincial offence. Therefore the Tribunal found that there was no reasonable prospect that he would be able to establish that any actions taken by his ex-employer amounted to discrimination based on record of offences.

When asked to clarify why he alleged that he was discriminated against because of association with a person identified by a Code ground, Mr. Hulbert said that he believed that his ex-employer discriminated against him due to the altercation that occurred between him and a co-worker in 2007. He provided  no information that would link this incident to any Code ground that applied to him or a person with whom he associated.

Vice Chair Jo-Anne Pickel indicated: “I understand that the applicant believes that the respondent did not have good reasons for his termination and that he believes that his termination may have been linked to the incident in 2007. However, this in itself, does not bring his Application within this Tribunal’s jurisdiction”.

As employer counsel on matters such as this, it never ceases to amaze me as to how creative the attempts by terminated employees are to challenge the reasons for their dismissal. Clearly, the allegations here were baseless. Nonetheless, Cott Beverages was required to defend itself in the human rights application made by Mr. Hulbert.

In termination situations, we often advise that the basis for the termination be recorded by the employer in writing both prior to the termination (where the reasons pre-date the termination) or, very clearly at the time of termination. The basis for such recording in a non-just cause termination is so that the employer can submit the documentation into evidence in order to defend itself against claims of discrimination by pointing to the real, non-discriminatory reason for the termination.

Patrizia Piccolo