In Penner v. Fort Garry Services Inc. (“Penner”), the Manitoba Human Rights Commission Board of Adjudication (the “Board”) considered the question of whether discrimination based on a previous criminal record was prohibited by The Human Rights Code (Manitoba) (the “Manitoba Code”).
The Complainant, a 51-year-old man, applied for a caretaker job at a seniors’ residence. During his job interview, he advised that he had two previous convictions for impaired driving – the result of previous issues with alcohol addiction, which were no longer of concern for him. The manager told the Complainant that these convictions would not be a concern, as the job did not require him to have a driver’s licence. He was given the position, and advised that he would be on probation for a period of six months, during which time he was to obtain and provide a satisfactory criminal record check.
The manager indicated that a criminal record check was necessary, as the Complainant was going to be provided with keys to the personal suites of the seniors at the residence. Until a satisfactory criminal record check was produced, the Complainant was not going to be able to do the part of his job that involved entering the residents’ suites, but rather, would only be fulfilling part of the duties of his new position. Nonetheless, he was provided with his full wages.
Shortly after being hired, the Complainant requested a criminal record check from the police. In response, he received a report indicating that he had a record with the city police, as well as at the national repository. Had the Complainant had no record, this report would have indicated that no record existed. The Complainant advised the manager of these results, and that it would take 150 days to obtain the record from the national repository. He asked for time to get this record. On December 7 the manager gave the Complainant until December 31 to get the record. The Complainant asked for additional time, and was told by the manager that she would take the matter up with the residence’s board. On December 14, before the Complainant received his record, he was advised that he was being dismissed due to poor performance.
The Complainant asserted that he had been discriminated against by his employer on the basis of his criminal record because he was required to produce a transcript of his record within a deadline that was impossible to meet, and because he was dismissed before the deadline had even expired. The manager states that the Complainant was dismissed because of inadequate performance of his assigned duties.
The Board began by considering whether discrimination on the basis of a criminal record was covered under the Manitoba Code. Criminal record is not listed as a prohibited ground of discrimination under the Manitoba Code. In many provinces and federally, there is only protection for pardoned criminal offences, or non-relevant provincial offences.1
The Board, in Penner, stated that for the purposes of that case, they were prepared to accept that having a criminal record might be considered an analogous ground, and went on to consider whether there had been discrimination on that basis.
In response to the claim that the Complainant’s dismissal prior to the expiry of the deadline was discriminatory, the Board found no discrimination. The Complainant was found to have been terminated solely based on his work performance, and therefore, this treatment by his employer was based only on personal merit, not on his membership in the class of individuals who have criminal records.
With respect to his claim that the deadline imposed to provide a criminal record was discriminatory, the Board found that there was an arguable case. Based on the evidence, it appeared that the Complainant would have been unable, because he had a criminal record, to meet the deadline imposed. Individuals without a criminal record, on the other hand, could have easily met the deadline by providing the initial report stating that no record exists – there would have been no need to send off for a further transcript.
Having found that the Complainant had an arguable case of discrimination, the burden shifted to the employer to show that the provision of a satisfactory criminal record check was a bona fide occupational requirement. If the employer could show that this was so, there would be no discrimination, and no remedy would be available to the Complainant under the Code.
An employer can justify the application of a different standard for a different class of individuals if it is done for the purpose of fulfilling a bona fide occupational requirement. An employer can justify the varying standard by showing: (1) that it was adopted for a purpose which is rationally connected to the performance of the job; (2) that it was adopted in an honest and good faith belief that it will be necessary in order to fulfill a legitimate work-related purpose; and (3) that it is reasonably necessary to accomplish that work-related purpose and it cannot accommodate the Complainant without imposing undue hardship on the employer.
In Penner, the Board found that the requirement to produce a transcript met all components of the test. The residents of the home were elderly, vulnerable individuals. The employer had the right to insist on reviewing the criminal record of any individual who was to be given access to their homes.
With respect to the third part of the test, the question of whether the employer had a duty to accommodate the Complainant in this case is of particular interest. The Manitoba Code imposes a duty to make reasonable accommodations for the special needs of individuals when those special needs arise due to membership in one of the enumerated classes of individuals. Despite the Board’s earlier acceptance that a criminal record constituted an analogous ground of prohibited discrimination under the Manitoba Code, the Board determined that there was no duty on the employer to accommodate the Complainant’s need for additional time to obtain the criminal record transcript because the Manitoba Code only extended the duty to accommodate to specifically enumerated grounds of discrimination, of which persons with criminal records was not included.
Penner was a case where an arguable case of discrimination was found on the simple basis of the complainant having been required to produce a transcript of his criminal record within an impossible time frame.
In such cases, an employer in Manitoba and/or a jurisdiction with similar legislation will have to show how it is a bona fide occupational requirement that the person not have the criminal record in question, given the particular circumstances and responsibilities of the position at issue. To do so, the employer will be called upon to show how the behaviour that is the subject of the conviction could, if repeated, pose a threat to its ability to carry on its business safely and efficiently. To this end, the employer may have to consider the circumstances of the particular offence, the relationship between the offence and the position with the employer, the time elapsed since the conviction, what has happened since the offence occurred, and whether the individual has had a tendency to repeat this behaviour. The onus will be on the employer, in Manitoba and provinces with similar legislation, to establish that the existence of the criminal offence constitutes a reasonable disqualification for employment in a particular position.
1 The Ontario Human Rights Code (R.S.O. 1990, c. H-19) does prohibit discrimination in employment based on a ‘record of offences’. This is defined as a conviction for an offence in respect of which a pardon has been granted and has not been revoked, or an offence under any provincial enactment. There is no mention of a criminal record for offences which have not been pardoned.
The Canadian Human Rights Act (R.S.C. 1985, c. H-6), similarly, prohibits discrimination based on a conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered, but does not mention a criminal record which stands, unpardoned.
Given that the case discussed speaks only to convictions which would appear on a criminal record check, unpardoned, these portions of the Canadian and Ontario human rights legislation do not inhibit the applicability of the principles it sets forth.
A number of provinces (Nova Scotia, New Brunswick, Newfoundland, Saskatchewan and Alberta) do not even contain a provision in their respective human rights legislation prohibiting discrimination on the basis of criminal record convictions that have been pardoned like the Ontario and Federal legislation provides.
The Yukon’s Human Rights Act (R.S.Y. 2002, c. 116), on the other hand, does provide that having “criminal charges or [a] criminal record” is a prohibited ground of discrimination.
As well, British Columbia’s Human Rights Code (R.S.B.C. 1996, c. 210) prohibits discrimination regarding employment terms or conditions on the basis of a person having been convicted of a criminal or summary offence that is unrelated to the employment or intended employment of that person.