Under the Ontario Human Rights Code, it is generally illegal for an employer to fire you solely because of a “record of offences.” This protection specifically covers federal convictions where a pardon (record suspension) has been granted, as well as provincial offences like traffic tickets.
Having a criminal record can feel like a lifelong shadow, but the Canadian justice system believes in rehabilitation. 🔍 If you have gone through the lengthy process of obtaining a formal pardon-now legally referred to as a Record Suspension by the Parole Board of Canada-you are afforded specific protections in the workplace. Many employees in cities like Hamilton, London, and Toronto panic when their employer suddenly implements mandatory background checks, fearing they will be fired for past mistakes.
It is crucial to understand the strict difference between an active, unpardoned conviction and a “record of offences” as defined by Ontario law. 👨⚖️ While employers generally have the right to terminate employees for active, unpardoned indictable offences or summary convictions that directly impact their job, they cross a serious legal line if they fire someone for a pardoned offence. Taking action promptly and consulting a knowledgeable law firm can save your career and hold discriminatory employers accountable.
Step-by-Step Process: Defending Your Job in Ontario
If you suspect you are being targeted or have been fired due to a background check revealing a pardoned conviction, you must move quickly. 📝 Establishing a clear paper trail is the cornerstone of any human rights claim.
Step 1: Secure Your Termination in Writing
If your employer attempts to fire you verbally, insist on receiving a formal termination letter. 📄 Employers will rarely admit in writing that they are firing you for a pardoned criminal record, as this is illegal. They may cite “restructuring” or “poor performance.” However, the timing of the termination-especially if it happens immediately after a background check-can be strong circumstantial evidence of discrimination.
Step 2: Verify Your Pardon Status
Before launching a legal battle, you must confirm that your record is actually protected under the Ontario Human Rights Code. ✔️ Ensure your Record Suspension is active and has not been revoked. Remember, this protection covers pardoned federal offences (like past drug charges or thefts) and all provincial offences (such as speeding tickets under the Highway Traffic Act).
Step 3: Consult an Employment Lawyer
Employment law involving human rights can be incredibly complex. ⚖️ Bring your termination letter, background check results, and proof of your Record Suspension to an Ontario employment lawyer. They will assess whether you have been wrongfully dismissed and if you have grounds for a human rights complaint. They will also calculate your rightful severance pay, which may have been wrongfully withheld.
Step 4: File a Claim with the HRTO or the Courts
Your lawyer will help you decide the best venue for your case. 💬 You can file an application directly with the Human Rights Tribunal of Ontario (HRTO) claiming discrimination based on a record of offences. Alternatively, if you are also seeking substantial severance pay, your law firm might recommend filing a wrongful dismissal lawsuit in the Ontario Superior Court of Justice, attaching a human rights claim to it.
Protected vs. Unprotected Criminal Records in Ontario
| Type of Record | Protected from Discrimination? | Can They Fire You For It? |
|---|---|---|
| Pardoned Federal Offence (Record Suspension) | Yes (Fully protected under OHRC) | No (Unless it somehow constitutes a Bona Fide Occupational Requirement, which is rare) |
| Provincial Offence (e.g., Highway Traffic Act) | Yes | Generally No (Unless driving is essential to the job and your license is suspended) |
| Unpardoned Indictable Offence or Summary Conviction | No | Yes (If the employer can prove the offence is relevant to the job duties) |
How Much Does it Cost to Fight Back?
Fighting a wrongful termination based on discrimination can be pursued in several ways, each with different financial implications. 💵 You should never let the fear of legal costs stop you from exploring your rights.
- HRTO Applications: Filing a human rights application in Ontario costs $0 CAD.
- Legal Representation (Contingency): Many employment law firms will take strong wrongful dismissal and human rights cases on a contingency basis. This means you pay no upfront fees, and the lawyer takes a percentage (typically 25% to 33%) of your final settlement.
- Record Suspension Applications: If you need to apply for a Record Suspension (pardon) through the Parole Board of Canada, the federal application fee is currently $50 CAD, plus additional costs for fingerprints and local police record checks (which can add another $100 to $200 CAD).
How Long Does the Process Take?
In Ontario, the statute of limitations to file an application with the HRTO is strictly one year from the date of your termination. ⌛ If you choose to sue for wrongful dismissal in civil court, you generally have two years from the termination date.
Resolving the dispute is another matter. A skilled lawyer can sometimes negotiate a settlement with your former employer within 3 to 6 months by sending a strong demand letter. However, if the employer refuses to settle and the case goes through the HRTO or the court system, it can take anywhere from 18 months to 3 years to secure a final judgment, depending on current judicial backlogs in Ontario.
Frequently Asked Questions (FAQ)
Can an employer ask if I have a criminal record during an interview?
Yes, but the phrasing matters legally. Employers in Ontario can ask if you have any unpardoned criminal convictions. They should not ask if you have pardoned convictions or provincial offences, as these cannot be legally used against you in the hiring process.
What happens if an unpardoned offence is unrelated to the job?
The Ontario Human Rights Code does not explicitly protect unpardoned records. However, under common law, if an employer fires you for an unpardoned conviction that has absolutely zero relevance to your job duties, you may still have grounds for a wrongful dismissal lawsuit.
Will my pardoned offence show up on a police check?
Generally, no. Once a Record Suspension is granted, the conviction is removed from the Canadian Police Information Centre (CPIC) database. However, there are rare exceptions for Vulnerable Sector Checks if the pardoned offence involved specific sexual offences.
Can I lie about a pardoned conviction on a job application?
If an application asks “Do you have a criminal record for which a pardon has not been granted?” you can legally and truthfully answer “No” if your only convictions have been pardoned. You are not obligated to disclose protected records.
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