In Ontario, having an unpardoned criminal record is not protected under the Human Rights Code. However, an employer cannot simply use an old or unrelated conviction as an excuse to fire you without severance. Unless they can prove a clear “nexus” (connection) between your offence and the duties of your job, you are likely the victim of wrongful dismissal and entitled to full common law notice.
Discovering that your employer has uncovered a past criminal conviction can be an incredibly humiliating and frightening experience. Many workers in Ontario who have fully paid their debt to society find themselves suddenly marched into HR and fired on the spot. 😲 Often, the employer will declare that they have “just cause” to terminate the relationship, proudly stating they owe you absolutely no severance pay.
The law in Ontario handles this situation with nuance. It is true that the Ontario Human Rights Code only protects individuals from discrimination if they have a *pardoned* federal offence (a record suspension) or a provincial offence. If your offence is unpardoned, human rights protections may not apply. However, under employment common law enforced by the Superior Court of Justice, an employer cannot deny you severance pay unless they can prove the specific nature of your conviction makes it objectively impossible for you to safely and effectively perform your job. If there is no connection, they must pay you your legal entitlements.
Step-by-Step Process if Fired for a Criminal Record in Ontario
When an employer weaponizes your past against you, it is crucial to remain calm and methodical. 📋 Here is how you can protect your financial rights and challenge an unfair “just cause” termination.
Step 1: Evaluate the “Nexus” (Connection to the Job)
The most critical step is analyzing the relationship between your job and your record. If you work as a bank teller in Toronto and are convicted of an indictable offence for financial fraud, the employer has a strong case for just cause. But if you work as a forklift operator in Mississauga and the employer discovers a ten-year-old conviction for a minor altercation, there is virtually no connection to your workplace. No connection means they owe you full severance.
Step 2: Review Your Initial Job Application
Did you lie when you were hired? 📝 If the initial job application explicitly asked, “Do you have an unpardoned criminal conviction?” and you checked “No,” the employer might argue they are firing you for dishonesty and a breach of trust, rather than the record itself. Honesty during the hiring process significantly affects your legal standing.
Step 3: Secure Written Reasons for Termination
Force the employer to put their reasons in writing. If the termination letter clearly states you are being fired solely because of a background check revelation, this document will become the central piece of evidence for your employment lawyer. Do not sign any full and final release documents offering a fraction of your pay.
Step 4: Have a Lawyer Send a Formal Demand Letter
Once you retain an employment law firm, they will draft a demand letter. ✉️ This letter will highlight Ontario case law demonstrating that an unrelated criminal record does not meet the high threshold for a “just cause” dismissal. The letter will demand your full common law severance, which is calculated based on your age, length of service, and the availability of similar employment.
Step 5: File a Civil Claim
If the employer refuses to pay, your lawyer will issue a Statement of Claim. For severance packages under $35,000 CAD, the claim is filed in the Ontario Small Claims Court. For larger claims involving higher salaries, the lawsuit will proceed in the Superior Court of Justice.
How Much Does it Cost in Ontario?
Fighting back against an unjust firing is financially accessible through the civil court system. 💵 Here are the typical costs involved:
- Lawyer Contingency Fees: Most wrongful dismissal cases are handled on contingency. The law firm will take 25% to 33% of the final settlement, and you pay no upfront hourly fees.
- Consultation: A thorough review of your termination letter and criminal record context usually costs a flat fee of $300 to $500 CAD.
- Small Claims Court Filing: Issuing a Plaintiff’s Claim costs approximately $108 CAD.
- Superior Court Filing: Issuing a Statement of Claim for higher amounts is roughly $229 CAD.
How Long Does the Process Take?
Employers often prefer to settle these disputes quietly rather than having their hiring practices scrutinized in a public courtroom.
- Initial Settlement: A well-drafted demand letter frequently results in a severance offer within 3 to 6 weeks.
- Mandatory Mediation: If the claim is filed in Small Claims Court, a settlement conference is usually scheduled within 6 to 9 months.
- Full Civil Trial: If the case escalates to a full trial at the Superior Court of Justice, the process can take 1.5 to 2 years.
When Can an Employer Deny Severance?
| Scenario | Job Nexus (Connection) | Severance Entitlement |
|---|---|---|
| Accountant with an unpardoned fraud conviction | High (Breach of trust) | Zero (Just Cause Dismissal) |
| Warehouse worker with a DUI conviction | None (No driving required) | Full Common Law Notice |
| Teacher with a pardoned offence | Protected by Human Rights | Severance + Human Rights Damages |
Frequently Asked Questions (FAQ)
Is a background check mandatory in Ontario?
No, there is no general provincial law requiring employers to run criminal background checks, except for specific vulnerable sectors (like working with children or the elderly, or in high-security roles).
What if my charges were dropped or I was acquitted?
If you were charged but never convicted, or if you were acquitted, you do not have a criminal record. Firing you based on mere police contact or dropped charges is highly likely to be viewed as a wrongful dismissal, entitling you to full severance.
Are summary convictions protected in Ontario?
The Ontario Human Rights Code strictly protects provincial offences (like Highway Traffic Act violations). Federal summary convictions under the Criminal Code of Canada are only protected if you have received a formal record suspension (pardon).
Can they fire me if I am currently facing charges?
An employer can let you go at any time “without cause” by paying you full severance. However, they generally cannot fire you “with cause” simply because you are facing pending charges, unless the nature of the charges makes it impossible or unsafe for you to remain in the workplace.
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