The Complainant submitted a complaint alleging that he was discriminated against because he had a criminal record. He alleged that the discrimination occurred in connection with employment or in the performance of a contract. The Complainant led team-building sessions workshops. The Complainant had been contracted by a third party organization to work for the Respondent. However, his contract was terminated once two people participating in the workshops complained about his criminal record. As such, the Complainant alleged that the Respondent was in contravention of the following provisions of the Yukon Human Rights Act (“the Act”):
- Section 7 (i), which prohibits discrimination on the basis of having a criminal record
- Section 9 (b) and (e), which prohibit discrimination in connection with any aspect of employment or in connection with the performance of a contract.
In response to this complaint, the Respondent submitted a No Evidence motion to dismiss. In other words, the Respondent was claiming that there was not enough evidence and as such, the case should be dismissed. Specifically, the Respondent claimed there was not enough evidence to prove two issues. First, there was no evidence proving that the Respondent and Complainant were in an employment relationship. Second, there was no evidence proving that there was discrimination based on the Complainant’s criminal record
First, the Board concluded that there was no employee/employer relationship. In its analysis, the Board emphasized that control is a necessary factor in determining whether the Respondent discriminated against the Complainant. More specifically, if the Respondent had significant control over the third-party organization, they may have been able to pressure the third-party organization to fire the Complainant, and by extension, become culpable for that potentially discriminatory conduct. The Board found that this was not the case in this situation. The third-party contractor was no dependent on the Respondent. As such, the Respondent had no real control over the third party-contractor.
Second, the Board found that there was no evidence that the Respondent, at the time of cancelling the course, knew about Complainant’s criminal record. Instead, the evidence showed that the Respondent decided to cancel the program due to concerns from the workshop participants. Further, section 10(b) of the Act states that relying on a person’s criminal record when terminating their employment is justified if the criminal record or charges are relevant to the employment.
Therefore, the Board dismissed the complaint.