- The Ontario Human Rights Code's “record of offences” protection is narrower than most people assume — it covers only provincial offences and federal offences with a granted record suspension (pardon).
- This protection does not cover a pending or open criminal charge, a withdrawn charge, an acquittal, or an unpardoned federal conviction.
- Since a pending charge isn't a protected ground, an employer generally isn't committing human rights discrimination by acting on it — though wrongful dismissal law still applies.
- Termination “for cause” generally still requires the employer to show a real connection to the workplace — reputational harm claims alone, without more, aren't automatically sufficient.
- Bail conditions — like house arrest or no-contact orders — can create practical employment complications, separate from any legal discrimination question.
- Being presumed innocent in criminal law doesn't automatically bind a private employer's workplace decisions.
The Short Answer
It might — and the legal protection many people assume exists is significantly narrower than they think. The Ontario Human Rights Code protects against discrimination based on a “record of offences,” but this ground is defined narrowly and does not generally cover a pending criminal charge.
What “Record of Offences” Actually Protects
Under section 10(1) of the Human Rights Code, “record of offences” is defined narrowly as a conviction for: (a) an offence for which a pardon (record suspension) has been granted under the federal Criminal Records Act and hasn't been revoked, or (b) an offence under a provincial enactment (such as a Highway Traffic Act conviction). That's it — the protection is narrow by design.
What It Doesn't Cover
Explicitly outside this protection: open or pending charges, withdrawn charges, acquittals, peace bonds, and unpardoned federal or Criminal Code convictions. Many people assume any criminal record, or even just being charged, is automatically a protected ground — it isn't. This is one of the most commonly misunderstood areas of Ontario employment and human rights law.
An employee is charged with an offence unrelated to their job. Because the charge is pending and not a granted pardon or a provincial offence, it falls outside the Code's “record of offences” protection — meaning an employer's decision related to the charge generally isn't human rights discrimination on that specific basis, even though other legal protections (like wrongful dismissal law) may still apply.
Can You Be Fired Over a Pending Charge?
Since a pending charge isn't a Code-protected ground, an employer generally isn't committing human rights discrimination by acting on it (unless it's being used as a pretext for discrimination on an actual protected ground, like race or disability). But this doesn't mean termination is automatically lawful — ordinary wrongful dismissal principles still apply. Termination “for cause” generally requires the employer to show a real connection to the workplace: reputational harm to the employer's business, an inability to perform job duties, coworkers refusing to work with the employee, or genuine operational difficulty. Unsupported reputational-damage claims alone typically aren't enough.
Work-related conduct tends to make a just cause argument easier for an employer to establish than purely off-duty conduct, which requires a clearer, more direct link to the workplace. Absent just cause, an employer terminating an employee still generally owes standard notice or severance obligations.
Bail Conditions and Practical Work Complications
Beyond the discrimination question, bail conditions themselves can create real, practical employment complications. House arrest or curfew conditions can restrict your ability to attend a workplace unless the release order specifically carves out an exception for employment. No-contact conditions can complicate matters further if the complainant is a coworker or client. Conditions can sometimes be varied by consent or application if they're unreasonably restrictive on your ability to work.
What to Do If You're Facing This Situation
- Understand your specific protections — don't assume the Human Rights Code covers a pending charge
- Review your employment contract for any relevant disclosure or conduct obligations
- Consider whether bail conditions need a work-related carve-out or variation
- Get legal advice — both from a criminal lawyer on your charge and, if needed, an employment lawyer on your workplace situation
Common Mistakes
The Code's "record of offences" protection is narrow — pending charges and unpardoned convictions generally fall outside it.
Even without human rights protection, an employer generally still needs just cause, or must provide notice or severance, to terminate lawfully.
Address restrictive bail conditions early — waiting can create avoidable employment consequences.
These are related but distinct legal questions — each deserves its own informed assessment.
Worried about how a charge could affect your job? Call our Toronto team at 416-274-2222 for a free, confidential consultation.
Frequently Asked Questions
Generally, no. The Code's "record of offences" protected ground is narrow — it covers only provincial offence convictions and federal offences for which a record suspension (pardon) has been granted. A pending, unresolved charge isn't covered by this protection.
Under section 10(1) of the Code, it's defined narrowly as a conviction for a provincial offence, or a federal offence for which a pardon (record suspension) has been granted under the Criminal Records Act and hasn't been revoked. Open charges, withdrawn charges, acquittals, and unpardoned federal convictions all fall outside this specific protection.
It's not automatically human rights discrimination to act on a pending charge, since it isn't a protected ground under the Code. However, general wrongful dismissal law still applies — termination "for cause" typically requires the employer to show a genuine connection between the conduct and the workplace, not simply that the charge is embarrassing.
Generally, a real workplace impact — such as the conduct harming the employer's reputation or operations in a demonstrable way, rendering the employee unable to perform their duties, causing coworkers to refuse to work with them, or creating genuine operational difficulty. Unsupported claims of reputational damage alone are typically not enough.
Generally, yes — work-related conduct tends to make a case for just cause easier to establish, since the connection to the employer is more direct. Off-duty conduct requires a clearer, demonstrable link to the workplace before it can support termination for cause.
Yes, this is a separate, practical concern. Conditions like house arrest, a curfew, or a no-contact order can restrict your ability to attend work, especially if the release order doesn't carve out an exception for employment. These conditions can sometimes be varied if they're too restrictive.
This depends heavily on your specific circumstances — the terms of your employment, whether you were terminated or simply on leave, and the reasons given at the time. This is a fact-specific employment law question worth discussing with a lawyer.
This depends on your specific employment situation, including any disclosure obligations in your contract or industry (such as regulated professions), and is worth discussing with a lawyer before deciding how to proceed.