Hiring processes can be competitive – particularly in a slow market where eligible candidates may outnumber available opportunities. While applicants may look to present their experience or qualifications in the most favourable light (whether on a CV or in the course of an interview), there is a significant difference between positive spin and blatant dishonesty.
A 2022 decision from the Quebec Court of Appeal serves as a useful reminder of the importance of honesty and good faith during a hiring process.
In the case in question, an individual successfully applied to work for Quebec’s provincial police service (the “police service”). As part of the hiring process, they had to complete several pre-hiring steps. This included physical and medical tests, a pre-employment questionnaire, and a medical questionnaire. In completing the medical questionnaire, the individual failed to disclose a medical condition, Tourette Syndrome (“TS”).
Having completed the pre-hiring requirements, the police service extended a promise of employment and the individual commenced police techniques training – resigning from his job as a correctional officer to do so.
At his graduation ceremony, a police service recruitment officer learned through discussions with the individual’s instructors that they had TS. The instructors were clear that the individual had performed well and that his medical condition had not affected his performance in training.
Nonetheless, the recruitment officer reported this information to the police service. As a result, it was determined that the individual had failed to disclose his medical condition on the pre-employment medical questionnaire. An investigation ensued and the individual admitted withholding this information.
Having reviewed the matter, the police service decided to rescind its promise of employment. In so doing, the police service asserted that the individual’s dishonesty had broken the trust necessary for an employment relationship, and further evidenced a failure to meet the good character requirements to work as a police officer.
Litigation followed and the case ultimately made its way to Quebec’s Court of Appeal. The Court found that while the medical questionnaire was both overbroad in scope and discriminatory, the police service’s decision to revoke its promise of employment was nonetheless reasonable. In reaching this conclusion, the Court relied on the available evidence, which demonstrated that the only reason the job offer was withdrawn was the individual’s dishonesty during the hiring process.
The Court explained:
The cancellation of the promise of employment is not connected to the complainant’s state of health. After completing its investigation, the SQ found that he was capable of performing the duties of a patrol officer despite his TS and the psychological problems he had sought help for. It was the deliberate omissions with regard to his state of health that prompted the employer’s decision. Those half-truths coming from a future police officer were of a kind to affect the relationship of trust with the employer and even with the public, especially when the notions of good moral character and integrity are core qualities required in applicants. [emphasis added]
This decision is thus a critical reminder of providing honest and accurate information during a hiring process. Failure to do so may result in the offer being withdrawn – or if the relationship has already begun when the misrepresentation is uncovered – the relationship being terminated for cause.
That being said, and in addition to likewise operating in an honest and good faith manner, employers should be careful in the information they require as part of a hiring process. Overbroad requests for information that may be protected by human rights laws or is otherwise disconnected from the core competencies of the role, may result in unintended liability.
In Imperial Oil Limited v. Haseeb, 2023 ONCA 364, Ontario’s Court of Appeal considered a case in which the employer required job applicants to be either Canadian citizens or permanent residents. The plaintiff applied for an entry-level engineering position with the employer. In both completing the application form, and during the interview process, he misrepresented that he was eligible to work in Canada on a permanent basis. He further informed the employer that he had received his permanent resident card and social insurance number the year prior.
The plaintiff was considered the top-rated candidate, and the employer extended an offer of employment conditional on him providing a copy of a Canadian birth certificate, a Canadian citizenship certificate, or a Canadian certificate of permanent residence. When the plaintiff explained that he was neither a citizen nor a permanent resident, and would have to work under a Post-Graduate Work Permit until he obtained citizenship or permanent residency, the employer rescinded its offer.
In the ensuing litigation, the plaintiff asserted that the employer’s decision to rescind its offer of employment was rooted, in part, in citizenship discrimination contrary to the Human Rights Code (the “Code”). The defendant employer asserted that its decision was solely the result of the plaintiff’s repeated dishonesty during the hiring process.
Ultimately, Ontario’s Court of Appeal sided with the plaintiff and found that the employer’s decision (unlike in the police service case) was not solely based on dishonesty. Rather, it also stemmed from unlawful discrimination on the basis of citizenship status. In reaching this conclusion, the Court stated:
The tribunal held that a discriminatory ground (citizenship) was a factor in the decision to withdraw the job offer. The tribunal further held that the fact that a non-discriminatory factor (the lies) may have also played a role did not insulate Imperial’s conduct from being discriminatory. As I have outlined above, only if the conduct alleged to be discriminatory was solely motivated by non-discriminatory factors can it rebut a prima facie case of discrimination.
The tribunal’s finding that the appellant’s dishonesty was not the sole factor that motivated Imperial to withdraw the job offer was reasonable on the record before it.
The Imperial Oil decision provides a useful contrast to the police service case. Both address dishonesty in the hiring process alongside considerations of alleged unlawful discrimination.
These cases:
underline the importance of being honest during a hiring process. Failure to do so may result in the loss of an opportunity and, from a practical standpoint, lead to reputational harm;
emphasize the need for employers to think carefully about the information sought during the hiring process (being mindful of human rights law and the core requirements of the role); and
remind employers to scrutinize any decision to rescind an offer of employment prior to taking this step, and to be able to show that such a decision is not in any way the result of discrimination on a Code-protected ground.
This article was originally published on January 12, 2024 at First Reference Talks.
Vey Willetts LLP is an Ottawa-based employment and labour law firm that provides timely and cost-effective legal advice to help employees and employers resolve workplace issues in Ottawa and across Ontario. To speak with an employment lawyer, contact us at: 613-238-4430 or info@vwlawyers.ca.