In February 2005, an employee applied for a nursing position at
the Trois-Rivières regional hospital centre. At the time, he
was asked to fill out a pre-employment medical questionnaire in
which he confirmed having no psychiatric medical history. He was
subsequently hired in March 2005. In October 2006, the employee
went off on medical leave. Eventually, the employer discovered that
the employee had made several misrepresentations on his
pre-employment questionnaire, more specifically about his prior
psychiatric issues (suicidal tendencies, alcoholism, gambling
addiction, depressed and unstable moods, personality disorder,
Based on this information that had only recently been brought to
its attention, the employer decided to dismiss the employee in
December 2006, claiming, among other things, that the employee
had made a false declaration during the pre-employment process,
that the questions on which the employee had lied were relevant to
ensure the efficient and economic performance of the nursing
function (a work dysfunction could have a direct impact on the
quality of patient care and safety) and that if it had received an
accurate and complete response during the pre-employment period, it
would have had grounds not to hire the employee.
The union representing the employee filed a grievance to contest
the dismissal. The grievance was dismissed by the arbitrator seized
of the matter and the decision upheld by the Superior Court of
Québec in judicial review. The matter made its way up to the
Court of Appeal of Québec.
The Court of Appeal first noted that the legal principles
applicable here are essentially found in sections 18.1 and 20
of the Québec Charter of Human Rights and Freedoms
(R.S.Q., C. 12) (the "Charter"). These
provide that no one may, in an employment application form or
employment interview, require a person to give information
regarding any ground of discrimination recognized by the Charter,
unless that information can be justified based on the aptitudes or
qualifications required for an employment.
The Court of Appeal emphasized that a request for information
that is discriminatory in appearance can be justified if it is made
for a rational purpose related to the performance of the work in
question and is reasonably necessary to achieve this legitimate
Applying these principles to the case at hand, the Court of
Appeal confirmed that the information hidden by the employee was
reasonably related to the performance of his work as a nurse and
therefore, could be asked. In so doing, the Court of Appeal
dismissed the union's argument that as of the moment certain
questions are based on discriminatory grounds (such as disability
as the union alleged in this particular case), an employee can no
longer be accused of misrepresentation in respect of that
information. In other words, according to the Court, candidates
cannot, when in doubt, hide information that might be prejudicial
to them to later turn around and invoke, if that subterfuge is
eventually revealed, the potentially discriminatory nature of some
of the questions asked.
As for the employer's duty to accommodate, the court
specified that such a duty was never triggered given the
Lessons for employers
The Court of Appeal of Québec has just reiterated the
employers' right to ask questions in pre-employment interviews
designed to obtain information on any of the discriminatory grounds
recognized by the Charter if that information is rationally
connected to the nature of the position. Still, employers should
remain cautious. Instances of misrepresentation must be dealt with
on a case by case basis, and employers will have to demonstrate
that this information was reasonably necessary and justified in
light of the aptitudes and qualifications required by the
This right to obtain truthful responses to questions asked does
not, however, absolve employers from their duty to accommodate. If
employees respond honestly to the questions asked, employers must
conduct the appropriate analysis to determine whether a reasonable
accommodation is possible or raises undue hardship.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
A former teacher at Bodwell High School has learned a valuable lesson from the B.C. Human Rights Tribunal— it is not discriminatory for an employer to offer child-related benefits to only employees with children.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
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