Canada: Employer Liable Under Ontario's Human Rights Code For Actions Of Consultant

In the recent decision of Reiss v CCH Canadian Limited, the Ontario Human Rights Tribunal (the Tribunal) awarded a job applicant $5,000 damages for injury to the applicant's dignity, feelings and self-respect under the Human Rights Code (the Code) as a result of comments made by an agent of the prospective employer, CCH Canadian Limited (CCH) even though CCH itself had not discriminated against the applicant.

In response to a number of job openings posted by CCH, Mr. Peter Reiss (Mr. Reiss) applied for two positions at CCH as a legal writer.  Mr. Reiss had thirty years' experience in the legal field but was nearing sixty years of age at the time of his application.  As such, and fearing his age might negatively affect the outcome of his application, Mr. Reiss intentionally omitted certain dates and other information from his resume.

Following a review of Mr. Reiss' application by Mr. Peter Schon (Mr. Schon), a human resources consultant engaged to assist CCH with the hiring process, Mr. Reiss subsequently communicated his expected salary range with respect to the posted positions, which was unusually low.  Ms. Rita Mason (Ms. Mason), who was ultimately responsible for CCH's hiring procedure,  later asked Mr. Schon to request further information from Mr. Reiss in light of his low salary expectations and incomplete application.

Despite further information being provided, however, Ms. Mason determined that Mr. Reiss' application should be put on "hold." In particular, Ms. Mason felt that Mr. Reiss should have been "more up front about his application," and could have provided a more "convincing reason" as to why he wanted to make such a significant career change.  Further, there were already two other qualified job applicants who had begun the interview process (and who had applied before Mr. Reiss). 

Following an inquiry from Mr. Reiss as to the status of his application, Mr. Schon informed Mr. Reiss that his application had not been chosen but failed to indicate that his application was still on "hold." Understandably, Mr. Reiss interpreted this response to mean that his application had been rejected and asked why he had not been selected for testing or an interview.  In response, Mr. Schon advised Mr. Reiss that CCH was "moving towards candidates that [were] more junior in their experience and salary expectations."  However, as the salary expectations of the other candidates were in fact higher than that specified by Mr. Reiss, this statement was incorrect.  Notably, Ms. Mason was not shown Mr. Schon's emails or copied on them. 

Mr. Reiss subsequently launched a human rights claim against CCH, alleging that CCH discriminated against him on the basis of his age when it decided not to offer him an interview.

The Tribunal's Decision

In its decision, the Tribunal considered CCH's liability with respect to its decision to place Mr. Reiss' application on "hold," as well the actions of its hired consultant, Mr. Schon.

With respect to the decision to place Mr. Reiss' application on "hold," the Tribunal held that Mr. Reiss failed to establish that it was probable that his age was a factor that contributed to this decision.  In particular, it was noted that CCH had a number of  non-discriminatory reasons for questioning Mr. Reiss' application and/or not offering him an interview, including: (i) the omission of  significant dates and other information from his first resume; (2) his low salary expectations; (iii) his failure to sufficiently explain his interest in becoming a legal writer after a lengthy career as a lawyer; and (iv) the fact that two other qualified candidates were already progressing through the recruitment process when Mr. Reiss applied. 

The Tribunal did, however, find CCH vicariously liable for the misleading and incorrect comments made by Mr. Schon.  Such comments led the Tribunal to conclude that Mr. Schon had personally formed an opinion that Mr. Reiss was not a suitable candidate based on a stereotyped assumption that an older person would want a higher salary and thus would not be a good candidate for the position.  This caused Mr. Reiss to believe there was no reason to follow up with CCH in regards to his application.  Importantly, it was held that if Mr. Reiss had been informed that his application was on "hold" it was very likely that he would have followed up further with CCH.

As such, the Tribunal ordered CCH to pay Mr. Reiss $5,000 for injury to Mr. Reiss' dignity, feelings, and self-respect. Although Mr. Schon was not an employee of CCH, the Tribunal noted that he was an agent of CCH and CCH had accepted any potential liability arising with respect to his actions.  Mr. Reiss was not entitled to monetary compensation for any loss of earnings because it was ultimately Ms. Mason who was responsible for CCH's hiring decisions, and as noted above, the Tribunal found that she had not discriminated against Mr. Reiss.  

Our Views

Similar to its recent ruling in Morgan v. Herman Miller Canada Inc. (previously discussed here), this decision presents another example whereby the Tribunal has found an employer liable even though the employer itself did not breach the Code.  Employers should be aware that liability under the Code can be grounded in not only the actions of its employees, but also as a result of the actions of its agents, including consultants or contractors. 

The case also serves to illustrate the importance of ensuring that all sensitive communications with prospective job candidates are approved of by an employee with authority to do so.  All such communications should be reviewed to ensure that no statement can be construed to relate to protected grounds under the Code. 

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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