Canada: Headhunter Discriminates In Hiring; Employer Found Liable


Reiss v. CCH Canadian Limited, 2013 HRTO 764 is the latest case out of the Ontario Human Rights Tribunal dealing with age discrimination in hiring.  Reiss is important in general because the tribunal found an employer liable for the discriminatory acts of an outside human resources consultant retained by that employer.

This case is important in Alberta because the Alberta Human Rights Act also requires that an employer not discriminate on the basis of age in hiring.


This case involved a 60-year-old lawyer who had worked in private practice for many years when he applied for a position with a legal publishing company which provided information for legal planning and human resources professionals.  He was ultimately not selected for an interview and he claimed that in the circumstances this amounted to discrimination on the basis of age.

The hiring process involved the human resources consultant forwarding applications from applicants who appeared to the consultant to meet the qualifications.  Applicants who qualified in follow-up testing by the employer were then offered an interview.

In this round of hiring, there were two positions to be filled.  Two applicants had been selected for testing as promising candidates before the complainant had applied. 

Two days after the complainant applied, a former employee of the employer was offered one of the two positions.

When the complainant applied for the position, he omitted certain information from his application, such as when he became a lawyer and the dates of his earlier jobs.  The application was also unclear as to whether he worked for a firm or was a sole practitioner.

The complainant was soon contacted by the consultant respecting his salary expectations.  He provided a salary range that was lower than what was budgeted for the position.  When the application was forwarded to the employer, the employer had concerns that the salary expectation was unusually low and thought the omissions in his application were strange.  The complainant provided an amended application which clarified the deficiencies. 

Internal correspondence of the employer indicated that although there was interest in the complainant, he might be "overqualified".  The employer emailed the consultant and noted that it was concerned by the fact that he had not been upfront about how senior he was in practice and that his reasons for such a big change provided in his covering letter were not convincing.  The email concluded, "... we'll just keep this application on hold for now until we decide whether to pursue it.  I'll keep you posted."  Soon after, the employer notified the consultant that they had interviewed one of the applicants who had applied before he had, that she was a hopeful candidate and they intended to interview the other previous applicant as well.

The next day, the complainant emailed the consultant asking when he could expect to hear about an interview.  The consultant responded, "... unfortunately they did not select your application at this time."  When asked whether this was due to his credentials being out of date, the consultant responded, "I don't have all the feedback on everyone yet, individually, but it is looking like they are moving toward candidates that are more junior in their experience and salary expectation."

Further correspondence between the employer and the consultant indicated that the job would be offered to one of the applicants who had applied before the complainant, and if she refused it, the other previous applicant.  The correspondence also notes that if they both refused the position, they would consider whether to test the complainant.

The position was taken by one of the applicants, who quit a week later.  The other applicant had accepted a job in the meantime, and the position was ultimately filled by a writer who had previously held the position.  The complainant was not contacted and soon filed the complaint of age discrimination.


Age Discrimination

The tribunal noted first that there was no direct evidence of age discrimination because there was no evidence of anyone stating that he would not be hired because of his age.  It then considered whether purely circumstantial evidence could establish discrimination in this case.

The tribunal noted that the complainant's burden was to establish that it was more probable than not that age was a factor in the decision to refuse to provide the complainant with an interview, and adopted the following test for whether there was prima facie discrimination in hiring on the basis of age:

a) That the applicant was qualified for the particular employment;

b) That the applicant was not hired; and

c) That someone no better qualified but lacking the distinguishing feature which is the gravamen of the human rights complaint subsequently obtained the position.

The tribunal noted that the complainant was clearly qualified for the position, as were the other applicants, but the other applicants were significantly younger.

The tribunal found that the employer had shown an interest in the two prior applicants before the complainant applied and that the employer had legitimate concerns with respect to the lack of forthrightness of the complainant, his low salary expectations and his lack of a good explanation for his decision to make a substantial career transition.  The employer had an apprehension that the complainant may not want to stay in the job if he ultimately took it on.  The tribunal noted that these were non-discriminatory reasons to refuse to offer an interview.

The tribunal also considered cases suggesting that "overqualified" was a euphemism for "too old".  The tribunal noted that while this could be evidence of a discriminatory pretext, in this case the context of the concern was the employer's apprehension about why he would in fact want to switch from private practice to this job.  Combined with the fact that the employer had legitimate non-discriminatory reasons to refuse to offer him an interview, the tribunal concluded that age was not a factor in the decision of the employer and thus, discrimination was not established on the part of the employer.

The tribunal found that the consultant's email indicating that the employer was seeking candidates with more junior qualifications and salary expectations was false in that his salary expectations were lower than those of the other applicants and found that this circumstantially suggested a stereotypical assumption on his part that an older person would necessarily want a higher salary and would therefore not be a good candidate.

The tribunal also found that the consultant's email indicating that the complainant had not been selected had prevented the complainant from following up with the employer going forward, which, considering what happened with the position, had an adverse effect on the complainant.  This amounted to discrimination on the basis of age.

Perhaps most importantly, the tribunal attributed the discriminatory act of the consultant to the employer, on the basis that the consultant was acting as the employer's agent.

The tribunal noted that this was not a denial of an interview but the prevention of follow up, which was damage of a more limited nature because it was not guaranteed that he would have been given an interview had he followed up.


The tribunal found that the complainant was not entitled to damages for lost wages, because the ultimate decision-maker was the employer and the employer had not discriminated against him.  However, the tribunal awarded $5000 in damages against the employer for injury to dignity, feelings and self-respect as a result of the consultant's discrimination in providing the complainant with false information on the status of his job application.


Most of the cases in Alberta and otherwise dealing with age discrimination are concerning terminations, retirement and pension policies. 

There are several decisions on point in Ontario and elsewhere, but not many in Alberta.  One example of an Alberta decision involved an employee whose job was discontinued and who was then refused employment in the lower classification that replaced her previous job: Cowling v. Alberta Employment and Immigration, 2012 AHRC 4.

Reiss is important because the employer was found liable for discrimination in employment despite not directly participating in that discrimination; it was not the employer's discrimination but rather that of the consultant. 

The damages were not substantial in this case, but the reasoning suggests that they could be substantial in a slightly different factual context.  If the tribunal had found that the human resources consultant had greater authority in determining which candidates would in fact be given interviews and ultimately hired (i.e. the recommendations were rubber-stamped by the employer), then the human resources consultant could be considered the employer's agent as final decision maker.  Applying the reasoning of Reiss to facts such as these could result in liability to the employer for all lost wages as a result of the discrimination of the consultant.

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions