Canada: Discrimination In The Hiring Process: What Remedies Are Available To Candidates?

Labour, Employment and Human Rights Bulletin
Last Updated: May 13 2019
Article by Raphaël Buruiana

When tribunals allow a discrimination complaint pursuant to the Charter of Human Rights and Freedoms 1 (the "Charter"), they will usually order the defendant to pay moral and/or punitive damages and in some cases order the reinstatement of the plaintiff. However, in some circumstances, the plaintiff may claim a different type of remedy. For example, what happens if a person is not selected for a particular position because of a discriminatory reason? Can a tribunal order an employer to hire a candidate? Can it force the employer to reinitiate the hiring process?

That was the question recently raised before the Superior Court of Québec who was judicially reviewing a decision rendered by the Commission de la fonction publique2 (the "Commission").

The Commission's Decision

The plaintiff, a lawyer who had applied for a position with the office of the Director of criminal and penal prosecutions (the "Prosecutor") while she was pregnant, filed a discrimination complaint with the Commission after she was denied the position. She claimed that she had not been selected because of her pregnancy.

The Commission allowed the complaint mainly because during her interview, the plaintiff, who was both the most experienced and best qualified candidate for the position, was asked about her maternity leave and its duration3. Following the interview process, the plaintiff was ranked third out of five candidates and was not offered the position. The Commission ordered the Prosecutor to give the position to the plaintiff.

The Superior Court's Decision

The Prosecutor filed for judicial review of the Commission's decision. It argued that the process for selecting the best suited candidate for a given position belonged to the employer and that the Commission could not overtake this process. The Prosecutor explained that during the interview process, it analyzed the candidates' personality and communication skills, which were two of the most important selection criteria. The Prosecutor suggested that if the plaintiff was discriminated against, the Commission should have ordered that the interview process be reinitiated rather than ordering the Prosecutor to hire the plaintiff.

The Court confirmed that the Commission had the power to order the hiring of a candidate who had been discriminated against. However, in order to do so, the Commission had to find that the plaintiff was reasonably the most capable candidate and would have certainly obtained the position had he or she not been discriminated against.

In this case, the Court found that the Commission had erred in its analysis of the plaintiff's candidacy mainly because it focused on the plaintiff's CV and past experiences and failed to take the interview process into consideration. Indeed, it appeared from the evidence that other candidates had outperformed the plaintiff during this crucial part of the hiring process. Therefore, the evidence did not indicate that the plaintiff would have obtained the position in the absence of discrimination. Consequently, the Court canceled the Commission's order.

However, since the plaintiff was no longer pregnant at the time of the hearing, the Court ordered that the Prosecutor reinitiate the hiring process because there was no indication that it was unable to select the most suitable candidate.

Conclusion

The plaintiff is currently seeking authorization to appeal this decision before the Québec Court of Appeal. The highest tribunal of the province may have to determine if a court can order, as a remedy, the hiring of a candidate. This decision will have a significant impact on employers since their exposure in discrimination cases may no longer be limited to the payment of damages or reinstatement of a previous employee.

Regardless of the Québec Court of Appeal's eventual decision, this case reminds employers of the importance of having a well-structured, scripted and documented hiring process. Indeed, by doing so, employers limit their risk of having candidates contest the process and file discrimination complaints. This will also prevent an employer from having to reinitiate its hiring process or to hire a candidate for a position that may already be filled by another candidate.

Footnotes

[1] CQLR c. C-12.

[2] Procureure générale du Québec c. Commission de la fonction publique, 2019 QCCS 581, leave to appeal filed, 2019-04-01 (C.A.), 200-09-009980-191.

[3] Association des procureurs aux poursuites criminelles et pénales et Directeur des poursuites criminelles et pénales, 2018 QCCFP 20.

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