Canada: Omissions Of Declarations At The Time Of Hiring: The Importance Of The Candidate's Obligation Of Good Faith
HR Space Bulletin

In a recent decision, the Québec Court of Appeal once again ruled on the obligations imposed on both employers and candidates during the hiring process. In the matter of Commission des droits de la personne et des droits de la jeunesse (T.J.R.) v. Attorney General of Quebec (Sûreté du Québec)¹, the Court of Appeal had to determine the legality of a pre-employment medical questionnaire, as well as the extent of the candidate's duty of good faith when completing such a questionnaire. The result is that a candidate's duty of good faith appears to take precedence over the legality of a pre-employment medical questionnaire.

The Facts

The Plaintiff dreamed of becoming a police officer. He served in the Canadian Armed Forces for 10years and later as a correctional officer. Finally, wanting to fulfill his dream, he applied to the Sûreté duQuébec and began the long recruitment process required to obtain a promise of employment. However, the Plaintiff had been diagnosed with a neurological disorder when he was only 7years old: Tourette syndrome. While for some individuals this syndrome may cause significant impairing symptoms, it is quite the opposite for the Plaintiff. His only symptoms are rare controlled vocal tics and rare motor tics that manifest themselves as occasional eye blinking.

As part of the recruitment process, the Plaintiff is first subjected to four pre-selection tests. Next, the Plaintiff must pass physical and medical tests, as well as fill out medical and pre-employment questionnaires. The Plaintiff passed the entire process with flying colours and received a promise of employment from the Sûreté duQuébec, on the recommendation of the Sûreté duQuébec and the Minister of Public Security. As a result, the Plaintiff resigned from his job as a correctional officer and began training in police techniques and then at the École nationale de police. He completed his academic studies with distinction.

At the graduation ceremony, which the Sûreté duQuébec's recruitment officer attended, he informally learned, through discussions with some of the instructors, that the Plaintiff had Tourette syndrome. The instructors reassured the recruitment officer that this syndrome did not affect the Plaintiff's performance. Despite this, the officer reported the situation to the Sûreté duQuébec, which initiated a verification of the Plaintiff's recruitment file. It was then found that the Plaintiff had not declared, specifically during the pre-employment medical questionnaire, that he suffered from this syndrome. The Sûreté duQuébec therefore suspended the Plaintiff's file pending their doctor's recommendations on the matter and summoned the Plaintiff to an investigation with their representatives. In the course of this investigation, the Plaintiff also admitted that he had not disclosed the fact that he had consulted, on his own initiative, a psychologist, whom he described at the time as a life coach, due to his unhealthy relationships with women. He explains this by saying that his condition was never disabling and that for him, "it was over and done with". He therefore did not believe he needed to disclose this information.

Despite these omissions by the Plaintiff, the Sûreté duQuébec's physician determined that the Plaintiff was fit to work as a patrol officer. However, the Sûreté duQuébec did not communicate this information to the Plaintiff and decided to terminate the promise to hire him since, in its opinion, the trust had been broken and he no longer met the requirements of ethics and good character required to work as a police officer. As a result, the Plaintiff was not able to fulfil his dream and needed to reorient his career in damage insurance. He then filed a complaint with the Human Rights Commission, which ultimately referred his complaint to the Human Rights Tribunal.

The Decisions

The Human Rights Commission argued that the medical questionnaire was far too broad, that many questions were not justified by the position's requirements and that other questions were not specific enough. Due to the fact that the medical questionnaire was too broad, imprecise and discriminatory, the Sûreté duQuébec could not use the Plaintiff's omissions to terminate his promise of employment.

At trial, the Human Rights Tribunal recognized that some of the questions asked in the recruitment process were too broad and therefore illegal. However, the Tribunal refused to find that the refusal to hire was discriminatory, since the evidence shows that the Sûreté duQuébec's decision was not based on the fact that the Plaintiff has Tourette syndrome, but rather on the fact that the candidate failed to declare his medical condition in good faith, thereby violating the essential qualities of good character and integrity required of police officers.

The Court of Appeal of Québec affirmed the trial decision. It was of the opinion of the Court that despite the fact that a question is illegal and discriminatory, a candidate must answer it in good faith and disclose any medical condition that, to their knowledge, is of concern to a future employer. The highest court in Québec therefore supports the position that a candidate cannot use the argument that a question is illegal and discriminatory to justify his failure to declare a medical condition or potentially relevant information during the hiring process. Thus, in this case, it was found that the withdrawal of the promise of employment was not related to the Plaintiff's Tourette syndrome, but rather to his voluntary omissions concerning the state of his health, which undermine the trust with the Sûreté duQuébec and with the public, especially since good morals and integrity are vital to police work.

Conclusion

Footnote

1 2022QCCA 1577.

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