Northern Exposure

Avoiding Hiring Pitfalls in Canada

By Kate McNeill
McCarthy Tetrault

We all know that once you hire an employee, you have certain legal obligations to that employee. But what about before you even hire someone?

In Canada, job applicants are entitled to certain human rights and common law protections that employers must be aware of in their hiring practices. In this Q&A, we provide answers to some of the more commonly asked questions about hiring practices in the Canadian marketplace.

Q. When we are advertising or posting a job, what potential issues do we need to be aware of?

A. Under human rights legislation in Canada, employers must not use statements in a job advertisement that directly or indirectly discriminate against candidates based on certain protected grounds. Some examples of these are race, religion, ethnic origin, age, marital/family status, sex, sexual orientation, and disability, but they differ slightly from province to province.

For example in British Columbia, you can’t refuse to hire someone because of a criminal conviction that is “unrelated to the employment or to the intended employment of that person.” This can lead to complicated judgment calls, and legal advice is often helpful.

Q. What kind of information about a prospective employee can we seek through a job application?

A. As with job advertisements, employers must not ask questions in a job application that seek information, directly or indirectly, about the grounds protected under human rights legislation.

Questions that are permissible include whether the candidate:

  • is legally able to work in Canada;
  • is over the provincial age of majority and therefore eligible to work;
  • would be available for shift work or would be able to relocate/travel for work;
  • or,is able to perform the duties of the job.Finally, it’s important to ensure that the questions are tailored to the job in question and that the information sought is reasonably related to the job itself.

Q. Will the use of a third-party headhunter minimize our exposure to liability in the hiring process?

A. No. Third-party recruiters such as headhunters are considered to be agents of the employer, so the employer can be held liable for their actions. As a result, employers should ensure that headhunters:

  • comply with human rights legislation;
  • have an accurate and complete job description and don’t offer misleading or false information about the job or the company;
  • don’t act in a way that would breach an existing employment agreement with a candidate’s current employer; and
  • inform the employer immediately if the candidate is being enticed away from other secure employment.

Q. What kinds of questions can we ask during a job interview and what should we avoid?

A. In a job interview, employers should only ask questions needed to make a hiring selection on the basis of merit and must avoid questions that would directly or indirectly solicit information tied to a prohibited ground under human rights legislation.
For example, if a candidate raises a physical disability or religious belief, the employer may justifiably ask how that may be accommodated in the position. However, questions about race, ancestry, sexual orientation, or political belief would generally not be acceptable.

Q. Is it advisable to conduct a background check of a prospective employee?

A. If your business generally obtains background checks or references, then be sure to notify prospective employees of that practice and, where necessary, obtain their informed, written consent. If the background check results in information about a protected ground under human rights legislation, that information can’t be relied on as the basis for a hiring decision.

Q. What, if any, issues should we keep in mind if we decide to extend an offer of employment to a prospective employee?

A. If you require a successful preemployment background check, the offer of employment should be conditional on that background check. Further, offers of employment should be in writing and clearly and accurately tailored to the position being offered. You should review the offer carefully with the candidate and give him or her adequate time to consider the offer to ensure that the candidate understands and agrees to the terms.

Finally, don’t make any over-reaching or unrealistic promises to a candidate that would induce the candidate to accept the position. Such promises can be costly down the road if the prospective employee relies on them to his or her detriment.

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