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12 June 2019
When tribunals allow a discrimination complaint pursuant to the Charter of Human Rights and Freedoms,(1) 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 role for a discriminatory reason? Can a tribunal order an employer to hire a candidate? Can it force the employer to reinitiate the hiring process?
These questions were recently raised before the Superior Court of Quebec in its judicial review of a decision rendered by the Public Service Commission of Canada.(2)
The plaintiff – a lawyer who had applied for a role at 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 role. 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 the best qualified candidate for the role – was asked about her maternity leave and its duration.(3) Following the interview process, the plaintiff was ranked third out of five candidates and was not offered the role. The commission ordered the prosecutor to give the role to the plaintiff.
The prosecutor filed for judicial review of the commission's decision. It argued that the process for selecting the most suitable candidate for a given role belonged to the employer and that the commission could not overtake this process. The prosecutor explained that during the interview process, it analysed the candidates' personalities 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 has the power to order the hiring of a candidate who has been discriminated against. However, in order to do so, the commission must find that the plaintiff was reasonably the most capable candidate and would have certainly obtained the role had they not been discriminated against.
In this case, the court found that the commission had erred in its analysis of the plaintiff's candidacy 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 role in the absence of discrimination. Consequently, the court cancelled 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.
The plaintiff is seeking authorisation to appeal the decision before the Quebec Court of Appeal. The highest tribunal of the province may have to determine whether a court can order the hiring of a candidate as a remedy. This decision could have a significant impact on employers as their exposure in discrimination cases may no longer be limited to the payment of damages or the reinstatement of a previous employee.
Regardless of the Quebec Court of Appeal decision, the case reminds employers of the importance of having a well-structured, scripted and documented hiring process. By doing so, they limit the risk of having candidates contest the process and file discrimination complaints. This can also prevent an employer from having to reinitiate its hiring process or hire a candidate for a role that has already been filled by another candidate.
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