‭Chapter 3 — Common Law Issues‬

‭Areas of Common Law Liability:‬

‭1. Misrepresentation by Job Candidates:‬

‭‬ E
● ‭ mployee —‬‭is an individual who is in an employment relationship with an employer.‬
‭●‬ ‭There is no legislation that requires job candidates to be honest during the application‬
‭process.‬
‭●‬ ‭However, courts have held that, under the common law, misrepresentations made by‬
‭employees before they are hired may, if they are sufficiently serious, justify dismissal for‬
‭cause.‬
‭●‬ ‭Intentional dishonesty may constitute a breach of employment contract and may also‬
‭amount to the tort of fraudulent misrepresentation where the employee:‬
‭➔‬ ‭Knew the misrepresentation was untrue,‬
‭➔‬ ‭Intended to deceive the employer, and‬
‭➔‬ ‭The misrepresentation was relied on by the employer to its detriment.‬

‭●‬ I‭f a false statement related to qualifications or work experience has a‬‭significant impact on‬
‭the hiring decision‬‭, an employer may terminate an employee for cause as a result of that‬
‭misstatement, even if the employee is performing the job satisfactorily.‬
‭●‬ ‭This principle also applies to false statements that suggest an inherent lack of where the‬
‭job requires a high degree of trust. For eg., misrepresentation regarding academic degree‬
‭or deliberately refusing to reference current employers.‬

‭●‬ O
‭ n the other hand,‬‭minor or negligent misstatements‬‭do not customarily justify dismissal‬
‭without notice — that is, the misinformation was not significant to the employer, the‬
‭employer probably‬‭could not dismiss‬‭the employee without reasonable notice – for eg.,‬
‭misstating the length of previous job or remuneration from previous job.‬

‭●‬ T ‭ o emphasize the importance of honesty in filling out application forms, and to buttress‬
‭(support) its legal position, an employer should include an attestation clause at the end of‬
‭all job application forms.‬
‭●‬ ‭An‬‭attestation clause —‬‭a clause on a job application form that states that the‬
‭information provided is true and complete to the applicant’s knowledge and that a false‬
‭statement may disqualify the applicant from employment or be grounds for dismissal‬
‭without notice due to wilful misconduct.‬
‭●‬ ‭Thus, if the employer subsequently discovers a serious misrepresentation, it can establish‬
‭that the employee was forewarned about the possible consequences, including dismissal‬
‭without notice or pay in lieu thereof.‬
‭2. Wrongful Hiring: Negligent Misrepresentation‬

‭Misrepresentation by an Employer :---‬

‭●‬ A ‭ n employer also may be legally liable for inaccurate statements made during the hiring‬
‭process.‬
‭●‬ ‭If the employer makes a misrepresentation that is relied on by a prospective employee‬
‭and that employee suffers damages because of it, the employer may have to compensate‬
‭the employee.‬‭This is obviously true if the false statement is made knowingly, with‬
‭intent to deceive; this is the tort of fraudulent misrepresentation.‬
‭●‬ ‭However, even if the employer sincerely believes that the misleading or inaccurate‬
‭statements are true, it may be liable for damages for committing the tort of‬‭negligent‬
‭misrepresentation‬‭because an employer has an obligation to ensure that material‬
‭statements made during the recruitment process are accurate.‬
‭●‬ ‭Negligent misrepresentation —‬‭failing to take reasonable care in providing information‬
‭that results in foreseeable injury to a third party‬
‭●‬ ‭Actions for negligent misrepresentation in hiring are uncommon in Canada because‬
‭employees recruited under false pretenses generally claim constructive dismissal.‬
‭●‬ ‭(The written contract did not prevent the negligent misrepresentation action because the‬
‭misrepresentation went to the “nature and extent” of the employment opportunity, and the‬
‭contract did not cover this issue.)‬

‭There are a number of steps that an employer can take to avoid liability :—‬
‭➢‬ ‭It should ensure that all information given at the pre-employment stage is accurate‬
‭and complete.‬
‭➢‬ ‭It should ensure that the job description is accurate and that all interviewers know‬
‭what the prospective job and compensation package involve.‬
‭➢‬ ‭The employer’s representatives must be candid about the job.‬
‭➢‬ ‭Attempts to make the job sound as attractive as possible should be avoided if they‬
‭involve misleading a candidate in any way.‬
‭➢‬ ‭If the interviewer does not know the answer to a question asked by a candidate, the‬
‭interviewer should undertake to contact the candidate with the correct answer‬

‭●‬ W ‭ hen a candidate is chosen, the employer should prepare a written employment contract‬
‭that sets out the terms of employment‬
‭●‬ ‭The contract should include a clause that states that all oral representations are‬
‭void on the signing of the contract.‬
‭●‬ ‭Such a clause may override inaccurate statements and simple misunderstandings‬
‭made in the hiring process.‬

‭ here are limits to when an employer will be held liable for misstatements made during the hiring‬
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‭process —‬
 ‭➢‬ E ‭ mployers will not be found liable, for instance, where an employee’s reliance on‬
‭an employer’s information is unreasonable.‬
‭➢‬ ‭Where a reasonable person would have detected the inaccuracy or where the‬
‭employee was in a position to verify the facts of a statement but failed to do so, the‬
‭plaintiff will not be successful. Reliance on opinions or idle comments does not‬
‭constitute grounds for a negligent misrepresentation claim, and misstatements that‬
‭result in mere inconvenience do not establish a claim.‬
‭➢‬ ‭Similarly, predictions concerning future events are unlikely to constitute‬
‭negligent misrepresentation, as employees are assumed to understand that‬
‭they are not statements of actual fact.‬

‭Executive Search Firm Misrepresentations:‬

‭●‬ M ‭ ost representations made by a recruitment firm are the legal responsibility of the‬
‭employer.‬
‭●‬ ‭Therefore, the employer’s contract with the search firm should specify the position,‬
‭compensation, and career potential for the job and restrict the firm to providing only that‬
‭information to job candidates — i.e., Representations about the job should be limited to‬
‭those authorized by the employer.‬
‭●‬ ‭The contract should also contain an indemnity clause establishing the search firm’s liability‬
‭in the event that it makes a misrepresentation to a candidate that the employer is‬
‭subsequently held liable for.‬
‭●‬ ‭Note that the search firm should also be contractually required to comply with all‬
‭applicable laws, including human rights laws.‬
‭●‬ ‭An executive search firm may also be legally responsible if it is negligent in the way it‬
‭conducts its search and the employer suffers damages as a result.‬

‭3. Inducement: Aggressive Recruiting:‬

‭●‬ “ ‭ Inducement,” “allurement,” or “enticement”‬‭occur when an employee is lured from‬

‭her current position through aggressive recruiting or inflated promises.‬
‭●‬ ‭Aggressive recruiting involves more than advertising a position – It requires a significant‬
‭degree of pursuit, such as repeatedly contacting the candidate and encouraging her to‬
‭leave her current job.‬
‭●‬ ‭Inducement may also occur when the recruiter promises a prospective employee‬
‭employed elsewhere – such things as promotions, salary increases, job security, or‬
‭other benefits that may never materialize.‬

‭●‬ W
‭ hen inducement is shown but the new employee is subsequently dismissed by the‬
‭employer, – the employee may be entitled to a larger award for wrongful dismissal‬
‭damages than if there‬
 ‭‬ h
● ‭ ad been no inducement.‬
‭●‬ ‭Usually, in determining the length of notice of termination that a dismissed employee is‬
‭entitled to, the court looks at‬‭length of service, age, position, and the availability of similar‬
‭employment‬‭.‬
‭●‬ ‭However, where it finds that the employee was lured to a new job from a secure job,‬
‭it considers additional factors in determining reasonable notice.‬
‭●‬ ‭It may extend the notice period on the basis of such factors as how secure the previous‬
‭job was, whether the employee rejected other job offers that provided greater benefits,‬
‭and whether the new job involved relocating.‬
‭●‬ ‭The rationale for this is that where a person is enticed to leave a secure position, it‬
‭is unfair to wrongfully dismiss her after a short period of employment and then rely‬
‭on a short notice entitlement.‬

‭●‬ A ‭ n employer that‬‭overstates the features of a job may find that it has also committed‬
‭the tort of negligent misrepresentation.‬
‭●‬ ‭Inducement and the tort of negligent misrepresentation can both arise from the‬
‭same situation.‬Unlike a fraudulent misrepresentation, which requires that the person making the representation know it is false or incorrect
and intend to deceive or mislead, a negligent misrepresentation merely requires that one fail to exercise reasonable care or
competence to obtain or communicate information that is true or correct.

‭●‬ T ‭ he issue of the notice period in the event of a future termination of employment should‬
‭be addressed by the employer and employee in a written employment contract before an‬
‭employee starts the job.‬
‭●‬ ‭For example, if the prospective employee is leaving a secure job of 18 years, the parties‬
‭should state whether, or to what extent, this service will be recognized in determining‬
‭reasonable notice of termination.‬
‭●‬ ‭In a recent case — the Ontario Court of Appeal upheld the lower court’s determination that‬
‭the existence of a probationary clause in the employment contract undermined/weakened‬
‭the plaintiff ’s claim of inducement – It held that the inclusion of a probationary clause,‬
‭which allows an employer to terminate an employee during the probationary period based‬
‭on “suitability”, is inconsistent with any allegation that the employee was induced to leave‬
‭his former secure employment.‬
‭●‬ ‭As such,‬‭in addition to its primary purpose of providing a period of time to‬
‭determine a new employee’s suitability for a position, including a probationary‬
‭period in the employment contract may provide an additional defence against a‬
‭claim of inducement.‬

‭4. Restrictive Covenants:‬

‭●‬ M ‭ any written employment contracts restrict the ability of employees to compete with their‬
‭former employer, to solicit employees or customers, or to use the former employer’s‬
‭confidential information.‬
‭●‬ ‭Before hiring an applicant, an employer should find out whether the applicant is subject to‬
‭a restrictive covenant.‬
B2021 bill prohibits restrictive covenant (IN ONTARIO)
 ‭●‬ R
‭ estrictive covenant —‬‭an agreement that restricts an employee’s activities or conduct‬
‭during or after employment — that is, a promise not to engage in certain types of activities‬
‭during or after employment—that might affect her ability to perform the new job — for‬
‭example, a‬‭non-solicitation clause is a restrictive covenant‬‭that prevents an employee‬
‭from soliciting employees or customers of a former employer for a specified period of time‬
‭after the end of employment.‬

‭●‬ R ‭ estrictive covenants are seen as a‬‭“restraint of trade”‬‭and‬‭are enforceable only if they‬
‭are reasonable in the circumstances‬‭.‬
‭●‬ ‭The courts do not like contractual terms that inhibit or prevent someone from earning a‬
‭living in his own field.‬
‭●‬ ‭Therefore they uphold a restrictive covenant only if an employer can show that the‬
‭covenant does not go beyond what is necessary to protect its own legitimate interests.‬

‭●‬ A
‭ n employer that is interested in recruiting a candidate who is subject to a‬
‭restrictive covenant should obtain legal advice concerning the covenant’s‬
‭enforceability and the limits that it could place on the candidate’s ability to perform‬
‭the present job —‬‭This is especially true if the new employer is a competitor of the‬
‭former employer.‬

‭●‬ T
‭ he written employment contract should designate which party is legally responsible if the‬
‭former employer successfully enforces this covenant.‬

‭5. Anticipatory Breach of Contract:‬

‭●‬ A ‭ n‬‭anticipatory breach of contract‬‭occurs when one party repudiates (rejects) the‬
‭employment contract — through either its statements or its conduct—‬‭after the offer of‬
‭employment is accepted but before employment begins.‬
‭●‬ ‭Although in principle this cause of action applies to both employer and employee,‬
‭typically the employer is sued for wrongful dismissal damages when it changes its‬
‭mind about an employment contract.‬
‭●‬ ‭However, an employer’s changed circumstances generally are not a defence against a‬
‭claim for anticipatory breach of contract.‬
‭●‬ ‭At a minimum,‬‭an employee whose employment contract is revoked before starting‬
‭the job will be entitled to “reasonable notice” damages‬‭, similar to the amount payable‬
‭if an employee had already started work and been employed for a very short period.‬
‭●‬ ‭Moreover,‬‭where the individual has quit a secure job, relocated, or made some other‬
‭change because of the job offer, the damage awarded will typically reflect these additional‬
‭expenditures.‬

‭●‬ T
‭ o be successful in an action for anticipatory breach of contract, the hired‬
‭employee must show that:‬
 ➢
‭ ‬ ‭an offer of employment was made,‬
‭➢‬ ‭the offer was accepted,‬
‭➢‬ ‭the contract was then repudiated/rejected/withdrawn by the employer (by‬
‭either word or conduct), and‬
‭➢‬ ‭the employee suffered damages as a result.‬

‭●‬ T ‭ o protect itself against an action for anticipatory breach of contract —‬ ‭an employer‬
‭should hire with care by determining the suitability of the candidate before an offer is‬
‭made.‬
‭●‬ ‭Where the position depends on a particular set of circumstances unfolding in a certain‬
‭way, the offer should be made conditional upon those circumstances occurring.‬
‭●‬ ‭Where an anticipatory breach has occurred as a result of changed circumstances, the‬
‭employer may choose to help the employee find another, comparable job as quickly as‬
‭possible to minimize the damages suffered, and the employer should certainly do nothing‬
‭to hinder such a search.‬
‭●‬ ‭Finally, it is helpful to the employer to have a written employment contract that includes a‬
‭reasonable termination notice clause that restricts the amount of wrongful dismissal‬
‭damages payable - the employee is entitled to.‬
‭●‬ ‭These‬‭clauses often provide for limited notice in the first few months of‬
‭employment‬‭, and likely could be relied upon to reduce damages in an anticipatory breach‬
‭situation.‬
‭●‬ ‭That said, there may be situations in which an employer’s repudiation of the employment‬
‭contract is justified, and the employer will not be liable for damages for anticipatory breach‬
‭of contract — for eg, applicant losing driver’s license after job offer is made and accepted.‬

‭ ertify —‬‭in a class action claim, have a civil court judge decide that there are common issues‬
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‭of law or fact involved, a representative plaintiff will adequately represent the class, and a class‬
‭action is the preferred proceeding.‬

‭6. Inducing Breach of Contract:‬

‭ he‬‭tort of inducing breach of contract‬‭occurs where a‬‭third party‬‭induces the breach of an‬
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‭existing contract between two other parties.‬
‭In the context of employment this can happen, for example, where a new employer offers a‬
‭position to an individual who it knows must break an employment contract with their former‬
‭employer‬‭— such as by‬‭failing to provide contractually required advance notice of‬
‭resignation‬‭—to accept the new position.‬
‭In that situation the new employer may be liable to the former employer‬‭if the latter can‬
‭prove the following:‬
‭➢‬ ‭it had a valid and enforceable contract with the employee;‬
‭➢‬ ‭the new employer knew of the existence of this contract;‬
 ➢
‭ ‬ ‭the new employer intended to procure/cause a breach of this contract; and‬
‭➢‬ ‭as a result of the breach, the former employer suffered damages.‬

‭ s such, this cause of action is of special note to an employer in the somewhat rare case where‬
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‭a prospective employee is contractually bound to provide significant advance notice of‬
‭resignation or—in the much less rare case—where the prospective employee is subject to an‬
‭enforceable non-competition clause.‬

‭7. Background Checking: Negligent Hiring:‬

‭ egligent hiring —‬‭failing to take reasonable care in the hiring process that results in‬
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‭foreseeable injury to a third party.‬
‭Third party —‬‭someone other than the employer or the employee‬
‭Common misrepresentations found in resumés include listing family members as former‬
‭supervisors, gaps in employment not shown on the resumé, incorrect start and end dates and‬
‭job titles, and false academic credentials.‬

‭Reference Checks‬‭:‬

‭‬ A
● ‭ sking an applicant to supply references is a common and recommended practice.‬
‭●‬ ‭It is advisable to get references from a variety of sources, including past supervisors,‬
‭co-workers, and teachers, to get a well-rounded picture of the job candidate.‬
‭●‬ ‭Although there have not been many Canadian cases on negligent hiring, there have been‬
‭instances where an employer has been found liable to a third party when its failure to‬
‭check references has resulted in harm to that third party.‬
‭●‬ ‭The more a job exposes others to the risk of harm, the stronger the employer’s duty to‬
‭investigate becomes.‬
‭●‬ ‭The‬‭standard of care‬‭(the level of diligence one is expected to exercise) imposed on‬
‭employers is‬‭the common law duty of reasonable care‬‭—‬‭the level of diligence that is‬
‭reasonable under the circumstances‬‭.‬
‭●‬ ‭Hiring an employee who will be in a position of trust, such as a daycare provider, or who‬
‭may be required to use force or reasonably result in harm to a third party, such as a‬
‭security guard, requires a high standard of care –‬‭What that level of care is has not‬
‭been firmly settled by the courts‬‭.‬
‭●‬ ‭Expert suggest that‬‭standard practice in the executive search firm industry is to check the‬
‭last five years of employment and/or the last three references‬‭.‬

‭●‬ B ‭ efore checking references, an employer should obtain the‬‭written permission of the‬
‭applicant‬‭– through the applicant’s signature indicating permission.‬
‭●‬ ‭The consent should be general enough that it allows the employer to contact any person‬
‭who it believes is able to provide relevant information about the applicant.‬
 ‭●‬ T ‭ he employer should not be limited to making decisions based on only references named‬
‭by the applicant.‬
‭●‬ ‭One way of obtaining reference from the applicant’s current employer is to only‬
‭obtain a reference after a conditional offer of employment has been made‬‭.‬

‭●‬ E ‭ mployers should record the details of all steps taken when investigating candidates so‬
‭that they will have a written record to use as evidence in the event of a lawsuit — which‬
‭include references who did not respond and the information provided by those who‬
‭responded.‬
‭●‬ ‭The same inquiries should be made of all applicants to ensure consistency and‬
‭thoroughness and to avoid perceptions of discrimination.‬
‭●‬ ‭All information obtained should be kept confidential‬‭– The reference checker should not‬
‭share the comments of one reference with other references or tell references who the‬
‭other references are.‬
‭●‬ ‭Foreign references should not be treated as less valuable than Canadian references‬
‭because this could lead to a claim of discrimination.‬

‭●‬ A ‭ common problem with reference checking is that former employers are hesitant to‬
‭criticize a candidate, fearing that a negative reference could result in a lawsuit —‬‭In‬
‭reality, former employers are rarely sued for giving negative references.‬
‭●‬ ‭Still, many employers have adopted a “no references” policy or they confirm only basic‬
‭facts such as the individual’s job title and the start and end dates of employment‬

‭Education and Professional Credentials Checks:‬

‭ nother type of background check relates to education and professional or trade certification.‬
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‭Failure to perform these checks could also result in negligence claims where a negligently hired‬
‭employee causes harm or loss to a third party in the course of her employment because she‬
‭lacks the educational requirements necessary for her job.‬
‭This is especially true where the applicant is required by law to hold a particular degree or‬
‭certification, as in the case of engineers, accountants, and nurses.‬
‭The checker should call the institution cited on the resumé and speak directly with the records‬
‭department or registrar’s office to confirm a candidate’s degree and date of graduation or, where‬
‭relevant, contact an independent source that evaluates educational institutions.‬

‭Credit Checks:‬

‭‬ L
● ‭ aws dealing with credit checks are common throughout Canada.‬
‭●‬ ‭For example, if an employer in Ontario wants to check the candidate’s credit situation,‬
‭Ontario’s‬
‭●‬ ‭Consumer Reporting Act‬‭requires that the employer notify the applicant, in writing, of its‬
‭intention before the credit check.‬
 ‭●‬ T ‭ he employer should include the request for authorization to conduct the credit check and‬
‭provide notification on the application for employment.‬
‭●‬ ‭If the candidate requests it, the employer must notify her of the name and address of the‬
‭credit-reporting agency supplying the report.‬
‭●‬ ‭If the candidate is not hired, wholly or in part because of the credit check, the employer‬
‭must advise the candidate of the reasons for her rejection and of her right to request‬
‭information concerning the credit-reporting agency within 60 days.‬
‭●‬ ‭Checking an applicant’s credit history may be prudent/wise/necessary where the position‬
‭requires the employee, handling customers’ money.‬
‭●‬ ‭Consumer Reporting Act‬‭requires — an employer who rejects an applicant to advise the‬
‭applicant of all information that the employer considered in the job application process, not‬
‭●‬ ‭just the credit report (s. 10(7)), when the applicant requests it — it holds true even when‬
‭the information in the credit report played no part in the decision not to hire that individual.‬
‭●‬ ‭Therefore, it may be wise for an employer to only conduct credit checks where credit‬
‭information is reasonably necessary for the position in question‬

‭Police Records Checks:‬

‭●‬ W ‭ here the position being applied for requires an employee to work with vulnerable people,‬
‭such as children or people with disabilities, or involves substantial trust, employers should‬
‭require candidates to provide a police records check.‬
‭●‬ ‭Such checks are required by law in certain industries or sectors or for certain jobs. For‬
‭example, in Ontario an employer who operates a group home for persons with‬
‭developmental disabilities must, before hiring an employee or volunteer who will work‬
‭directly with residents, obtain a police records check. Similarly, a teacher applying for a‬
‭teaching certificate must provide a “criminal record declaration”.‬
‭●‬ ‭All police records checks require the prospective employee’s informed consent — clearly‬
‭stated on the application form, and the offer of employment should be made conditional on‬
‭the employee providing the results—and those results being acceptable—to the employer.‬
‭●‬ ‭The employer should also be specific about the kind of search involved.‬
‭●‬ ‭In most Canadian jurisdictions, an employer may refuse to hire someone who has an‬
‭unpardoned criminal record, even if the record does not relate to the job being applied for.‬
‭However, best practice in this area points to only conducting a criminal check where it is‬
‭necessary for the position, documenting reasons for the hiring decision, and keeping the‬
‭results confidential.‬
‭●‬ ‭Employers in Ontario are prohibited from discriminating against a person because‬
‭she has been convicted of a provincial offence (e.g., speeding) unless it is a BFOR‬
‭for the job — or not discriminate because of a criminal conviction for which a‬
‭pardon has been granted unless it is a BFOR for the position‬‭,‬
‭●‬ ‭On the other hand,‬‭where the job applicant was charged with a criminal offence but not‬
‭convicted, this does not fall within the specific definition of “record of offences”‬‭under the‬
‭Ontario Human Rights Code.‬
‭ tatute Reforming Police Checks Receives Proclamation:‬
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‭On November 1, 2018, Ontario’s Police Record Checks Reform Act, passed in 2015, finally‬
‭received a proclamation. This new law establishes comprehensive standards for how police‬
‭records checks are requested and the type of information that may be disclosed. It significantly‬
‭limits non-conviction information, such as mental health history, revealed in police checks. The‬
‭intention is to remove barriers to employment and volunteer opportunities that such disclosure‬
‭creates.‬
‭Under the Act, there are three categories of police records checks:‬
‭★‬ ‭Criminal record check –‬ ‭This check, which is the check most likely to be used as‬
‭a pre-employment screening tool, prohibits the disclosure of non-conviction‬
‭information. Non-conviction information includes information about criminal offences‬
‭for which an absolute or conditional discharge has been granted, outstanding‬
‭charges for which no conviction has been entered, and criminal offences that‬
‭resulted in a finding of “not criminally responsible” on account of mental disorder.‬
‭★‬ ‭Criminal record and judicial matters check –‬ ‭A criminal record and judicial‬
‭matters check may disclose absolute and conditional discharges in certain‬
‭circumstances, in addition to conviction-related information.‬
‭★‬ ‭Vulnerable sector check –‬ ‭More extensive disclosure is allowed for those in a‬
‭position of trust or authority in relation to vulnerable persons, such as children. For‬
‭these checks, non-conviction information may be disclosed, subject to certain‬
‭temporal limits. The Act also permits the‬‭“exceptional disclosure”‬‭of‬
‭non-conviction information where certain conditions are satisfied.‬
‭In all three categories, and in line with the Human Rights Code, convictions for which a‬
‭pardon has been granted will generally not be disclosed.‬

‭ nder the Act, individuals subject to the search must give their written consent to the type of‬
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‭check to be conducted — that they be the first to receive the results of the check and they must‬
‭consent, in writing, before it can be disclosed to a third party, such as an employer.‬
‭As such, under the Act, employers who conduct pre-employment criminal record checks will now‬
‭only have the results disclosed to them where the prospective employee has consented to the‬
‭disclosure).‬
‭Where potentially inappropriate non-conviction information is included in a record, the individual‬
‭may request a reconsideration of the disclosure.‬

‭When Background Checks Should Be Done:‬

‭●‬ M ‭ ost types of background checks should be done only after a conditional offer of‬
‭employment is made.‬
‭●‬ ‭The exception is job reference checks, and even then usually the current employer should‬
‭be contacted only after a conditional offer.‬
 ‭●‬ C ‭ onducting background checks at the very end of the process reduces the risk of‬
‭allegations of discrimination by unsuccessful job applicants.‬
‭●‬ ‭For example,‬‭credit checks require an applicant to provide her social insurance‬
‭number, which can reveal information about citizenship, one of the prohibited‬
‭grounds of discrimination under the Human Rights Code.‬
‭●‬ ‭It is easier to defend against an allegation of discrimination if the information was not‬
‭obtained before a conditional offer of employment was made.‬
‭●‬ ‭In addition, many organizations now use third parties to carry out background checks,‬
‭after a conditional offer of employment has been made – therefore, there is less risk that‬
‭the employer will obtain information that touches on a prohibited ground of discrimination .‬
‭●‬ ‭Finally, an employer conducting a background check is advised to base the search‬
‭on objective criteria that relate to job duties.‬

‭Different Types of Employment Relationships:‬

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● ‭ ot all individuals hired to perform work for an organization are hired as “employees”.‬
‭●‬ ‭When an organization decides to hire someone directly as an employee, it still has the‬
‭option of choosing or negotiating which type of employment relationship there will be.‬
‭●‬ ‭The arrangement chosen is a matter of contractual agreement between the parties.‬
‭●‬ ‭For the most part, statute law in Ontario does not distinguish between different‬
‭types of employees.‬
‭●‬ ‭Both full-time employees (those who work a full week) and part-time employees (those‬
‭who work less than a full week)‬‭are entitled to statutory benefit and protections‬‭,‬
‭although‬‭the monetary amount of benefits (such as the amount of vacation or‬
‭termination pay) reflects the number of hours worked‬‭.‬
‭●‬ ‭Temporary (fixed-term) employees and casual employees are generally entitled to‬
‭statutory benefits and protections as well.‬
‭●‬ ‭However, employees who are hired for a fixed term or task are not entitled to termination‬
‭notice or pay in lieu of notice, because these workers are aware of the temporary nature‬
‭of their employment.‬

‭●‬ T ‭ o be eligible for benefits under the employment insurance system, an employee must‬
‭have worked a minimum number of qualifying hours in insurable employment during the‬
‭qualifying period.‬
‭●‬ ‭Thus, part-time or casual employees who have worked less than the minimum number of‬
‭hours during the qualifying period are not eligible for benefits.‬
‭●‬ ‭However, where an employee has more than one job during the qualifying period, all‬
‭insurable employment hours are added together to determine whether an employee‬
‭qualifies for benefits.‬
‭Categories of Employees are : —‬

‭ ermanent full-time employees —‬‭These employees are hired for an indefinite period—that is,‬
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‭with no predetermined end to the employment relationship—and‬‭usually work 35 to 40 hours‬
‭per week.‬‭If a specific term of employment is not stipulated in an employment contract, the term‬
‭of employment is assumed to be indefinite. Many employers prefer to use the term “regular” as‬
‭opposed to “permanent,” on the grounds that “permanent” can be misleading since any‬
‭employment relationship can be terminated as long as it is done in accordance with the law.‬

‭ ermanent part-time employees –‬‭These employees are hired for an indefinite period – to‬
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‭work less than full-time hours. There is no statutory definition of what constitutes a “part-time‬
‭employee,” although‬‭for the purposes of collective bargaining, part-time employees are‬
‭usually those who work 24 hours per week or less.‬

‭ emporary employees (or contract workers) —‬‭These employees work‬‭either full-time or‬
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‭part-time, but they are hired for a specific period or task‬‭rather than for an indefinite period‬
‭like permanent employees. They may be called “‬‭fixed-term employees‬‭” because their‬
‭employment contract is for a fixed period of time, such as six months. They may also be referred‬
‭to as “‬‭contract workers‬‭.” However,‬‭temporary employees are not independent contractors‬‭.‬
‭Likewise, they are not “temps” or “agency employees,” who remain employees of an‬
‭employment agency.‬

‭ asual employees —‬‭These employees‬‭form a special category of temporary employees‬

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‭and work intermittently as work is offered.‬‭Both‬‭temporary and casual employees are‬
‭sometimes referred to as “contract employees.‬‭” Casual employees used to be exempt from‬
‭public holiday pay and termination and severance entitlements under the Employment‬
‭Standards Act, 2000 if they were able to refuse a work assignment without any negative‬
‭consequences. Effective November 2009, these exemptions for elect-to-work employees were‬
‭removed, so they are now covered by those standards.‬

‭ gency employees or temps —‬‭These employees‬‭work for an employment agency at‬

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‭various places as arranged by the agency.‬‭The contract of employment is between the‬
‭agency and the agency employee.‬‭An organization that uses the services of an agency‬
‭employee pays the agency directly‬‭. The agency remains responsible for employment standards‬
‭entitlements, such as vacation and public holiday pay, as well as termination and severance pay.‬

[‭Effective April 1, 2018, subject to some exceptions, Ontario employers were required to pay‬
‭employees the same rate of pay for the same work regardless of their employment status (i.e.‬
‭full-time, part-time, casual, temporary, or seasonal). However, as a result of the passage of Bill‬
‭47 by the newly-elected Progressive Conservative government, this requirement was eliminated,‬
‭effective January 1, 2019.]‬