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Lecture 2

LAW 529 Lecture 2: Chapters 6-10


Department
Law and Business
Course Code
LAW 529
Professor
Pnina Alon- Shenker
Lecture
2

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Class 2 September 13, 2018
Chapter 6: The Job Recruitment & Hiring Process
è process of job recruitment and hiring process = regulatory regime NOT common law
job recruitment process occurs prior to creation of employment contract and common law
regime deals with rules of contracts
common law = freedom of contract: both parties enter contractual relationship when both
sides believe that doing so will make them better off (have all the info)
o judges play a limited role in policing this process (dishonesty and misrepresentations
made during process)
Common Law and Discrimination in Job recruitment & Hiring
SCC rules that general principle of law is “complete freedom of commerce”
Restriction: existence of a statute restricting the freedom & “adoption of a rule contrary to good
morals or public order.”
Christie v. York Corporation: refused beer, sued for humiliation but lost case as denying “negros”
service did not violate either of 2 restriction above (applicable to contract law)
o Freedom of contract is the supreme, judges did not want to intervene (blind eye
Seneca College v. Bhadauria-> legal principle tested once again
women applied to job repeatedly, not invited for interview even though was qualified,
discriminated against on basis of her race -did not use the avenues available under HRC
o discrimination must be dealt with under regulatory standards
Brought a lawsuit in common law courts, wanted a new tort prohibiting discrimination in hiring
decisions, or a right to bring a lawsuit in court to enforce Human Rights Cod
o Court of appeal agreed, Seneca Appealed
o No, Canadian common law DOES NOT recognize a tort of discrimination that prohibits
an employer from discriminating against job applicants based on race
§ refusal to enter into contract relations or refusal to consider prospect not
recognized at common law to give rise to liability in tort
Common Law Torts That Apply to Job Recruitment and Hiring
è judge only regulate/control of info between prospective employer and employee
o in aiding informed contracting parties, judges allow for tort and contract law to promote
truthful flow of info during the process
(A) Tort of Deceit or Fraudulent Misrepresentation By A Prospective Employer
Deceit: tort where A makes false statement with intention of misleading B; B relies on false statement,
and, as a result, B suffers a loss, Damages can be recovered

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2
Fraudulent Misrepresentation: common law action based in contract law; A knowingly makes false
statement with intention to mislead B, statement induces B to enter into contract. B may be able to
rescind contract, seek damages for loss
Rescind: set aside a contract, put party back into pre-contract position (void)
Employers can’t intentionally mislead or lie to potential employee to induce them to accept an
employment offer
Few decisions may indicate, employers either don’t lie or hard for employee to prove
(B) Tort of Negligent Misrepresentation by an Employer
Negligent Misrepresentation: tort where A, owing a duty of care, makes an untrue statement to B
without sufficient care as to statement’s accuracy, B relies upon and suffers loss as a result
MUST HAVE duty of care to commit this tort
Duty of Care: special relationship between two parties creates an obligation in tort law to take
reasonable steps to avoid harming other party
DOES NOT require deliberate intention to misinform, more common than fraud & deceit
Hedley Byrn e(Bank) & Co. v. Heller & Partners- > employers have made promises to potentials
if person with special skill takes on a contract where their special skill will be relied on a duty of
care will arise
Queen v. Cognos Inc.-> tort of negligent misrepresentation during the recruitment process
during interview it was not disclosed the major project was funding pending, person had
uprooted their life to move for this job
o SCC held: negligent misrep does apply to pre-employment recruitment process
o ALL MUST BE PRESENT
(1) must be a duty of care based on a “special relationship” between the representor
and the representee;
(2) representation in question must be untrue, inaccurate, or misleading;
(3) representor must have acted negligently in making said misrepresentation;
(4) representee must have relied, in a reasonable manner, on negligent misrep
(5) reliance must be detrimental to representee in sense damages resulted.
Courts assume employees are capable of understanding predictions are at times wrong
(C) Fraudulent or Negligent Misrepresentation by Job Applicant
Wrongful Dismissal: against a former employee alleging that the employer terminated their contract
without complying with the implied terms in the contract requiring reasonable notice

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o Employer then argues that the misrepresentation during the recruitment process voided
the reasonable notice clause in the contract
If the employee’s dishonesty is exposed during recruitment process no legal issue
Clark v. Coopers & Lybrand Consulting Group-> misrepresentation by job applicant
lied about academic qualifications, employer hired based on credential but fired him once he
came to find out about the deception
o employee fought for in lie notice but the misrepresentation voided this clause
Islip v. Coldmatic Refrigeration of Canada Ltd-> not serious
misrepresentation was on salary that did not induce the employer therefore could not be said to
be good grounds to fire without notice
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