The Legal Realities

The Common Law

The legal concerns, at the recruitment stage of the process, relate to tort or negligence law. In short, the laws in Canada restrict the making of misleading or reckless statements that may induce a job applicant to consider employment⁸. Obviously, any published recruiting material should be reviewed to ensure it is accurate and is not a misrepresentation of reality.

Human Rights

SIN and Citizenship

Every employee, who is eligible for employment insurance in Canada, must be registered with Human Resources Development Canada. Registration is done through issuance of a social insurance number (SIN). Job applicants are not required to give a potential employer their SIN’s. They are, however, required to provide a SIN within three days of commencing employment. Beyond its role in registering employees for government programs such as employment insurance and the Canada Pension Plan, the SIN acts as a control on the employment of foreign workers. It is therefore, valid and non-discriminatory, when recruiting, to ask if the candidate has a SIN. 

Above, we discussed this issue as it relates to the prohibited grounds and the potential for “systemic” discrimination in some of the methods we canuse to recruit. From a recruiting perspective, the best approach to avoiding an allegation of a violation under the Human Rights Code is to clearly establish the bona fide occupation requirements for a position and use those as the basis for recruiting materials, literature or presentations. In the case of the bus operator the National Occupational Standards comprehensively describe the occupational requirements of the position.

⁸ There has been a substantial rise in employment-related common law torts particularly in the private sector over the past decade. Settlements, in some cases, have been substantial. It should be noted however, that incumbent and former employees are seven times more likely to sue than job applicants.