Refusal To Hire Due To A Criminal Record: Who Bears The Liability?

Employers often find themselves in a grey area when dealing with candidates or employees who have a criminal record. Under section 18.2 of the Québec Charter of Human Rights and Freedoms (the "Charter"), employers may not refuse to hire someone on the basis of a criminal or penal offence that is not sufficiently connected to their employment. Balancing this prohibition and legitimate concerns about organizational reputation and security can make it difficult to determine the proper course of action.

Despite a growing body of case law, the application of the "sufficient connection" test for Charter violations to an employee's prior offence and their duties remains unclear and continues to create uncertainty. This complexity is further compounded in a tripartite employment relationship where an employment or recruitment agency is involved in the process. Who, in this context, can be held liable? A recent decision by the Court of Québec¹ offers valuable insight into these issues for employers and recruitment agencies.

Background

A municipality (the "City") engaged a human resources consulting firm (the "Agency") to recruit a computer technician for a project to upgrade 295 computers. The position involved moving through different municipal buildings, interacting with staff, and accessing the City's computer network, including sensitive data on its citizens, employees and institutions.

After a successful interview and technical test organized by the Agency, the candidate's application was forwarded to the City. The City made the hiring conditional on a criminal background check, which it carried out itself without involving the Agency.

The background check uncovered convictions for harassment, charges for fraud, active probation and a weapons prohibition. According to the court judgments, the harassment was carried out through emails and telephone calls — tools directly connected to the functions of the position to be filled. The City rejected the job application and informed the Agency, without providing reasons, which then advised the candidate of the City's decision.

The candidate sued the City, its representatives and the Agency, alleging a violation of section 18.2 of the Charter.

Who Can Be Held Liable?

Before even considering whether the facts amounted to a breach of the Charter, the Court ruled out any potential liability on the part of the Agency. According to the Court, the Agency:

• had no knowledge of the candidate's criminal record;
• was never involved in conducting the background checks;
• did not participate in the decision-making process that led to the rejection of the candidate's job application;
• had in no way refused to hire the candidate;
• had, at most, observed and complied with its client's decision.

Accordingly, liability could not be imposed on the Agency.

Was the Refusal to Hire Discriminatory?

To be lawful, an employer refusing to hire someone based on a criminal or penal record must demonstrate a connection between the employment sought and the offence for which the person was convicted or charged. The Charter states that an employer's refusal is unlawful if the offence is "in no way connected" with the employment. In fact, recent case law has typically required employers to demonstrate a connection between the employment and the offence that is not merely tenuous, but rather direct and objective.²

In this case, the Court found that there was a direct connection between the offence and the employment. Specifically:

• the candidate, if hired, would likely have access to a sensitive and confidential database;
• the City could not fully monitor the activity on its server;
• the City was concerned that the candidate might conduct unauthorized searches on its network and obtain information otherwise unavailable to him;
• the candidate was subject to a 3-year probation order and a weapons prohibition;
• the harassment carried out by the claimant involved technological means similar to those he would allegedly use as a computer technician;
• email systems and phone calls were [OUR TRANSLATION] "types of media in which [the candidate] may be required to work."

Accordingly, the Court found that the fraud and harassment offences did not satisfy the "in no way connected with the employment" test under the Charter.

The fact that the Court found the evidence sufficient to conclude that there was a connection between the offence and the employment may surprise some, given that the courts have often refused to accept such a connection where the evidence rests on indirect or remote connections, probabilities, assumptions or abstract fears.³

Takeaways

This decision is reassuring to employers as it reduces, at least prima facie, the burden of demonstrating a close connection between the offence and the employment. However, since the judgment seems to deviate in some respects from established case law — proceed with caution — mechanically applying the court's findings is not advisable. A thorough case-by-case analysis is still the most effective way to reduce risk.

This decision is also reassuring to recruitment agencies, as they may be able to avoid liability. Completely withdrawing from the background check process and limiting their role to simply relaying a third party's decision could exempt them from liability.

What remains clear is that the prohibition under section 18.2 of the Charter continues to be the source of some interesting decisions. The majority of courts in Canada (Ontario being a notable exception) follow similar legal principles. We will continue to monitor developments and keep employers informed of emerging trends in the case law.

Footnotes

1. Nadeau c Cosior Ti (9317-3052 Québec inc.), 2025 QCCQ 5204.

2. See inter alia: Québec (Commission des droits de la personne et des droits de la jeunesse) c Maksteel Québec inc., 2003 CSC 68; Commission des droits de la personne et des droits de la jeunesse (Proulx) c Québec (Ministère de la Sécurité publique), 2015 QCTDP 8.

3. See inter alia: Commission scolaire crie c Association de l'enseignement du Nouveau-Québec (CSQ), 2009 QCCA 466; CSSS et Syndicat des travailleuses et travailleurs (FSSS-CSN) (L), DTE 2007-522 (TA).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.