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
