How Candid Must Job Applicants Be With Prospective Employers In Quebec?

When applying for senior positions that require the trust and confidence of the prospective employer what and how must senior executives disclose about the end of their previous employment? While no one is entitled to seek or obtain employment under false pretenses, but how forthcoming must senior executives be about innuendo, unflattering, unproven or even baseless allegations. How does an individual's right to privacy guaranteed by the Quebec Charter of Human Rights and Freedoms, Civil Code affect the matter. These are some of the issues that the Quebec Court of Appeal dealt with in TransForce Inc. vs. Baillargeon, 2012 QCCA 1495.

THE FACTS

B had been Co-President of a pharmaceutical company whose parent company, Ratiopharm, was headquartered in Germany. In July 2006, he was approached by a head hunter and enticed to apply for the number two position at TransForce, one of Canada's largest freight forwards. B was candid enough with the head-hunter in explaining his interest in the job as being linked to what he saw the probable suppression of the above-mentioned dual presidency in the very near future. He saw his Co-President colleague being the likely winner of the ensuing "beauty contest", given the latter's particular experience in the pharmaceutical industry. Indeed, B was prescient in his evaluation of the likely outcome. Matters didn't stop there, however.

Within days of the announcement of the upcoming organisational changes, the German parent received an anonymous e-mail alleging misappropriation of substantial funds during B's watch. B and two others were asked to stay away from work – in effect, a suspension with pay – in order to protect the integrity of the ensuing inquiry. B carried on his negotiations with TransForce and its recruiter without divulging the e-mail, the inquiry or his suspension. Within days, the inquiry had cleared B and his other senior colleagues of any and all wrongdoing. Indeed, as testimony would show at trial, the two other of B's colleagues who were suspended were immediately reinstated after the inquiry was concluded, and were still at the Ratiopharm, enjoying the full confidence of the German parent, when the matter came before the Superior Court many months later. On the other hand, while as a result of the inquiry all suspended executives were retroactively reinstated, without loss or prejudice whatsoever, B advised his former employer that he would be leaving to seek alternate employment with TransForce in view of the altered and diminished responsibilities brought about by the cancellation of the Co-Presidency. He also invoked his right to a very substantial severance package set out in his employment contract. Five (5) days after the German parent concluded that B and his colleagues were entirely without blame and that the e-mail that was anonymously sent was entirely bogus and without foundation, B signed on with TransForce. He began work on October 10.

On November 1, an anonymous e-mail, almost identical to the one sent to the German parent of Ratiopharm, was sent to TransForce. Immediate inquiries were made first with the head hunter and then with...