What are an employer’s obligations towards a potential employee in an interview? If the interviewer is not yet an employer under the law and the interviewee is not yet an employee what happens when something goes wrong during the interview process?
Legislation already regulates certain aspects of employers’ and employees’ rights and obligations during the pre-employment process. For instance, the Ontario Human Rights Code prohibits discrimination against potential employees on the basis of prohibited grounds (i.e., race, sex, sexual orientation, age, disability, etc.). This means that employers cannot discriminate against prospective candidates in an interview by asking questions relating to these prohibited grounds of discrimination. They are also prohibited from including discriminatory criteria in job postings or advertisements.
However, in a recent case, an Ontario court had to decide what happens when a potential employee is injured on the employer’s property during the interview process.
Facts and Background
In 2009, the plaintiff had applied for a position at the defendants’ garage operation, which operated a U-Haul agency in Kanata, Ontario. She applied for a customer service representative position and one of the job requirements was to hitch trailers to customers’ vehicles.
The plaintiff went to a first interview, in which she was asked about weight handling and was told that the job would involve hooking trailers to vehicles.
At the time, the plaintiff was a 54-year old female. She was 5 feet 4 inches tall and self-described as weighing between 120 and 125 pounds. In response to questions about weight handling, she responded that she believed she could handle the weight required.
The plaintiff was asked back for a second interview. As part of the interview, she was asked to hook a trailer up to a truck. She was provided with work gloves, which were too big for her, and no other equipment. She was also given instructions on how to perform the task.
During this attempt, the plaintiff says she heard a pop; when the interviewer asked her if she was okay, she responded, “I don’t think I can do this job.” She refused the interviewer’s offer to call an ambulance; instead, she took a Tylenol and drove home.
She was subsequently diagnosed as having suffered a burst fracture of her L4 vertebrae.
The plaintiff sued the defendants for damages and claimed that they a) owed her a duty of care and b) breached that duty by unreasonably exposing her to the risk of injury. The defendants’ response was that what happened was an unfortunate accident, for which no one bears civil liability.
At trial, the judge acknowledged that there was no dispute that the plaintiff had been injured when she attempted to lift the trailer at the defendants’ premises and that the attempted lift was the proximate cause of her injury. The judge determined that the question remaining was whether her injury had resulted from a breach of a duty owed to her by the defendants.
The judge set out to determine whether the defendants owed the plaintiff a duty of care and whether the defendants’ behaviour breached that standard of care.
At the outset of the decision, the judge stated “[t]his is an unusual case.”
Duty of Care
With regard to the first question, the judge determined that the defendants owed a duty of care to the plaintiff. While there was no formalized employee-employer relationship, the judge determined that the circumstances fell squarely within the scope of an occupiers’ duty under the Occupiers’ Liability Act and the duty owed was to “take such care for her safety as was reasonable in all of the circumstances to ensure that she would be reasonably safe while on the premises, including her participation in the activities being carried on there.”
Standard of Care
The question remaining was whether the defendants had breached the standard of care owed to the plaintiff.
After a review of the facts, expert evidence and standard of care elements, the judge found that the defendants had not breached the standard of care owed to the plaintiff. He found that “[i]t is not clear to me that the defendants’ conduct fell below the requisite standard of care, whether as an occupier or a quasi-employer. They are not to be held to a standard of perfection.” In addition, he found that the plaintiff knew and understood that the job involved lifting trailers. She was aware it involved heavy lifting; by attempting to do so during the interview, she was, in fact, willing to assume the risk.
In conclusion, the judge stated “What happened […] was an accident. A very unfortunate one. But an accident nonetheless.”
This case raised an interesting question regarding the legal recourses available in what may be called a quasi-employment relationship. The plaintiff and defendants were not bound by employment or labour legislation, yet the injury occurred on the employer’s premises and the plaintiff performed the task in the hopes of obtaining employment. Additionally, the plaintiff would not be eligible for workers’ compensation, as the injury did not occur in the course of employment.
Despite the outcome of this particular case, employers should be aware that any injury sustained by a non-employee on their premises could result in an award of damages if the court finds they have breached the standard of care under the Occupiers’ Liability Act.
For more information on this matter and other employment questions contact the offices of Mallins Law. We are a boutique firm focused solely on employment law and labour relations. We are passionate about helping employees as well as both unionized and non-unionized employers through some of the biggest legal challenges they may face. Contact us online or by phone at 647.792.0310 to schedule a consultation.