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Negligent misrepresentations during the interview process

When an employer negligently or deliberately misleads, or even lies to a prospective employee to induce him or her to accept an offer an employment, the employer can be held liable for negligent misrepresentations. Courts have held that both employers and employees owe a duty of care to each other during the recruitment process. The British Columbia Court of Appeal decision in Feldstein v. 364 Northern Development Corporation provided employers with a reminder that negligent misrepresentation during the hiring process can prove to be a costly mistake.

In Feldstein, a prospective employee for an engineering position was misled about the eligibility requirements for the company’s long-term disability benefits plan. Given that the prospective employee suffered from cystic fibrosis, the long-term disability benefits were of critical importance in deciding whether to accept the job. The brochure explaining the benefits plan that was given to the Feldstein contained a ‘proof of good health’ clause. Feldstein inquired about the clause given the nature of his health issues. He was assured by the person that had interviewed him for the position that Feldstein would qualify for LTD benefits after completing three months of working for the company. Feldstein accepted the position on this basis and signed an employment contract.

Shortly after accepting the position, Feldstein’s health worsened and his application for long-term disability benefits (LTD) was only partially approved. Feldstein was considered eligible for only $1,000 per month in LTD benefits instead of the full coverage $5,000 per month. After applicable deductions, these benefits amounted to $36.56 per month. Feldstein sued the company for negligent misrepresentation.

At trial, the judge found that the company had negligently misrepresented the eligibility criteria for the company’s LTD benefits plan. Feldstein was awarded $83,336.80 in compensation for his lost LTD benefits and an additional $10,000 for aggravated damages. On appeal, the court overturned only $10,000 in aggravated damages. In short, the decision emphasizes that employers must be acutely aware of the representations made on behalf of the company by those individuals responsible for recruitment and interviewing of prospective employees. Employees may be able to sue and be compensated when information shared during an interview turns out to be inaccurate.

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De Bousquet PC Barristers and Solicitors

Civil Litigation Lawyers at De Bousquet PC Barristers and Solicitors
De Bousquet law offers experienced counsel and representation in multiple aspects of employment law, labour relations, commercial law and civil litigation. Jean-Alexandre De Bousquet, founder of the firm, interned for the Canadian Centre for International Justice, worked for an Ottawa law firm and pursued a career with the Attorney General of Ontario. In 2014, Jean-Alexandre was named one of Ontario's "leading experts" in human rights law by Legal Action Magazine. Jean-Alexandre handles cases related to wrongful dismissal, workplace discrimination, breach of contract, fraud and commercial disputes. Jean-Alexandre is fully fluent in French and English and represents clients before courts and tribunals using both official languages.Before the practice of law, Jean-Alexandre was a journalist at the CBC for 3 years. Other notable achievements include employment with the Canada Research Chair on Native Peoples and Legal Diversity, the Canadian Research Chair on Metis Identity and the Urban League, a U.S. civil rights organization. Jean-Alexandre has also published articles in prominent academic journals and presented papers at international conferences in Canada and the U.S.Read more here
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