Loss of Chance to be Hired

In circumstances where the applicant has been deprived of the opportunity to be hired, the Tribunal will conduct a review to determine if there was a reasonable possibility that the applicant would have been hired, save the adverse conduct and if so, it will then proceed to assess the degree of such probability.

In such a context, the decision maker will make an assessment of the “reasonable possibility” that the applicant would have been hired. ¹

This is a concept which is similar to how the prospective loss should be determined.

Both of the above decisions noted that there were two alternative approaches to this issue. One test was whether there was a “serious possibility” which must be established. The contrary view was to require that the applicant show that he would have been hired on a balance of probabilities.^{2 3}

The issue of the correct test to be applied in the event of a denial of an opportunity, in this case a promotion was determined to be the lesser standard of a “serious possibility of success”, to which contingency risk factors were then applied. ⁴

This standard was doubted by the Federal Court as correct, but the issue was not argued before it. ⁵

This issue arose again in a case in which a candidate for the RCMP had been adversely treated in a cadet training program due to religion and ethnic origin. The “serious possibility” standard was applied to determine that he would have passed the training. ⁶

1. 2007 decision in Seguin v Great Blue Heron Charity Casino (Scott) in which the Ontario Tribunal concluded that there was a fifty percent chance that the applicant, The Divisional Court set aside the remedy decision, not upon its merits ; Dantu v. North Vancouver District Fire Department (1986), 8 C.H.R.R. D/3649; McKinnon v. Ontario (Ministry of Correctional Services), [2007] O.H.R.T.D. No. 5; April 2013 decision of Rocha v Pardons and Waivers Canada (Keene), also set at 50%.
2. DeSouza v 1469328 Ontario Inc. (Joachim). Neither approach was concluded as correct in the Desouza decision itself.
3. See also  Davis v City of Toronto (Liang). A finding was made that the applicant was not treated fairly due to his disability but no lost income claim was allowed as it was accepted that he would not have been hired in any event.
4. Chopra at CHRT. He was then awarded one-third of the salary differential. This was for the interim position. It then determined that he would have met the same test as a permanent hire, yet discounted the award by two-thirds. The time period of the loss was 6 years.
5. The Federal Court of Appeal took issue with the conclusion in law that a “mere but serious possibility” of attaining the new position was the correct test to apply and noted that the genesis of this proposition, which was stated to originate from Morgan v Canada, [1992] 2 FC 401, 85 DLR (4th) 473 was not reliable as it came without a clear majority opinion on this issue.
6. Tahmourpour v RCMP. One of the remedies then granted was the right to enter the next training program. The tribunal noted the adverse comments as made by the FCA in Chopra but felt bound to apply this test.