** Respondent Cognos advertised an accounting position.
** Appellant already had a good job, but applied and got an interview.
** Respondent said the job was associated with a big project, even though project had yet to secure funding.
** Appellant moved to Ottawa.
** 18 months later, the Respondent terminated the Appellant’s employment.
** Appellant sued for negligent misrepresentation.
At trial: Yes, there was a "special relationship" and there was negligent misrepresentation.
On appeal: upheld trial decision .
Should the Hedley Byrne test apply to representations made by an employer to a prospective employee in the course of an interview?
The Hedley Byrne test for negligent misrepresentation applies to representations made by an employer to a prospective employee in the course of an interview.
MAJORITY 1: The tort here was independent of the contract and the liability was not limited by an exclusion clause in the contract
MAJORITY 2 (Iacobucci): Applied the Hedley Byrne test, which has 5 general requirements:
** 1. There must be a duty of care based on a “special relationship” between the representor and the representee.
** 2. The representation in question must be untrue, inaccurate, or misleading.
** 3. The representor must have acted negligently in making said misrepresentation.
** 4. The representee must have relied in a reasonable manner, on said negligent misrepresentation.
** 5. The reliance must have been detrimental to the representee in the sense that damages resulted.
** 2, 4 and 5 were not met here.
DISTINGUISHABLE FROM BG CHECO:
** In BG Checo, there was a misrepresentation as a clause in the contract
** Concurrency question:
*** In BG Checo, there was an impermissible concurrent liability in tort and contract (an exception to the general rule of concurrency)
*** In the case at bar: there is no concurrency
**** Plaintiff argument here is NOT: that Cognos negligently misrepresented the amount of time he would be working on the project or the conditions under which his employment could be terminated (i.e. that Cognos breached a common law duty of care by negligently misrepresenting his security of employment with Cognos)
**** Argument IS: Cognos negligently misrepresented the nature and existence of the employment opportunity being offered
**** Therefore: “it is the existence, or reality, of the job being interviewed for, not the extent of the appellant’s involvement therein, which is at the heart of this tort action.” In the agreement, there is no express provision dealing with the respondent’s obligations with respect to the nature and existence of the project.
FURTHER, IN THE CASE AT BAR
** Cognos recognizes that it owed a duty of car to interviewees not to make negligent misreps
** It was foreseeable that the appellant would rely on the information given during the interview in order to make career decision -- it was reasonable reliance
** The Cognos interviewer didn’t make any caveats
** The agreement signed 2 weeks later did not amount to a valid disclaimer
Decision in favour of Appellant: The Respondent’s manager had acted carelessly in making statements during the Appellant’s job interview.