Teresa Scassa - Blog

Ontario is currently holding public hearings on a new bill which, among other things, introduces a provision regarding the use of AI in hiring in Ontario. Submissions can be made until February 13, 2024. Below is a copy of my submission addressing this provision.

The following is my written submission on section 8.4 of Bill 149, titled the Working for Workers Four Act, introduced in the last quarter of 2023. I am a law professor at the University of Ottawa. I am making this submission in my individual capacity.

Artificial intelligence (AI) tools are increasingly common in the employment context. Such tools are used in recruitment and hiring, as well as in performance monitoring and assessment. Section 8.4 would amend the Employment Standards Act to include a requirement for employers to provide notice of the use of artificial intelligence in the screening, assessment, or selection of applicants for a publicly advertised job position. It does not address the use of AI in other employment contexts. This brief identifies several weaknesses in the proposal and makes recommendations to strengthen it. In essence, notice of the use of AI in the hiring process will not offer much to job applicants without a right to an explanation and ideally a right to bring any concerns to the attention of a designated person. Employees should also have similar rights when AI is used in performance assessment and evaluation.

1. Definitions and exclusions

If passed, Bill 149 would (among other things) enact the first provision in Ontario to directly address AI. The proposed section 8.4 states:

8.4 (1) Every employer who advertises a publicly advertised job posting and who uses artificial intelligence to screen, assess or select applicants for the position shall include in the posting a statement disclosing the use of the artificial intelligence.

(2) Subsection (1) does not apply to a publicly advertised job posting that meets such criteria as may be prescribed.

The term “artificial intelligence” is not defined in the bill. Rather, s. 8.1 of Bill 149 leaves the definition to be articulated in regulations. This likely reflects concerns that the definition of AI will continue to evolve along with the rapidly changing technology and that it is best to leave its definition to more adaptable regulations. The definition is not the only thing left to regulations. Section 8.4(2) requires regulations to specify the criteria that will allow publicly advertised job postings to be exempted from the disclosure requirement in s. 8.4(1). The true scope and impact of s. 8.4(1) will therefore not be clear until these criteria are prescribed in regulations. Further, s. 8.4 will not take effect until the regulations are in place.

2. The Notice Requirement

The details of the nature and content of the notice that an employer must provide are not set out in s. 8.4, nor are they left to regulations. Since there are no statutory or regulatory requirements, presumably notice can be as simple as “we use artificial intelligence in our screening and selection process”. It would be preferable if notice had to at least specify the stage of the process and the nature of the technique used.

Section 8.4 is reminiscent of the 2022 amendments to the Employment Standards Act which required employers with more than 25 employees to provide their employees with notification of any electronic monitoring taking place in the workplace. As with s. 8.4(1), above, the main contribution of this provision was (at least in theory) enhanced transparency. However, the law did not provide for any oversight or complaints mechanism. Section 8.4(1) is similarly weak. If an employer fails to provide notice of the use of AI in the hiring process, then either the employer is not using AI in recruitment and hiring, or they are failing to disclose it. Who will know and how? A company that is found non-compliant with the notice requirement, once it is part of the Employment Standards Act, could face a fine under s. 132. However, proceedings by way of an offence are a rather blunt regulatory tool.

3. A Right to an Explanation?

Section 8.4(1) does not provide job applicants with any specific recourse if they apply for a job for which AI is used in the selection process and they have concerns about the fairness or appropriateness of the tool used. One such recourse could be a right to demand an explanation.

The Consumer Privacy Protection Act (CPPA), which is part of the federal government’s Bill C-27, currently before Parliament, provides a right to an explanation to those about whom an automated decision, prediction or recommendation is made. Sections 63(3) and (4) provide:

(3) If the organization has used an automated decision system to make a prediction, recommendation or decision about the individual that could have a significant impact on them, the organization must, on request by the individual, provide them with an explanation of the prediction, recommendation or decision.

(4) The explanation must indicate the type of personal information that was used to make the prediction, recommendation or decision, the source of the information and the reasons or principal factors that led to the prediction, recommendation or decision.

Subsections 63(3) and (4) are fairly basic. For example, they do not include a right of review of the decision by a human. But something like this would still be a starting point for a person seeking information about the process by which their employment application was screened or evaluated. The right to an explanation in the CPPA will extend to decisions, recommendations and predictions made with respect to employees of federal works, undertakings, and businesses. However, it will not apply to the use of AI systems in provincially regulated employment sectors. Without a private sector data protection law of its own – or without a right to an explanation to accompany the proposed s. 8.4 – provincially regulated employees in Ontario will be out of luck.

In contrast, Quebec’s recent amendments to its private sector data protection law provide for a more extensive right to an explanation in the case of automated decision-making – and one that applies to the employment and hiring context. Section 12.1 provides:

12.1. Any person carrying on an enterprise who uses personal information to render a decision based exclusively on an automated processing of such information must inform the person concerned accordingly not later than at the time it informs the person of the decision.

He must also inform the person concerned, at the latter’s request,

(1) of the personal information used to render the decision;

(2) of the reasons and the principal factors and parameters that led to the decision; and

(3) of the right of the person concerned to have the personal information used to render the decision corrected.

The person concerned must be given the opportunity to submit observations to a member of the personnel of the enterprise who is in a position to review the decision.

Section 12.1 thus combines a notice requirement with, at the request of the individual, a right to an explanation. In addition, the affected individual can “submit observations” to an appropriate person within the organization who “is in a position to review the decision”. This right to an explanation is triggered only by decisions that are based exclusively on automated processing of personal information – and the scope of the right to an explanation is relatively narrow. However, it still goes well beyond Ontario’s Bill 149, which creates a transparency requirement with nothing further.

4. Scope

Bill 149 applies to the use of “artificial intelligence to screen, assess or select applicants”. Bill C-27 and Quebec’s law, both referenced above, are focused on “automated decision-making”. Although automated decision-making is generally considered a form of AI (it is defined in C-27 as “any technology that assists or replaces the judgment of human decision-makers through the use of a rules-based system, regression analysis, predictive analytics, machine learning, deep learning, a neural network or other technique”) it is possible that in an era of generative AI technologies, the wording chosen for Bill 149 is more inclusive. In other words, there may be uses of AI that are not decision-making, predicting or recommending, but that can still used in screening, assessing or hiring processes. However, it should be noted that Ontario’s Bill 149 is also less inclusive than Bill C-27 or Quebec’s law because it focuses only on screening, assessment or selecting applicants for a position. It does not apply to the use of AI tools to monitor, evaluate or assess the performance of existing employees or to make decisions regarding promotion, compensation, retention, or other employment issues – something which would be covered by Quebec’s law (and by Bill C-27 for employees in federally regulated employment). Although arguably the requirements regarding electronic workplace monitoring added to the Employment Standards Act in 2022 might provide transparency about the existence of electronic forms of surveillance (which could include those used to feed data to AI systems), these transparency obligations apply only in workplaces with more than 25 employees, and there are no employee rights linked to the use of these data in automated or AI-enabled decision-making systems.

5. Discriminatory Bias

A very significant concern with the use of AI systems for decision-making about humans is the potential for discriminatory bias in the output of these systems. This is largely because systems are trained on existing and historical data. Where such data are affected by past discriminatory practices (for example, a tendency to hire men rather than women, or white, able-bodied, heterosexual people over those from equity-deserving communities) then there is a risk that automated processes will replicate and exacerbate these biases. Transparency about the use of an AI tool alone in such a context is not much help – particularly if there is no accompanying right to an explanation. Of course, human rights legislation applies to the employment context, and it will still be open to an employee who believes they have been discriminated against to bring a complaint to the Ontario Human Rights Commission. However, without a right to an explanation, and in the face of proprietary and closed systems, proving discrimination may be challenging and may require considerable resources and expertise. It may also require changes to human rights legislation to specifically address algorithmic discrimination. Without these changes in place, and without adequate resourcing to support the OHRC’s work to address algorithmic bias, recourse under human rights legislation may be extremely challenging.

6. Conclusion and Recommendations

This exploration of Bill 149’s transparency requirements regarding the use of AI in the hiring process in Ontario reveals the limited scope of the proposal. Its need for regulations in order take effect has the potential to considerably delay its implementation. It provides for notice but not for a right to an explanation or for human review of AI decisions. There is also a need to make better use of existing regulators (particularly privacy and human rights commissions). The issue of the use of AI in recruitment (or in the workplace more generally in Ontario) may require more than just tweaks to the Employment Standards Act but may also demand amendments to Ontario’s Human Rights Code and perhaps even specific privacy legislation at the very least aimed at the employment sector in Ontario.

Recommendations:

1. Redraft the provision so that the core obligations take effect without need for regulations or ensure that the necessary regulations to give effect to this provision are put in place promptly.

2. Amend s. 8.4 (1) to either include the elements that are required in any notice of the use of an AI system or provide for the inclusion of such criteria in regulations (so long as doing so does not further delay the coming into effect of the provision).

3. Provide for a right to an explanation to accompany s. 8.4(1). An alternative to this would be a broader right to an explanation in provincial private sector legislation or in privacy legislation for employees in provincially regulated sectors in Ontario, but this would be much slower than the inclusion of a basic right to an explanation in s. 8.4. The right to an explanation could also include a right to submit observations to a person in a position to review any decision or outcome.

4. Extend the notice requirement to other uses of AI to assess, evaluate and monitor the performance of employees in provincially regulated workplaces in Ontario. Ideally, a right to an explanation should also be provided in this context.

5. Ensure that individuals who are concerned that they have been discriminated against by the use of AI systems in recruitment (as well as employees who have similar concerns regarding the use of AI in performance evaluation and assessment) have adequate and appropriate recourse under Ontario’s Human Rights Code, and that the Ontario Human Rights Commission is adequately resourced to address these concerns.