• Recruitment

  November 15, 2019

Discrimination based on Citizenship: New HRTO Decision Addresses the Convergence of Immigration and Employment Law

UPDATE: In a 2-1 decision, the majority of the Divisional Court of Ontario (the “Court”) overturned a Human Rights Tribunal of Ontario (“Tribunal”) decision which determined that permanent residency is intrinsically included under the protected ground of citizenship.

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In Imperial Oil Limited v Haseeb, 2023 ONCA 364, the Ontario Court of Appeal unanimously restored the decision of the Human Rights Tribunal of Ontario which found that Imperial Oil discriminated against a job applicant by requiring proof of Canadian citizenship or permanent residency.

This was a reversal of the Ontario Supreme Court decision in Imperial Oil Limited and Haseeb, 2021 ONSC 3868, in which the Court overturned the Tribunal’s determination.

The Court of Appeal agreed with the HRTO’s original ruling, which found an employer to have discriminated based on citizenship because of a pre-employment requirement that the candidate be able to work in Canada on a “permanent basis”.  Specifically, the Tribunal found that the requirement to be able to work in Canada on a permanent basis can amount to discrimination based on citizenship. While the Ontario Code does not contain a definition of citizenship, the Tribunal determined that the Ontario Code contemplated that discrimination would arise where there existed a “requirement or consideration that distinguished among individuals on the basis of either “Canadian citizenship”, “permanent residency” status or “domicile in Canada with intention to obtain citizenship”.” Because of this finding, the Tribunal determined that hiring practices and interview screening processes of classifying individuals as “eligible” and “ineligible” based on the ability to work in Canada on a “permanent basis” amounted to discrimination. The Court of Appeal stated that the purpose behind including “citizenship” as a protected ground was to ensure that individuals eligible to work in Canada under federal immigration law were treated equally.

The employer in this case had interviewed engineering candidates for an entry-level position. The employer had a practice throughout its screening process to inquire into the candidate’s ability to work in Canada on a permanent basis. The candidate, and Applicant in the HRTO claim, was an international engineering student. The Applicant held a student work permit which permitted him to work on campus part time and full time during breaks between academic terms. Upon graduation, he would be eligible to apply for a post graduate work permit (“PGWP”). The PGWP would have permitted him to work full-time for any employer in Canada for a period of three years. The candidate anticipated that he would be able to obtain permanent residence (“PR”) status within those three years. The candidate was interviewed. At the time of the interviews, he misrepresented his work status to the employer and claimed that he had an ability to work in Canada on a permanent basis. The candidate was offered the position, subject to the condition that he provide proof of his eligibility to work in Canada permanently. When he failed to provide such proof, the job offer was withdrawn.

The employer asserted that it was the candidate’s dishonesty during the interview process that led to the job offer being rescinded. The candidate responded that the Tribunal was required to take into account the fact that the root of his dishonesty was tied to the pre-employment requirement to demonstrate his ability to work in Canada permanently. The Tribunal agreed with the candidate and determined that “[a]ny consideration of the applicant’s dishonesty must be viewed in context: he misrepresented his eligibility to work permanently in order not to be categorized by the employer as “ineligible” for a permanent position before his skills and experience were evaluated by the employer”.

The employer also argued that the requirement for candidates to be eligible for permanent residency amounted to a bona fide occupational requirement, a requirement that is necessary for the performance of the job. The Tribunal rejected this argument, on the basis that the employer’s hiring policy was directly discriminatory in that it effectively imposed an outright ban on hiring international candidates. The Tribunal noted that a bona fide occupational requirement defence is only available in instances where the discrimination experienced is the result of the application of a neutral practice or policy – in other words, indirect discrimination. The Court of Appeal agreed, noting that if an employer were to determine citizenship to be a bona fide occupational requirement, it would be contrary to the purpose of federal immigration law and programs like the PGWP.

Employers should consider reviewing their hiring policies in light of this recent Ontario decision and be cognizant of possible claims of discrimination based on citizenship.

Information provided by Mathews Dinsdale & Clark LLP. The information provided in this article is necessarily of a general nature and must not be regarded as legal advice. For more information about Mathews Dinsdale & Clark LLP, please visit mathewsdinsdale.com.

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