HRTO creates new rule for employers regarding citizenship-based recruitment criteria

In a landmark decision, the Human Rights Tribunal of Ontario (“HRTO”) has found an employer who required job candidates to be either Canadian citizens or permanent residents liable for discrimination contrary to the Human Rights Code (the “Code”).

The case in question is Haseeb v. Imperial Oil Limited, 2018 HRTO 957. It involved an international student at McGill University who applied for an engineering job which would have commenced following his graduation.

Imperial Oil had a policy requiring all entry level engineering candidates be eligible to work in Canada on a permanent basis. This requirement was explained as being necessary due to Imperial Oil’s heavy investment in new workers, with the aim of developing lifelong corporate employees. As a screening tool for permanent eligibility to work in Canada, Imperial Oil typically required candidates provide proof of either Canadian citizenship or permanent residency as a condition of its job offers.

Haseeb testified before the HRTO that he had heard from fellow students about Imperial Oil’s permanency requirement and was concerned that this would bar him from potential employment. While Haseeb would be qualified to work on a full-time basis post-graduation pursuant to a postgraduate work permit, he did not hold either Canadian citizenship or permanent residency.

Despite this, Haseeb applied to work for Imperial Oil. He lied when asked about his residency status and progressed through the interview process, eventually being identified as Imperial Oil’s top candidate for recruitment. He was subsequently offered employment, subject to proof of his permanent work status. It was only at this point that Haseeb disclosed his deception and the job offer was revoked.

Based on these facts, Haseeb commenced a proceeding with the HRTO claiming citizenship discrimination. Citizenship is one of the protected employment categories specifically enumerated by the Code, albeit one that is rarely the subject of litigation.

The Tribunal Case

Before the HRTO, Haseeb stated that at the time he would have been expected to start work, he was legally qualified to work in Canada. It was further his intention to gain permanent residency prior to the expiration of his three-year postgraduate work permit. Haseeb called expert evidence to demonstrate this was a reasonable expectation on his part.

By contrast, Imperial Oil made three arguments: 1) Haseeb had lied in his job application and this was the reason for the revocation of his job offer; 2) as permanent residency was accepted along with Canadian citizenship, Imperial Oil did not discriminate on the basis of “citizenship” but rather “immigration status,” something not specifically protected by the Code; and 3) it was reasonable to require permanent ability to work in Canada due to future corporate investment in new employees.

The Tribunal sided with Haseeb. Specifically, Associate Chair Grant wrote:

The Tribunal’s finds that the “permanence requirement” is discrimination based on the ground of “citizenship”…More specifically, in the Tribunal’s view, IO’s requirement amounted to a direct breach of the Code when it distinguished among job candidates who were eligible to work in Canada on the basis of citizenship and created categories of “eligible” and “ineligible” for progressing through IO’s screening process…[T]he fact that IO’s requirement distinguished on the basis of “Canadian citizenship” and “permanent residence” does not change the analysis to being a distinction based on “immigration status”. It is sufficient that IO’s requirement cited “Canadian citizenship” as a criterion to engage the prohibited ground of “citizenship” the Code. [emphasis added]

Associate Chair Grant was also not persuaded that Imperial Oil had demonstrated the permanency requirement was either necessary in the circumstances or linked to the essential elements of the work to be performed.

With respect to Haseeb’s deception about his residency status, the HRTO did not grant Imperial Oil much sympathy, stating “but for” the company’s discrimination, Haseeb “would have no need for a ruse to circumvent the requirement.”

Lessons for Employers

This case was hard fought by Imperial Oil and may well be subject to judicial review in future. That said, it is our view that the underlying decision is well founded. As of now, it is illegal for employers in Ontario to discriminate based on permanent ability to work in Canada.

To be clear, it is still both advisable and appropriate to confirm that an employee is legally eligible to work in Canada at the time of hire. But the inquiry should stop there.

It is also notable that Imperial Oil was criticized by the HRTO for having its permanency requirement listed in job postings and written application forms. These amounted to public announcements of an intention to discriminate and constituted separate breaches of the Code. As such, employers should actively review their recruitment materials and ensure they comply with this new guidance from the HRTO.

This article was originally published on August 17, 2018 at First Reference Talks.

Vey Willetts LLP is an Ottawa-based employment and labour law boutique that provides timely and cost-effective legal advice to help employees and employers resolve workplace issues in the National Capital Region and across Ontario. To speak with an employment lawyer, contact us at: 613-238-4430 or info@vwlawyers.ca