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Only Hiring Employees Eligible to Work in Canada on a Permanent Basis is Discrimination on the Basis of Citizenship?

Written by on February 6, 2019 in Employment Law Blog, Focus on Canadian Cases
Frustrated Employee

 

In a landmark decision Haseeb v. Imperial Oil, the Human Rights Tribunal of Ontario recently held that an employer’s hiring policy, which required a job candidate to demonstrate that he was legally eligible to work in Canada on a permanent basis, constituted direct discrimination on the basis of citizenship in violation of the province’s Human Rights Code.

Muhammad Haseeb was an international student at McGill University when he applied for permanent full-time employment as an engineer with Imperial Oil Limited.

Upon graduation, Haseeb would become eligible for a postgraduate work permit for a fixed term of three years, which would permit him to work anywhere and with any employer in Canada. He anticipated that he would attain permanent residency prior to the expiry of this work permit, and planned to settle and work in Canada indefinitely after his graduation.

When he submitted his job application, however, Haseeb was in Canada on a student visa and held neither Canadian citizenship nor permanent residency.

It was Imperial Oil’s policy at that time that all entry-level engineering candidates be eligible to work in Canada on a permanent basis in order to be considered for employment. The company deemed this requirement necessary due to its heavy investment in its new recruits, with the aim of developing lifelong employees. Imperial Oil accordingly required that candidates provide proof of either Canadian citizenship or permanent residency as a condition of its job offers.

At several points in the lengthy selection process, Haseeb was asked by Imperial Oil to confirm his eligibility to work in Canada on a permanent basis. Having learned from more senior students that permanent residency or citizenship was a required criterion for entry-level engineers with Imperial Oil, and concerned that his status would bar him from potential employment, Haseeb falsely confirmed that he was able to work in Canada on a permanent basis.

Haseeb successfully advanced through the interview process—so successfully, in fact, that he was identified as Imperial Oil’s top candidate for recruitment.

He was offered a job with Imperial Oil prior to his graduation, which was conditional on a number of items, including the requirement that he provide proof of his eligibility to work in Canada on a permanent basis by way of a Canadian birth certificate, Canadian citizenship certificate or Canadian certificate of permanent residence.

When Haseeb was unable to provide such proof prior to the deadline set by Imperial Oil, the company rescinded its offer of employment, inviting him to re-apply if he became eligible to work in Canada on a permanent basis in the future.

Haseeb commenced a proceeding with Ontario’s Human Rights Tribunal, claiming discrimination on the basis of citizenship, one of the protected categories specifically enumerated by the Human Rights Code.

Haseeb asserted before the Tribunal that he would be legally qualified to work in Canada at the time he would have been expected to start work, and claimed that it was his intention to gain permanent residency prior to the expiration of his three-year postgraduate work permit. He brought expert evidence to demonstrate that these were reasonable expectations.

Imperial Oil meanwhile argued that it revoked its offer of employment to Haseeb because he had lied in his application. Citing its acceptance of applications for employment from permanent residents as well as citizens, the company submitted that it did not discriminate on the basis of “citizenship” but rather on “immigration status”, something not specifically protected by the Code. Imperial Oil further argued that its permanence requirement was justified as a bona fide occupational requirement given its investment in new recruits. It argued that it would suffer undue hardship if it were to hire Haseeb and invest significant time and money into training him, only to risk losing that investment if his work permit were to expire.

The Tribunal found in favour of Haseeb, concluding that Imperial Oil’s permanence requirement was directly discriminatory on the ground of citizenship.

The Adjudicator expressly rejected Imperial Oil’s argument that Haseeb was attempting to argue discrimination on the basis of “immigration status”, finding that the company’s policy resulted in a direct breach of the Code by creating categories of eligible and ineligible candidates based entirely on their citizenship status. Nor was the Adjudicator persuaded that Imperial Oil had demonstrated that the permanency requirement was either necessary in the circumstances or linked to the essential elements of the work to be performed.

The Adjudicator held that Haseeb’s dishonestly in falsely confirming that he was eligible to work in Canada on a permanent basis was not relevant to a finding of whether or not the Code had been breached. She pointed out that Haseeb misrepresented his eligibility to ensure he was not categorized by Imperial Oil as ineligible before his skills and experience were evaluated by the company. But for the company’s discriminatory requirement, Haseeb would have had no need for a ruse to circumvent it.

Lessons for Employers

This decision sends an important message to Ontario employers that differential treatment on the basis of a person’s citizenship or immigration status will not be tolerated: it is illegal for employers to discriminate on the basis of permanent ability to work in Canada. Employers should review their hiring policies and practices to ensure that they are not excluding candidates based on their immigration or citizenship status. While employers cannot employ an individual who is not legally eligible to work in Canada at all, they must give due consideration to candidates who have work visas or permits which allow them to work in the country on a non-permanent basis.

Lessons for Employees

This case also serves as a reminder for employees in Ontario that they are protected from discrimination on the basis of a wide number of protected grounds, including citizenship, and that this protection applies even prior to the commencement of the employment relationship. If you believe that you have not been hired or have otherwise been denied an employment opportunity on the basis of a protected ground, we recommend that you speak with an employment lawyer about taking steps to enforce your rights.

Minken Employment Lawyers is your source for expert advice and advocacy on today’s employment law issues. Whether you are an employer or an employee, we can help. Contact us to see how.

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