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In a previous post, we discussed various employer obligations to prospective employees with respect to human rights considerations. Not long after, the Human Rights Tribunal of Ontario issued a precedent-setting decision that found an employer in violation of the Ontario Human Rights Code (the “Code“) with respect to its hiring practices and ordered a hefty damages award in favour of the applicant.

Background of the Case

The applicant was a mechanical engineering student at McGill University in Montreal who applied for a position with the respondent Imperial Oil Company. He was an international student with a visa that granted him the right to work on-campus during the academic year and on breaks between terms. Upon graduating, he was eligible for a post-graduate work permit (PGWP) that would allow him to obtain full-time employment anywhere in Canada for a period of three years. He expected that he would be able to obtain permanent residency status within the three-year period, allowing him to settle down in Canada indefinitely.

He applied for a role as a Project Engineer with Imperial Oil. He had learned from his peers that Imperial Oil required non-citizen applicants to have already obtained permanent residency status in Canada in order to be considered for a role. As a result, he provided false answers throughout the interview process whenever he was questioned about his eligibility to obtain permanent, full-time work in Canada.

The applicant was the top choice for the role and was offered the job on the condition that he provide evidence of his ability to work in Canada on a permanent basis, such as a birth certificate, citizenship card or evidence of permanent residency. He was unable to do so, and so the offer was rescinded.

He received a letter stating that should he become eligible for permanent work in Canada, he should reapply to the company. The applicant commenced a proceeding before the HRTO claiming Imperial Oil had discriminated against him on the basis of citizenship.

Discrimination Based on Citizenship

Before the HRTO, the applicant set out the fact that he was eligible to work in Canada at the time the offer was made, and that he expected to be able to work indefinitely after being granted permanent residency status. He felt that he would have become a permanent resident prior to the expiration of the PGWP visa, so he would have been able to continue working for Imperial Oil uninterrupted. He brought in an expert witness to testify to the likelihood and reasonableness of this plan.

Imperial Oil raised three defences to the claim of citizenship discrimination; specifically:

  1. The applicant had demonstrated dishonesty throughout the application and interview process;
  2. The company did not discriminate based on citizenship, as it welcomed employees with permanent residency status. If there was discrimination, it was on the basis of immigration status, which was not a protected ground under the Code; and
  3. It is reasonable for an employer to require the ability to work in Canda indefinitely due to the significant investment a new employee requires.

The HRTO disagreed with point two above, finding that discrimination based on immigration status was tantamount to discrimination based on citizenship. Distinguishing potential candidates based on their eligibility to work permanently in Canada was a direct violation of the Code. Further, the tribunal held that permanent residency was not an essential requirement to perform the role in question.

With respect to the applicant’s dishonesty during the interview process, the HRTO held that were it not for Imperial Oil’s discriminatory policies, the applicant would have had no reason to lie.

Pending any judicial review, this case has a significant impact on any employer who has used immigration or citizenship status as a basis for selecting or ranking job candidates. Any employer who has done so in the past would be advised to reconsider and make changes to its policies. It is still wise to enquire about a candidate’s legal entitlement to work in Canada at the time of hiring, however inquiries beyond that point run the risk of violating the candidate’s human rights under the Code.

At Baker & Company, we take the time to meet with you and understand your unique needs in order to offer solutions to the diverse problems you may encounter in the workplace. The highly skilled Toronto employment lawyers at Baker & Company can review your employment policies and ensure that you are meeting your legal obligations while addressing and mitigating risk. Protect yourself, your workplace, and your employees. We rely on our broad base of experience and expertise to provide clear, pragmatic legal advice, and representation in litigation.  Call us at 416-777-0100 or contact us online for a consultation.

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