Employer Requiring Candidate to Be "Permanently" Eligible to Work in Canada Was Discriminatory, Court Rules
In a major decision, the Ontario Court of Appeal ("ONCA") recently held that an employer discriminated against a job applicant based on citizenship by withdrawing his job offer because he was not permanently eligible to work in Canada. In Imperial Oil Limited v. Haseeb [Imperial Oil], the ONCA allowed Muhammad Haseeb's appeal and reinstated the Human Rights Tribunal of Ontario's earlier decision which had previously been overturned by a lower court, thereby awarding Haseeb over $120,000 in damages for discrimination.
The Human Rights Tribunal of Ontario (ONCA) held that Imperial Oil Limited ("Imperial") discriminated against Haseeb on the basis of citizenship when it withdrew the job offer due to him not being permanently eligible to work in Canada, because his lack of Canadian citizenship was a factor in that decision, even though permanent residents could meet this requirement as non-Canadian citizens.
Imperial Oil is highly significant because it means that Ontario employers can no longer require job candidates to be permanently eligible to work in Canada, which is often required in order to protect employers' substantial investment in training new employees. However, it is widely anticipated that Imperial will try to appeal this decision to the Supreme Court of Canada, such that this could remain an unsettled area of law until this case is finally resolved.
Haseeb was an international student in his final semester of a mechanical engineering degree at McGill University when he applied for an entry-level engineering job with Imperial in Fall 2014, which would begin after he graduated. Notably, Haseeb was a citizen of Pakistan at this time, and he did not have citizenship or permanent residency in Canada. Nonetheless, Haseeb was on track to graduate, and he would be entitled to a Post-Graduate Work Permit ("PGWP") upon graduation. This PGWP would allow Haseeb to work full-time for any employer anywhere in Canada for up to three years under a federal immigration program that is intended to encourage skilled workers to settle in Canada, including by becoming permanent residents and then Canadian citizens.
Imperial's job posting for the engineering role stated that applicants were required to be "permanently eligible to work in Canada", and that they must prove this with a birth certificate, citizenship certificate, or certificate of permanent residence. Haseeb falsely indicated that he was permanently eligible to work in Canada in his job application because he feared that he would not be considered otherwise. Imperial repeatedly asked Haseeb and the other job candidates whether they met this requirement during the hiring process, and Haseeb answered this question untruthfully each time.
Ultimately, Haseeb was the top candidate for the engineering role and Imperial offered it to him in December 2014, conditional upon him providing proof that he was "eligible to work in Canada on a permanent basis". Haseeb then advised Imperial that he was an international student, that he would need to work on a PGWP which would be valid for three years, and that he intended to settle permanently in Canada. Moreover, Haseeb asked if Imperial could make an exception to the permanent eligibility requirement. Imperial sent Haseeb a letter in response which stated that his job offer was being withdrawn because he was not permanently eligible to work in Canada. Haseeb subsequently graduated in January 2015 and obtained his PGWP in February 2015.
Haseeb then filed a human rights application against Imperial alleging that it had discriminated against him on the basis of citizenship by requiring him to be a Canadian citizen or permanent resident in order to be hired. In response, Imperial argued that the permanent eligibility requirement did not constitute discrimination based on citizenship because of the exception for permanent residents. Further, Imperial argued that it withdrew Haseeb's job offer because he lied about being permanently eligible to work in Canada, and not because he did not meet the requirement itself.
The Human Rights Tribunal of Ontario's Decision
The HRTO held that Imperial had discriminated against Haseeb on the basis of citizenship and awarded him over $120,000 for the lost wages and injury to his feelings, dignity, and self-respect. In reaching this conclusion, the HRTO held that the permanent eligibility requirement directly discriminated against non-Canadian citizens, even though it did not discriminate against all non-Canadian citizens, and that Haseeb's citizenship was a factor in Imperial withdrawing the job offer.
Imperial applied to the Divisional Court for judicial review of the HRTO's decision, arguing that the Tribunal's decision was unreasonable and should be set aside.
The Divisional Court's Decision
The Divisional Court ruled in Imperial's favour and overturned the HRTO's decision on the basis that it was unreasonable. This was because, in the court's view, the HRTO effectively treated "permanent residence" as a new ground of discrimination, despite that this is not one of the prohibited grounds of discrimination set out in the Human Rights Code (the "Code"). In particular, the Court held that it was unreasonable for the HRTO to interpret the protected ground of "citizenship" as protecting against discrimination based upon "permanent residence", and it was therefore unreasonable for the HRTO to find that Imperial's requirement discriminated against Haseeb on the basis of citizenship.
Consequently, Haseeb appealed the Divisional Court's decision to the Ontario Court of Appeal.
The Ontario Court of Appeal's Decision
The ONCA ultimately granted Haseeb's appeal because it found that the HRTO's decision was reasonable in light of the applicable law and factual circumstances, and that the Divisional Court failed to review the HRTO's decision properly.
The ONCA began its analysis by holding that the HRTO correctly identified the applicable law for analyzing claims of discrimination under human rights legislation. Namely, the ONCA held that a claimant must first establish a prima facie case of discrimination (i.e., a case that appears to be discriminatory on its face), then the evidentiary burden shifts to the respondent to rebut the prima facie case by proving there is a non-discriminatory explanation for their impugned conduct. To establish a prima facie case, the claimant must establish: (1) that they have a characteristic protected by the Code; (2) that they experienced adverse treatment; and (3) that the protected characteristic was a factor in the adverse treatment. With respect to the third requirement, the court affirmed that the protected characteristic does not need to be the only reason or even the primary reason for the adverse treatment to constitute discrimination - it just needs to be a factor. Furthermore, the ONCA affirmed the long-established principle that "partial discrimination" is still discrimination, meaning that it is not necessary for all members of a protected group to be affected in order for something to be deemed discriminatory.
Applying the law to the facts, the ONCA held that it was reasonable for the HRTO to find that Haseeb had established a prima facie case of discrimination and that Imperial had failed to rebut it. In particular, the ONCA held that: (1) Haseeb was a member of protected group under the Code as a non-Canadian citizen; (2) Haseeb experienced adverse treatment when his job offer was withdrawn; and (3) that Haseeb's citizenship was a factor in Imperial withdrawing the offer because he was not permanently eligible to work in Canada. In reaching this conclusion, the ONCA held that the fact that Imperial's policy did not discriminate against all non-Canadian citizens by making an exception for permanent residents does not change the fact that it discriminates against all other non-Canadian citizens, which is still discrimination. Furthermore, the ONCA held that it was reasonable for the HRTO to find that Haseeb's dishonesty was not the only reason that Imperial withdrew the job offer and that his citizenship was at least a factor in this decision.
In the result, the ONCA allowed the appeal and reinstated the award of more than $120,000 in damages to Haseeb, holding that Imperial discriminated against him on the basis of citizenship.
The Bottom Line
As the law currently stands under Imperial Oil, Ontario employers can no longer require job candidates to be permanently eligible to work in Canada without facing serious liability for discrimination. Nonetheless, it is possible that this decision could be overturned on appeal by the Supreme Court of Canada, but only time will tell. Until that time comes, Ontario employers would generally be well advised to adopt a risk-averse approach of not requiring job candidates to be "permanently' eligible to work in Canada. (Being legally eligible to work in Canada, can still be a requirement). It is strongly recommend that employers consult an experienced employment lawyer, in order to verify the wording of such requirements for job postings, employment applications and/or offers of employment.
If you have any questions about whether imposing any particular job requirements may be creating potential liability for your company, or if you need advice of how to minimize any existing risks, please do not hesitate to contact us for expert legal advice and guidance.