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Bulletin | The HR Space

Human Rights Tribunal of Ontario First to Consider Citizenship based Discrimination in Employment

Fasken
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Labour, Employment and Human Rights Bulletin | The HR Space

In July, the Human Rights Tribunal of Ontario released a key decision in Canada addressing allegations of discrimination on the basis of citizenship in the employment context: Haseeb v Imperial Oil Limited, 2018 HRTO 957 (PDF). The Tribunal found that hiring practices that expressly limit employment to those individuals who are citizens or permanent residents constituted direct discrimination for which no bona fide occupational requirement could be asserted. The decision is sure to have a national impact on hiring practices of employers across the country and across industries.

The Facts

The applicant was an international engineering student on a student visa in his final semester of study at McGill University. Following graduation, the applicant would become eligible for a postgraduate work permit or PGWP which would entitle him to work anywhere in Canada, for any employer for up to three years. The applicant stated that his intention was to pursue an engineering career in Canada and to use the PGWP as a path to permanent residency.

The applicant applied for a job with Imperial Oil. Before applying he had heard that Imperial had a practice of only hiring individuals who were either Canadian citizens or permanent residents. In order to avoid getting pre-emptively screened out, he lied on his application and two subsequent interviews, representing to Imperial that he satisfied Imperial's "permanence requirement". Ultimately, the applicant was Imperial's top candidate and was offered the job. Acceptance of the position was conditional on the applicant providing Imperial with proof that he was either a Canadian citizen or had permanent residency status. The applicant was unable to do so and requested that Imperial make an exception, but they declined.

Imperial admitted that, effectively, it was directly discriminating against job candidates based on their ability to respond to the question regarding their eligibility to work on a permanent basis. Nevertheless, Imperial argued that the "permanence requirement" was a bona fide occupational requirement and a practice that was an integral part of their succession planning. Despite these assertions, Imperial conceded that it had waived the "permanence requirement" on numerous occasions where a potential employee had highly specialized skills or training.

The decision

The Tribunal rejected Imperial's assertion that the "permanence requirement" was a bona fide occupational requirement for three reasons:

1. On its face, the policy distinguished between candidates who were citizens/permanent residents and those who were not. The "permanence requirement" therefore constituted direct discrimination. The fact that both permanent residents and Canadian citizens had an advantage in hiring compared to the applicant did not mean there was no discrimination.

2. It is well established that in certain circumstances a discriminatory policy or practice is only justifiable if it constitutes a bona fide occupational requirement ("BFOR"). In Ontario however, given the wording of the Code, only very limited statutory defences are available in cases of direct discrimination. No such defence was available in this case. For indirect discrimination, the general BFOR defence remains available. Even assuming this case was one of indirect discrimination, the Tribunal found that Imperial had not proven that its "permanence requirement" was in fact, a bona fide occupational requirement. This was because:

a. First, Imperial could not demonstrate that that the permanence requirement was actually linked to any specific task to be performed by a Project Engineer. To date, an "occupational requirement" has only ever been linked to skills that are required to safely perform tasks that are an essential part of a job.

b. Second, Imperial had not demonstrated that limiting employment to Canadian citizens or permanent residents was actually an effective "succession planning" tool.

c. Third, Imperial had continually waived the "permanence requirement" where it was convenient or advantageous for them to do so. This suggested it was an optional criteria, not a necessary one to the performance of the job.

3. In the further alternative, the Tribunal found that even if the "permanence requirement" was reasonable and bona fide, Imperial had not tendered evidence to demonstrate that it would suffer undue hardship if it tried to accommodate those affected by the "permanence requirement".

The Tribunal declared that Imperial's "permanence requirement" policy constituted a direct violation of the right of equal treatment in employment guaranteed in section s. 5(1) of the Code. The Tribunal directed that a further hearing could be held in order to determine damages, if the parties were unable to agree.

Best Practices 

This is the first decision in Ontario directly addressing discrimination based on citizenship in the employment context. While there are differences between each province's human rights legislation, they all prohibit discrimination on the basis of citizenship and it can be expected that Hasseb will be considered persuasive in each jurisdiction. Employers across the country should therefore take note and alter their hiring processes as necessary:

 Remove any questions specifically related to citizenship or immigration status from all applications and job postings. General questions along the lines of "Are you legally authorized to work in Canada" are fine, so long as employers do not discriminate between Canadian citizens, permanent residents, and those who are in Canada on a work permit. Job postings and job descriptions should also be reviewed carefully.

 Ensure that all equal opportunity hiring policies apply to all individuals who are legally authorized to work in Canada. Policies should not favour one group of people over another.

To be clear, the decision does not alter the fact that individuals must be legally able to work in Canada before commencing work. The decision simply stands for the principle that employers' hiring and employment practices cannot distinguish between citizens, permanent residents, and those who are able to work pursuant to a valid work permit.

 

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