In the recent decision in Haseeb v. Imperial Oil, the Human Rights Tribunal of Ontario (“HRTO”) held that it was discriminatory for an employer to require job candidates to be permanent residents or Canadian citizens in order to be eligible for a job. The HRTO held that the employer’s “permanence requirement” did not constitute a bona fide occupational requirement (“BFOR”) and ultimately found that the applicant satisfied his onus of demonstrating that he experienced discrimination in the hiring process based on the prohibited ground of citizenship.
Mr. Haseeb, an international student, was in his last semester as an Engineering student at McGill University when he applied for an entry level engineering role at Imperial Oil. Mr. Haseeb had a student visa at the time and would be qualified for a postgraduate work permit for three years upon graduation. He also planned to obtain permanent residency. In order to qualify for the role, Imperial Oil required engineers to have permanent residency or Canadian citizenship. Throughout the interview process, Imperial Oil asked Mr. Haseeb about his ability to work in Canada on a permanent basis. Mr. Haseeb knew of Imperial Oil’s policy and falsely advised that he could work on a permanent basis. Imperial Oil offered Mr. Haseeb the position conditional upon proof of permanent residency or citizenship. Imperial rescinded their offer after Mr. Haseeb failed to provide such proof, but invited him to reapply in the future should he become eligible. Mr. Haseeb brought an application through the HRTO on the basis of citizenship.
Based on the language chosen by the legislature in the Canadian citizenship defences in section 16 of the Ontario Human Rights Code (“OHRC”), the HRTO rejected Imperial Oil’s argument that distinguishing job applicants on the basis of both “Canadian citizenship” and “permanent residence” morphed their differential treatment to one based on “immigration status” (rather than citizenship), which is not a prohibited ground under the OHRC. In coming to its conclusion, the HRTO interpreted the section 16 defences to mean that discrimination based on citizenship will arise under the OHRC where there exists a requirement or consideration that distinguishes individuals “on the basis of either Canadian citizenship, permanent residence status or domicile in Canada with intention to obtain citizenship” unless the requirement is otherwise required by law or if a defence applies. On that basis, the HRTO determined that hiring practices and interview screening processes that classify individuals as “eligible” and “ineligible” for jobs based on the ability to work in Canada on a “permanent basis” amount to direct discrimination on the basis of citizenship.
Imperial Oil argued that Mr. Haseeb’s dishonesty was the reason they rescinded his offer. However, the HRTO found that there was evidence to suggest dishonesty was not the only reason Mr. Haseeb was not hired. Given the caselaw is clear that a protected ground need only be one of the factors involved in a decision to violate the OHRC, and given there was evidence to suggest that citizenship was a factor in their decision-making process, Imperial Oil’s argument failed. Further, the Tribunal held that the Applicant’s dishonesty was not relevant because he was dishonest in order to get to the stage in the process where his skills and experience were properly evaluated.
In its decision, the HRTO rejected Imperial Oil’s BFOR argument and stated that this is only available in very limited instances when it is a case of direct discrimination. As this was a case of direct discrimination and there were no extenuating circumstances, the BFOR defence was not available to Imperial Oil. Even if it was available, the HRTO held that Imperial Oil would not have been able to establish a BFOR existed.
The decision as to remedy was deferred to a future hearing.
This case serves as a reminder to all employers that discrimination is prohibited during the pre-employment relationship such as during the hiring and recruitment process. Employers should carefully review their hiring policies, practices and employment contracts to ensure that employment decisions are not being made on the basis of permanent eligibility to work in Canada. That being said, employers should not confuse this restriction with their ability and duty to ensure their employees are legally eligible to work in Canada.
News Update on Bill 57 – Restoring Trust, Transparency and Accountability Act, 2018
On December 6, 2018, Bill 57 passed Third reading and received Royal Assent. Bill 57 defers the coming into force of the Pay Transparency Act, 2018 (“PTA“) to an unspecified date, which was supposed to come into force on January 1, 2019. For details, please see our previous newsletter.
It is uncertain whether the Ontario government will amend or repeal the PTA instead of delaying the date that the PTA comes into force. For those employers who have already spent time and money on implementing changes to comply with the PTA, it is advisable to leave these in place while we await development on the PTA’s status. However, for those who have not yet started or completed making changes in order to comply with the PTA, it is advisable to wait and see what happens with the PTA before taking any further steps.