In a precedent-setting decision, the Human Rights Tribunal of Ontario has ruled that an employer cannot discriminate against job candidates who do not have Canadian permanent residence status or citizenship but are legally able to work here.
The decision follows a complaint from Muhammad Taimoor Haseeb, a former international student at McGill University who was offered a position as an engineer in Sarnia by Imperial Oil in 2014. The offer was later rescinded after the company learned Haseeb did not have permanent status in Canada — though he was eligible for a three-year postgraduate work permit to stay in the country.
The case is believed to be the first employment-related complaint in Canada related to citizenship and could have far-reaching implications for employers who turn down applicants based on residency status.
The decision could also have an impact on job-seekers with temporary status in securing employment as postgraduate work experience has become an increasingly important stepping stone for permanent residency in Canada.
“We are very pleased with the tribunal decision. This is what we had hoped for as an outcome,” said Chantal Tie, Haseeb’s lawyer from the Human Rights Legal Support Centre.
“For other employers, it is now clear that it is contrary to the Human Rights Code to exclude non-citizens who have the legal ability to work in Canada. They now must be considered for all positions.”
Haseeb came to Canada from Pakistan in 2009 for his undergraduate studies in mechanical engineering and received top marks when he graduated in December 2014. That fall, he applied to Imperial Oil and was invited to two rounds of interviews. He was ranked first among all candidates and a job offer arrived Dec. 2, 2014 for the $86,700 entry-level position, but it was cancelled by Imperial Oil a month later.
Although Haseeb was not upfront about his lack of permanent status in Canada during the recruitment process, tribunal adjudicator Yola Grant said Imperial Oil’s policy of asking job applicants about their citizenship and immigration status violated the law. Grant ordered the two sides to try to reach a settlement.
“IO’s (Imperial Oil’s) requirement amounted to a direct breach of the code when it distinguished among job candidates who were eligible to work in Canada on the basis of citizenship and created categories of ‘eligible’ and ineligible’ for progressing through (its) screening process,” Grant wrote in a 59-page interim decision this week.
Haseeb, who is now a management consultant and has been a permanent resident since June 2017, has asked for personal damages of $25,000, as well as lost wages plus interest and an order against the company to stop asking job applicants for entry-level engineering positions if they can “work permanently in Canada.”
“I’m very satisfied with the decision and I hope it can give the same opportunities to those who can legally work in Canada,” said the 27-year-old Haseeb, who was later hired for a job in St. John’s, Nfld., before recently being reassigned to Kitchener.
“We have left everything behind to be part of this country. I hope this will open the door for everyone willing to work hard and contribute to Canada,” Haseeb said of fellow immigrant jobseekers.
Imperial Oil said it “respectfully” disagreed with the tribunal’s ruling particularly with respect to the relevance of the untruthful responses and information Haseeb provided during the recruitment process.
“Imperial is committed to conducting business with the highest level of business ethics and integrity, we practice it as a company and expect it from our current and future employees,” spokesperson Lisa Schmidt said in an email Wednesday.
“It is not our practice to hire individuals who lie or deliberately provide misleading or erroneous information, which the applicant conceded he did, during the pre-employment process … We will review the decision in detail as we consider our options in response to the decision.”
In an interview, Tie, Haseeb’s lawyer, said the tribunal had weighed the nature of her client’s “misleading statement” but characterized it as a “ruse” to get past the screening stages.
“The only way Mr. Haseeb could get Imperial Oil to fairly assess his qualifications was for him to pretend he had permanent status,” said Tie. “If he had not checked the wrong box, he would have been screened out before the interview stage.”
Over 13 days of hearings spanning eight months, Imperial Oil argued Haseeb should not be granted standing because he was not legally allowed to work in Canada between the time he applied for the position and when the job offer was rescinded — an argument refuted by an immigration expert witness and the tribunal.
Imperial Oil said the permanent residence status was a “bona fide requirement” and no waiver had ever been provided for a candidate for the entry-level position of project engineer because new graduates did not have any highly sought-after skills and there was a large pool of qualified new graduates with permanent status to choose from. The company said it would risk losing its investment of time and money in training someone who can’t stay in the country permanently.
The company conceded that “on an exceptional basis only” it hired a few experienced engineers for “hard-to-fill” positions, or who possess “a unique/strong skill set” who did not meet the permanent residence eligibility requirement — a fact the tribunal said indicated the purported “requirement” is not bona fide and could be waived at its discretion.
Originally posted on thestar.com on July 26, 2018 by Nicholas Keung