Ontario Court of Appeal rules that Requiring Permanent Right to Work in Canada is Discriminatory

With a growing number of immigrants working in Canada, some employers require proof that prospective employees are eligible to work in Canada. This is reasonable and permissible because it is required and authorized by federal immigration law. Given that some work permits may be short term or depend on conditions such as a spouse retaining the right to be in Canada to study or work, some employers take this a step further and, where the position is long-term, require proof that an employee is able to work in Canada on a permanent basis to avoid hiring a worker who has to leave the country soon after being hired. However, as a result of the Ontario Court of Appeal’s recent decision in Imperial Oil Limited v. Haseeb, employers in Ontario (and potentially other jurisdictions) should think twice before doing so.

The Facts

The complainant, Haseeb, had applied for an entry-level engineer position with Imperial in Ontario while in his last year of studies at McGill University. Imperial required prospective job applicants to be “eligible to work in Canada on a permanent basis”. The job posting also required proof of permanent eligibility to work in the form of a “Canadian birth certificate, Canadian citizenship certificate, or Canadian certificate of permanent residence” (together, the “Requirements”). The Requirements were repeated by Imperial Oil throughout the application and interview process.

Haseeb was in Canada on a student visa. Upon graduation, he would be eligible for a Post-Graduate Work Permit (“PGWP”), which would permit him to work full-time, for any employer, anywhere in Canada, for a period of three years. Further, an individual with a PGWP is eligible to apply for permanent resident (“PR”) status after one year of full-time work experience. Thus while he had the reasonable expectation he would ultimately gain PR status, that was not guaranteed.

Fearing he would be screened out for the position, Haseeb lied and stated in his job application and throughout the interview process that he met the Requirement. Imperial offered Haseeb the position, which was conditional on Haseeb providing proof of meeting the Requirement. Unsurprisingly, Imperial discovered that Haseeb had been dishonest about meeting the Requirement and withdrew their job offer. In a letter, Imperial explained that the offer was withdrawn because he did not meet the Requirements and invited him to re-apply in the future once he did.

Haseeb brought a human rights complaint on the basis that Imperial had discriminated against him under section 5 of the Ontario Human Rights Code, which prohibits discrimination on the basis of “citizenship”. It is important to note that, with the exception of Nunavut, other provinces and territories, including BC, Quebec and Alberta, do not list “citizenship” as a protected ground. The matter was heard by the Tribunal, then judicially reviewed by the Ontario Divisional Court, before being appealed to the ONCA.

The Ontario Court of Appeal Decision

The ONCA upheld the Human Rights Tribunal’s decision, finding that its interpretation and analysis of ‘citizenship’ was reasonable. The ONCA stated that the scope of ‘citizenship’ discrimination must be considered together with section 16 of the Code, which sets out several scenarios where requiring Canadian citizenship or PR status would not be considered discrimination, such as where it is required or authorized by law. The ONCA found that, reading the Code as a whole, employers can rely on limits created by federal immigration law, such that they can require proof of eligibility to work in Canada, but cannot impose additional immigration requirements on non-citizens, such as proof of an indefinite right to work in Canada.

The ONCA found that the Requirements discriminated on the basis of citizenship as it distinguished and excluded those who did not have at least PR status but were otherwise eligible to work. Further, the ONCA reasoned that denying him the ability to work in Canada despite his PGWP and potential to gain PR would be contrary to the purpose of that permit and the immigration legislation under which it was created. Even though PR status could meet the Requirements, and so a candidate did not require full citizenship, such partial discrimination was still discrimination under the Code.

Although Imperial had argued that Haseeb’s dishonesty was the only reason they withdrew their offer, the ONCA found that Imperial’s withdrawal letter contradicted their argument by citing only his failure to meet the Requirement. Of note, the Tribunal had dismissed Imperial’s argument that the Requirements was an operational necessity because Imperial had waived the Requirements for some PGWP holders in senior positions in the past and could not show that those employees left at any higher rates than other employees and did not show they did so because of a failure to obtain PR status.

Takeaways

A number of lessons can be taken from this case:

1. In Ontario (and Nunavut), employers cannot require proof of citizenship or PR status as a condition of work unless that is a requirement imposed under immigration law or other legislation, unless they can show it is a “bona fide occupational requirement” (BFOR) that cannot be reasonably accommodated. An example might be a job applicant for a long term job with only 3 months left in a time limited work permit who has no reasonable prospect of obtaining a renewal or other right to work by that deadline.
2. As a general proposition, it remains permissible to require proof of eligibility to work in Canada, as that is required by law. Other such requirements may be permitted under the Code section 16.
3. If an employer intends to rely on material dishonesty in a job application as a basis for withdrawing a job offer or terminating the newly hired applicant, that should be referenced as the ground for the withdrawal.

As for other provinces, they all prohibit discrimination on grounds such as place of origin or nationality (note: the precise wording of this ground varies in each jurisdiction). The argument can be made that not having PR or citizenship coincides in most cases with being from another place of origin or having a different nationality. Tribunals have treated such “proxy” factor discrimination as breaching human rights legislation in other cases.

Ontario and Nunavut employers should review their employment agreement templates and policies to ensure that they do not require proof of a candidate’s citizenship or PR status unless it is required or authorized by law or falls under one of the other scenarios set out in section 16 of the Code.   This would not preclude reasonable requirements around duration of right to work in Canada in a particular case which form a BFOR.

If you want more information on permissible requirements and pre-conditions for employment, you can contact us at:

Geoffrey Howard:
ghoward@howardlaw.ca
604 424-9686

Sebastian Chern:        
schern@howardlaw.ca
604 424-9688