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Can an Employer Discriminate Against an Employee Based on Residency Status?

Can an Employer Discriminate Against an Employee Based on Residency Status?

By:

Posted June 26, 2023

The Court of Appeal recently released its decision in respect of the much-awaited case Imperial Oil Limited v Haseeb. We have hyperlinked the case for those who would like to read the entire decision.

Mr. Haseeb, “the Employee” in this case appealed the decision made by the Divisional Court, which overturned the Ontario Human Rights Tribunal decision, finding that there was discrimination by “the Employer”, Imperial, based on citizenship.

At the relevant time, the Employee was an international student in Canada about to complete his mechanical engineering degree. He was not a Canadian citizen or permanent resident but was eligible for a Post-Graduate Work Permit (PGWP) upon graduation. The PGWP would allow him to work full-time in Canada for up to three years. This work permit is part of Canada’s immigration system aimed at attracting skilled workers to settle and potentially become Canadian citizens.

During his last semester of university, the Employee applied for an entry-level engineering job at the Employer. However, the Employer had a policy that required candidates to have permanent eligibility to work in Canada, demonstrated by proof of Canadian citizenship or permanent resident status. The Employee, lied on his application that he was able to work permanently in Canada, and he lied again in a subsequent interview. He later informed the Employer that he was not a citizen or permanent resident but would be eligible to work on the PGWP initially for a period of three years. The Employer withdrew its offer.

The Employee filed an application with the Ontario Human Rights Tribunal in February 2015, alleging discrimination based on citizenship. He argued that the Employer discriminated against him by requiring Canadian citizenship or permanent residency for employment, despite the fact that he would have a Post-Graduate Work Permit (PGWP) and the right to work in Canada for up to three years at the anticipated time of the position. The Employee claimed that the policy disadvantaged non-citizens, specifically PGWP-holders, who had a lawful right to work in Canada. The Employer’s defense was that their policy was not discriminatory because it allowed for permanent residents. They argued that the requirement was based on immigration status, not citizenship, and that they withdrew the job offer due to the Employee’s alleged dishonesty rather than his inability to meet the permanent eligibility requirement. The Employer also challenged the Employee’s standing to bring the human rights claim.

The Tribunal ruled in favor of the Employee and made several findings. Firstly, it determined that the Employee had the standing to bring his application under section 34 of the Human Rights Code. Secondly, it concluded that The Employer discriminated against the Employee based on citizenship by imposing a condition of permanent eligibility to work in Canada that could only be proven through Canadian citizenship or permanent resident status. Thirdly, the Tribunal identified this discrimination as direct discrimination. Fourthly, it stated that The Employer failed to establish that the Employee’s dishonesty was the sole reason for withdrawing the job offer, as it was evident that his citizenship status played a role, thus indicating discrimination based on citizenship. Finally, the Tribunal considered the alternative scenario where the discrimination was not direct and concluded that the Employer did not establish a bona fide occupational requirement defense.

The Divisional Court on judicial review from the Tribunal decision determined that the decision was unreasonable. This was on the basis that the Tribunal effectively created a ground of discrimination on the basis of not having Canadian permanent resident status that was not in s.5 of the Code.

On Appeal from the Divisional Court, the Court of Appeal disagreed with the Divisional Court, and upheld the decision of the Tribunal as being reasonable. The Court indicated that the logic behind it was discriminatory because the individual was granted permission to work full-time in Canada under the PGWP program for a period of three years, however, the Employer’s policy of only hiring Canadian citizens and permanent residents for a particular position was discriminatory based on citizenship. The fact that the policy made an exception for permanent residents did not make it immune to being considered discrimination. The policy specifically targeted PGWP-holders who had unrestricted work eligibility in Canada for up to three years.  In respect of the dishonesty that was displayed by the candidate (which always plays a large role in whether to hire someone) the Court indicated that the finding of fact by the tribunal was that there was insufficient evidence to demonstrate that Imperial withdrew the job offer solely because he lied on the application.

The end result of this case is that if you are an employer, you cannot discriminate based on citizenship and residency status. Employer’s need to be careful about screening out individuals who hold work visas for the positions they are attempting to fill. While there are always several reasons as to why a candidate may not be hired, where it becomes apparent that a person who is a candidate is on a work permit, it is important that an employer document reasons as to why the person is not hired which are unrelated to the work permit. In the event that an application for a human rights claim is brought against an employer, the documented reasons may serve as evidence down the road to show that the work permit was not the reason for not hiring the candidate. While this is a good rule of thumb for HR professionals, every scenario is different, and if the situation arises you should speak to an employment lawyer.

It is important for employers and HR professionals to also realize there are exceptions to citizenship status, which are found under section 16 of the Human Rights Code. While this case generally stands for the position that discrimination based on citizenship status is prohibited based on section 5, section 16 contains exceptions for employers that may be helpful.

This blog post was written by Travis Ujjainwalla, a member of our Employment Law team.  He can be reached at 613-566-2060 or at travis.ujjainwalla@mannlawyers.com.

 

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Travis Ujjainwalla

Travis Ujjainwalla

I am a member of the Employment, Human Rights, and Labour group.  I have represented clients on litigation matters including, wrongful dismissals, constructive dismissals, human rights claims, and employee grievances. I give advice on various pieces of legislation including, the Employment Standards Act, the Labour Relations Act, the Ontario Human Rights Code, the Canada Labour Code, the Canadian Human Rights Act, the occupational Health and Safety Act, the Workplace Safety and insurance Act, and the Personal Information and Electronics Act. I also provide advice on employer rights under Collective Agreements. I have represented clients within the Ontario Human Rights Tribunal, the Ontario Labour Relations Board, the Workplace Safety and Insurance Board, and the Ontario Superior Court of Justice. I have also helped unionized employers deal with grievances at arbitration. After receiving my LL.B. from the National University of Ireland Galway, I was called to the Ontario Bar in 2017. I... Read More

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