Discrimination Based on Citizenship

Discrimination Based on Citizenship in Job Applications: Insights from Imperial Oil Limited v. Haseeb

Discrimination is an issue that continues to plague various aspects of society, including the job application process. A recent Ontario Court of Appeal decision has shed light on the potential violation of individuals’ rights under the Ontario Human Rights Code (the “Code”) when requiring job candidates to be Canadian citizens or permanent residents.

Imperial Oil Limited v. Haseeb 2023 ONCA 364 has highlighted the issue of discrimination based on citizenship in job applications. The court of appeal’s decision supported the Human Rights Tribunal’s prior ruling, emphasizing the importance of fair treatment and equal opportunities for job candidates.

In this blog post, we delve into the key insights derived from the court’s decision, providing valuable guidance to both foreign workers and employers.

Overview

• In this case, a student (referred to as the Applicant) filed a human rights application alleging discrimination during a job application process.
• The Applicant was not a Canadian citizen or permanent resident but intended to apply for a Post-Graduate Work Permit (PGWP) upon graduation, which would allow them to work in Canada.
• Imperial Oil, the employer, required proof of Canadian citizenship or permanent resident status as a condition for employment.
• The Applicant falsely claimed to meet these requirements, resulting in a job offer that was later withdrawn when the Applicant revealed their eligibility for a PGWP was revealed.

The Human Rights Complaint

Following the withdrawal of the job offer, the Applicant filed a human rights complaint in 2014. The Tribunal initially found discrimination based on citizenship. However, Imperial Oil sought a judicial review, leading to the Tribunal’s decision being overturned due to unreasonableness.

Subsequently, the Appellant appealed to the Court of Appeal, which supported the Tribunal’s ruling, reinstated their decision, and provided further clarification on discrimination based on citizenship. The Court of Appeal reinstated the Tribunal’s award, approximately $120,000.00 in compensation for his loss of income and the injury to his feelings, dignity, and self-respect.

Key Issues and Findings

Standing: The Court of Appeal recognized the Tribunal’s decision, recognizing the applicant’s standing to bring the human rights application.

The Applicant’s direct interest in the pre-employment condition imposed by Imperial, which they were unable to meet, allowed them to assert their rights under the Code. The court also took into consideration that although the Applicant did not possess a work permit at the time of the job application, they were likely to be eligible for a Post-Graduate Work Permit (PGWP) upon graduation. This eligibility for a PGWP was significant in this case as the Applicant had already completed their graduation requirements, and the only condition for obtaining the PGWP was confirmation from the university of their program completion.

Citizenship is protected by the Code: The Tribunal recognized that “citizenship” and “non-citizenship” were clear distinctions covered by the Code.

The appellant only needed to establish that the alleged discriminatory treatment was linked to their personal characteristic of being a non-citizen. Imperial Oil’s argument that their policy was based on immigration status rather than citizenship was rejected, as partial discrimination against some members of a protected group still constitutes prohibited discrimination.

Direct Discrimination: Imperial Oil’s policy explicitly excluded non-Canadian citizens eligible to work in Canada.

The court of appeal found direct discrimination based on citizenship, as it was clear that a subset of eligible to work non-Canadian citizens were excluded from the hiring process.  The tribunal and court of appeal determined that this constituted direct discrimination, making the bona fide occupational requirement (BFOR) defense inapplicable.

Partial discrimination is still Discrimination: The presence of a policy that does not exclude all non-Canadian citizens does not negate its discriminatory impact.

Instead, it leads to partial discrimination, targeting a specific subset of non-Canadian citizens who are eligible to work in Canada, rather than encompassing all non-Canadian citizens eligible for employment. The court reiterated the firmly established principle that even partial discrimination constitutes discriminatory treatment.

Discrimination need only be a factor involved in a decision: There is well-established legal precedent that discrimination based on a protected ground does not have to be the sole or main factor in a decision not to hire someone.

Even though the Applicant had clearly been dishonest about their immigration status during the application process, which was understood to be part of the reason the offer was withdrawn, it was found that it was not the only reason for the withdrawal – his citizenship was also a reason. The withdrawal letter from Imperial Oil, which did not mention the appellant’s dishonesty as a factor, served as key evidence of discrimination based on citizenship.

Key Takeaways

Scrutinize Immigration Clauses: Employment contracts with immigration clauses should be carefully examined to ensure compliance with the Code. Employers must avoid overly restrictive requirements that could violate the Code but may still require conditions such as maintaining admissibility to Canada and work authorization.

Standing to Bring an Application: To have standing under the Code, Applicants need only to allege that they belong to a protected group, have experienced adverse treatment in a regulated category (such as employment), and that the protected characteristic played a role in the alleged adverse treatment. Human right claims may be brought within one year after the incident if it is a single incident, or within one year after the last incident if it is a series of incidents.

If you have concerns about preventing discrimination during the hiring process or believe that a prospective employer has discriminated against you based on a protected human rights ground, it is crucial to seek legal advice and support. Contact Sultan Lawyers, trusted Toronto employment lawyers, at (416) 214-5111 or here. Our experienced team can provide the guidance you need to navigate the complexities of employment law and protect your rights.