A recent case of the Ontario Human Rights Tribunal (OHRT) serves as a cautionary note to employers with respect to the hiring of foreign workers. Specifically, the OHRT makes it clear that employers cannot arbitrarily discard applicants who do not have permanent residency status in Canada.
The case, Haseeb v. Imperial Oil Limited, found that the company violated the OHRC when it refused an applicant based on the fact that he was a foreigner on a temporary work permit. Specifically, the OHRT found that this equalled discrimination on the basis of citizenship, a ground under the Human Rights Code.
The individual had applied for a Project Engineer position at Imperial Oil, while on a post-graduate work permit (PGWP), which he was granted after completion of his engineering studies in Canada.
The PGWP allowed him to work full-time with any employer in Canada for up to three years. Imperial Oil had in place a requirement that an applicant be either a permanent resident or Canadian citizen. The applicant lied and stated that he was a permanent resident.
The applicant was later offered the job, after which he revealed that he was not a permanent resident but instead a foreign worker. The employer subsequently pulled the job offer.
The applicant then brought an application at the OHRT, claiming discrimination on the basis that he was a foreign worker, and specifically not a Canadian or permanent resident. Imperial Oil responded by arguing that it should not be deemed improper because the job required an individual who could remain employed in Canada, that the applicant was dishonest, and that they did not discriminate on the basis of citizenship because they only asked about immigration status rather than any specific nationality.
The OHRT did not agree with Imperial Oil. Specifically, it stated that (1) it was discrimination on the basis of citizenship because non-Canadians would be adversely impacted by the policy (2) there was no sufficient need for the person to be Canadian or permanent resident since it was indefinite employment which could be terminated at any point, the person had status to work, and the company had employed foreign workers before (3) the dishonesty, while not condonable, was done only in response to the discrimination.
Do employers have to consider foreign workers as equal to Canadians?
The case demonstrates that employers face a risk of discrimination when they implement what are deemed to be arbitrary policies that result in dismissing what are otherwise legitimate candidates, but for their nationality. This case is particularly interesting in light of the exponential increase in the number of temporary foreign workers in Canada over the last 10 years. Specifically, Canada’s economic migration program has transformed to one emphasizing Canadian experience and prioritizing individuals for permanent residency to those individuals who can demonstrate that they have successfully integrated into the Canadian labour market while on temporary status.
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