In a recent decision, the Human Rights Tribunal of Ontario (HRTO) confirmed that employers may not impose requirements on job applicants that violate the Human Rights Code (the “Code”), including requirements based on citizenship or permanent resident status.
The case, Haseeb v. Imperial Oil Limited, involved an employer, Imperial Oil Limited, which rescinded an applicant’s job offer because the applicant was ineligible to work in Canada on a permanent basis.
The applicant, Mr. Haseeb, was an international student who was eligible to apply for a Post-Graduate Work Permit (PGWP), which would allow him to work following graduation from a Canadian university. To this end, the employee expected to receive a PGWP following completion of his studies.
The permit would allow him to work anywhere in Canada and for any employer for up to three years. In his final year of school, Mr. Haseeb applied for a position that required applicants to be able to work in Canada on a “permanent basis”.
Mr. Haseeb misrepresented his eligibility during the hiring process, and his application was successful. However, his offer was ultimately rescinded when he could not produce proof of eligibility to work in Canada on a permanent basis. Mr. Haseeb filed an Application with the HRTO alleging discrimination based on citizenship.
The central question the HRTO had to grapple with was whether Imperial Oil engaged in discriminatory conduct contrary to the Code in its job screening process.
Inquiries into Applicant’s Citizenship/Permanent Residence Status Constituted Discrimination
The HRTO found that Mr. Haseeb was discriminated against based on citizenship. Imperial Oil’s policy requiring job applicants to disclose their citizenship or permanent residence status was a violation of human rights.
Specifically, the HRTO considered that the conduct outlined in ss. 23(1) and 23(2) of the Code violated s. 5(1) of the Code since the employer determined whether candidates were eligible for consideration for employment based on whether they had permanent status in Canada. The fact that Mr. Haseeb lied in the screening process played no role in the HRTO’s judgment since the screening process itself was deemed discriminatory. Mr. Haseeb did not have any chance of overcoming the discrimination without stating that he had permanent status.
Employers Should Seek Assistance from an Experienced Employment and Human Rights Lawyer
The HRTO’s decision is a helpful reminder of Ontario’s ever-expanding human rights protections and how far the HRTO is willing to go to ensure that employers adhere to the Code with respect to discrimination based on citizenship, race, age, and sex. While this case dealt with the recision of an offer of employment, it remains to be seen what would have happened had Mr. Haseeb already begun employment and faced termination over his status. Had that been the case, he may very well have been successful in a claim for unjust dismissal.
The decision also makes it clear that human rights protections extend not just to Canadians and permanent residents but also to international students and temporary foreign workers. This issue is an important consideration for employers, particularly given the globalization of Canada’s workforce which includes not just the expansion of racial diversity but also of status (citizens, permanent residents, temporary workers, and visitors).
If you are an employer seeking assistance to ensure that your business and hiring practices are in compliance or if you are an employee who may be entitled to recourse as a result of human rights discrimination resulting in unjust dismissal or otherwise, please contact Toronto human rights lawyers Sultan Lawyers at firstname.lastname@example.org or 416-214-5111.
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