In A Flash

Employer’s Requirement for Proof of Canadian Citizenship or Permanent Residency Held to be Discrimination

In Imperial Oil Limited v Haseeb, 2023 ONCA 364, the Ontario Court of Appeal unanimously restored the decision of the Human Rights Tribunal of Ontario (the “Tribunal”) which had found that Imperial Oil had discriminated against a job applicant (Mr. Haseeb) by requiring proof of Canadian citizenship or permanent residency.

Mr. Haseeb was an international student who applied to Imperial Oil for an entry-level project engineer position. Imperial offered Mr. Haseeb the position on condition that he provide proof of Canadian citizenship or permanent residency. Mr. Haseeb was not a permanent resident, but was going to be eligible to work full-time anywhere in Canada for up to three years with a Post-Graduate Work Permit (“PGWP”). After Mr. Haseeb revealed to Imperial that he was not a permanent resident, they revoked the job offer. Mr. Haseeb then filed a human rights application alleging that the permanent residency requirement discriminated against him on grounds of citizenship, contrary to the Ontario Human Rights Code (the “Code”).

Initially, in 2018, the Tribunal decided that it was discriminatory for employers to require job applicants to prove their Canadian citizenship or permanent residency status to be eligible to work. As a result, the employer was ordered to pay in excess of $100,000 in damages to Mr. Haseeb for discrimination based on citizenship.  On judicial review, the Divisional Court of Ontario reversed that decision, holding that “permanent resident” was not a protected ground encompassed within the term “citizenship”. Mr. Haseeb appealed this ruling to the Court of Appeal.

The Court of Appeal held that Imperial Oil’s requirement for proof of Canadian citizenship or permanent residency was discrimination on the ground of citizenship because it excluded a group of non-Canadian citizens who were legally entitled to work full-time anywhere in Canada.

The Court of Appeal said that the purpose behind including “citizenship” as a protected ground was to ensure that individuals eligible to work in Canada under federal immigration law were treated equally. In doing so, the Court of Appeal noted that the Code has an exception (under Section 16(1)) that would allow an employer to impose a Canadian citizenship requirement, but only where it is required or authorized by law.

The Court of Appeal also considered the purposes of federal immigration law, and said that the purpose of the PGWP program is to allow individuals to obtain Canadian work experience so they can eventually apply for permanent residency. The Court of Appeal ultimately held that interpreting the Code in a manner that would allow for discrimination on basis of ineligibility “to work in Canada permanently” would be contrary to the purposes of federal immigration law and programs like the PGWP.

Employers may wish to review their hiring policies in light of this decision and should be cognizant of possible claims of discrimination based on citizenship.

A summary of the Divisional Court of Ontario’s decision, and the earlier Tribunal decisions can be found in our previous In a Flash articles:

  • Discrimination based on Citizenship: New HRTO Decision Addresses the Convergence of Immigration and Employment Law (HRTO merits decision, discussed here);
  • Employer Must Pay for Citizenship-Based Discrimination: Update on Haseeb and Imperial Oil (HRTO remedy decision, discussed here); and
  • Permanent Residency Status Not a Protected Ground of Citizenship in Human Rights Code (Divisional Court decision, discussed here)

Any Employers with questions or concerns about the effect of this decision on their current practices are encouraged to contact a Mathews Dinsdale lawyer.

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