In a 2-1 decision, the majority of the Divisional Court of Ontario (the “Court”) overturned a Human Rights Tribunal of Ontario (“Tribunal”) decision which determined that permanent residency is intrinsically included under the protected ground of citizenship. In Imperial Oil Limited and Haseeb, 2021 ONSC 3868, the Court overturned the Tribunal’s determination that the employer discriminated against an applicant for employment (the “Applicant”) on the ground of citizenship because the employer required employees to be eligible to work in Canada on a permanent basis.
In the initial Tribunal decision, released in 2018, the Tribunal determined that it is discriminatory for an employer to require prospective employees to prove their permanent residency status in order to be eligible to work for the employer in Canada.
The Applicant was an international engineering student that applied to the Employer for an entry-level project engineer position. During the job selection process, the Employer questioned the Applicant about his ability to “work in Canada on a permanent basis”. The Applicant misrepresented his status to legally work in Canada on a permanent basis The Employer offered the Applicant the entry-level project engineer position on the condition that he provide proof of his permanent residency or citizenship status. The offer was rescinded shortly after the Applicant indicated that he did not have proof of his permanent residency status. The Applicant then filed a human rights complaint alleging that the permanent residency requirement was discriminatory on the basis of citizenship.
A summary of 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 and Employer Must Pay for Citizenship-Based Discrimination: Update on Haseeb and Imperial Oil.
The Employer filed for judicial review, challenging the 2018 decision.
The Court reviewed the Tribunal’s interpretation of discrimination on the basis of citizenship. The Court assessed the “plain and ordinary meanings” of both “citizenship” and “permanent residence” to determine that “citizenship” is nothing less or more than “membership in the state” under the Citizenship Act. The decision recognized that an individual can have the right to permanent residence without being a citizen and “permanent residence” is not a ground for discrimination fully encompassed with citizenship. The Court however noted that permanent residency can be a source of “indirect” or “constructive discrimination”, it cannot stand on its own as “direct discrimination”.
The Court also determined that the ordinary meaning of “permanent residence” is separate from and extends beyond citizenship. Citizenship is an immutable (difficult to change) characteristic and is a prohibited ground of discrimination in employment. In contrast, immigration status, such as permanent residency, is a mutable (changeable) characteristic and is not a prohibited ground of discrimination in employment.
Notwithstanding the Court’s decision, employers must still be diligent and careful when drafting employment offers that require proof of citizenship or permanent residency. Failure to exercise caution can still result in an employer’s liability for direct or indirect discrimination.
If you have any questions to assess your human rights liability exposure, please do not hesitate to contact a Mathews Dinsdale lawyer.