Canada: Pre-employment Inquiries: A Cautionary Tale

Last Updated: December 19 2018
Article by Kimberly Smith

Facts

In July of this year, The Human Rights Tribunal ruled that the Imperial Oil Limited ("IO") pre-employment practice of requesting that job applicants disclose whether or not they were entitled to work in Canada permanently constituted discrimination on the basis of citizenship, pursuant to the Ontario Human Rights Code.

The applicant, Mr. Haseeb, was an international student pursuing undergraduate studies in engineering at McGill University. In the last semester of his studies, he applied for an entry-level position as a Project Engineer with the company's Sarnia location. He heard through the grapevine that IO had a policy of only hiring citizens and permanent residents for the advertised position. When questioned by IO during the hiring process, he concealed the fact that he did not meet their "permanency requirement". Upon successful completion of his program, the applicant would become eligible for a 3-year work permit, under the Federal Post Graduate Work Permit Program ("PGWP"). Under the PGWP program, international students gain Canadian work experience which in turn makes them eligible to apply for and obtain permanent residency on a fast-track basis – typically prior to the expiration of the 3-year work permit period.

The applicant was the top candidate and was ultimately offered the Project Engineer position. However, the offer was rescinded when he was unable to furnish proof of permanent residency or Canadian citizenship.

Findings

In light of these undisputed facts, the Tribunal made a finding of discrimination on the basis of citizenship. It found that IO created categories of eligible and ineligible candidates based on whether or not they could work permanently in Canada.

A significant finding by the Tribunal was that the applicant, as a non-citizen seeking employment with only eligibility to obtain work authorization upon completion of his program, had standing to bring a claim for discrimination in employment under the Code.

Issues

One of the main issues in this case was whether or not the prohibited ground of citizenship was in fact engaged. IO argued that because permanent residents were also eligible for the position, the "permanency requirement" did not discriminate on the basis of citizenship but rather on immigration status – which is not a prohibited ground.

There is no definition of citizenship in the Code. However, for guidance, the Tribunal looked at the use of the word "citizenship" in the section on defences in the Code, and concluded that discrimination on this ground contemplated policies that require prospective applicants to hold Canadian citizenship or permanent residency status. In the words of the Tribunal, "... the legislature contemplated that any requirement, consideration etc. that distinguished among individuals on the basis of either "Canadian citizenship", "permanent residence" status or "domicile in Canada with intention to obtain citizenship" is discrimination unless the requirement is imposed or authorized by law, or the other criteria are met for each of the three defences."1

IO further argued that their policy, even if discriminatory, could be defended on the grounds that it was a Bona Fide Occupational Requirement. However, the Tribunal found that this defence was not available as this was a case of direct rather than indirect discrimination. Nonetheless, the Tribunal considered IO's submission on this point and found that the company had not discharged its onus to show that the requirement was bona fide and necessary. Furthermore, IO failed to show that accommodating the applicant with a waiver would have caused undue hardship.

An interesting aspect of this case is the tension between IO's discriminatory policy and the discomfort of the applicant's dishonesty throughout the job application process. Honesty is one of the pillars of any relationship. This is equally true of employment relationships. However, the Tribunal ruled that the applicant's dishonesty was irrelevant to a finding that IO contravened the Human Rights Code. In other words, contravention of the Code was not mitigated by the applicant's dishonesty. The focus was placed squarely on the discriminatory policy.

Implications for Employers

One of the results of this decision would appear to be a restriction on the freedom previously assumed by employers to seek and act on information pertaining to the right of prospective employees, not just to work, but to work permanently in Canada. This restriction on pre-employment inquiries undoubtedly raises practical issues for employers. This is especially the case when one considers, for example, that there are work permits for shorter periods, including 1-year and 8-month terms.

Bottom Line

As it stands now, following the Tribunal's ruling, requiring job candidates to disclose whether or not they are entitled to work in Canada permanently contravenes the Code, absent a defence. This is a very important decision which now requires employers to critically assess their policies, and challenges assumptions about what employment policies or practices might be found to be discriminatory.

Footnotes

1 Haseeb v. Imperial Oil Limited, 2018 HRTO 957 at para 11.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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