New Human Rights Restrictions when Recruiting Immigrants
The Human Rights Tribunal of Ontario (the "Tribunal") recently awarded $101,363.16, representing four years' lost salary, and $15,000.00 for injury to dignity, feelings and self-respect to a job applicant who was denied a position after lying about his ability to work legally in Canada on a permanent basis.
The Tribunal held in Haseeb v. Imperial Oil that Imperial Oil (the "Company") discriminated against a job applicant based on the prohibited ground of citizenship. This was the first time the Tribunal had ever analyzed and defined the term 'citizenship' in the employment context.
The Company had a policy requiring applicants for entry-level, project engineer positions to be able to work in Canada on a "permanent basis". It wanted to avoid investing large amounts of time and resources training junior engineers who might not be able to work in the country on a long-term basis.
Only Canadian citizens and permanent residents are permanently eligible to work in Canada. Citizens of other countries may become eligible to work in Canada for limited durations pursuant to several different types of work permits. The Applicant, a non-citizen and recent Canadian-university graduate, was entitled to a Post-Graduate Work Permit. This permit would allow him to lawfully work full-time for any employer in Canada for a three-year period. He intended to use this work experience to apply for permanent residence.
The Applicant heard that the Company would not hire anyone on a work permit. So, he lied on the pre-employment questionnaire and when interviewed, stating that he was eligible to work in Canada on a permanent basis. He was ranked as the top candidate and offered the job. The Company rescinded the offer when he was unable to provide proof of his permanence.
The Tribunal found that the Company's so-called "permanent residence" requirement constituted discrimination on the basis of citizenship, which is prohibited under sections 5 and 23 of the Ontario Human Rights Code (the "Code").
The Company argued that it did not discriminate based on citizenship – it hired permanent residents of Canada, after all, who are by definition citizens of countries other than Canada. However, the Tribunal reasoned that although the Company's policy did not disadvantage all non-citizens of Canada. It disadvantaged an entire group of non-citizens (those with temporary work permits) and this was enough to find discrimination based on citizenship.
The Tribunal acknowledged that the Applicant was dishonest during the interview process. However, it reasoned that its job was to put the Applicant back in the position that he would have been if the discrimination had not happened.
The Code prohibits employers from asking job applicants a question which "classifies or indicates qualifications by a prohibited ground of discrimination" (i.e. screening questions about age, family status, or citizenship). The Tribunal reasoned that if the Applicant had not been asked an improper screening question, he would not have been forced to lie about it. Absent the improper question, the evidence was clear that Applicant would have been awarded the job.
The Tribunal awarded the Applicant four years' lost wages, calculating the difference between the salary the Company had offered him, and the lower salary he had been forced to accept elsewhere when his offer was revoked ($101,363.16). The Tribunal awarded an additional $15,000.00 for injury to the Applicant's dignity, feelings and self-respect.
Notably, it seems that the Tribunal's decision is directly inconsistent with Federal Court of Appeal authority which has distinguished "immigration status" from "citizenship" in other legislative contexts. In our view, the Tribunal's decision to conflate immigration status with citizenship may create unintended and undesirable consequences when applied practically in future cases. Moreover, since the Code only exempts citizenship-based discrimination, essentially, where being a citizen or permanent resident is a legal requirement, the Code does not contemplate the many other types of "immigration status" which may have a direct and legitimate bearing on a candidate's suitability.
The Tribunal's decision in Haseeb is a good reminder for employers, that asking problematic questions during the recruitment process is not worth the risk. The Tribunal has found that merely asking such a question is a breach of the Code and may trigger a damage award. There is no requirement to show an intention to discriminate or that candidates were in fact discriminated against based on their responses to the question. Moreover, the Tribunal has effectively confirmed that job applicants are entitled to lie in response to discriminatory questions.
The Tribunal's decision about the definition of citizenship under the Code is controversial in several respects, and it seems likely that the decision will be appealed. Nevertheless, the Tribunal has signaled that it will be problematic to refuse to hire a job applicant solely because they hold a temporary work permit. For the time being, employers should avoid asking questions about applicants' "permanent" ability to work in Canada, as the Tribunal has found that this improperly reveals citizenship status. Employers would be well-advised to adopt more traditional methods for retaining strong performers and avoiding wasted resources: competitive compensation, incentives (which motivate performance and inspire loyalty), and opportunities for advancement.
Of course, allowing an individual to work for your company while they are not legally entitled to work in Canada could have serious consequences pursuant to immigration legislation. It is a best practice for employers to seek verification that job applicants are legally entitled to work in Canada for the employer in question (without asking about the duration of this entitlement, at least initially). Employers should require applicants to affirm the above when applying for employment; but, should avoid asking further questions or demanding proof at an early stage in the recruitment process, to avoid the appearance of impropriety.
If a successful candidate is working pursuant to a temporary work permit, employers should monitor the permit's duration and either ensure steps are taken (by the employee) to renew it on time, or require the employee to stop working if it expires.
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.