In Ontario, an employer is prohibited from unlawfully discriminating against a person in respect of employment, including at the recruitment phase, due to grounds protected under the Ontario Human Rights Code (the "Code"). These grounds include citizenship. At the same time, employees must be authorized to work in Canada, and the employer is required to verify such authorization upon hire. The recent Imperial Oil Limited v. Haseeb, 2023 ONCA 364 decision (the "Decision") found that the requirement to provide proof of citizenship or permanent residency status in the job application process is discriminatory. It further sheds light on the types of inquiries that may be made by an employer as to work authorization.

The Decision is summarized below, along with key takeaways in respect of the recruitment and hiring process.

Background

The plaintiff in this matter, Muhammad Haseeb ("Haseeb") applied for an entry-level engineering position at Imperial Oil ("Imperial") that listed permanent eligibility to work in Canada, as established by proof of Canadian citizenship or permanent residency, as a condition of employment. Haseeb did not meet this requirement but represented during the recruitment process that he was eligible to work in Canada on a permanent basis.

Ultimately, Haseeb received a conditional offer of employment that required him to produce evidence of his permanent eligibility to work in Canada. Haseeb disclosed that while he was not a Canadian citizen or permanent resident, he was an international student and on graduation would be issued a three-year post-graduate work permit ("PGWP") that would allow him to work in Canada on an unrestricted basis and lead to permanent residency status.

Imperial withdrew the conditional offer of employment on the basis that Haseeb did not meet the job requirements. As a result, Haseeb filed a complaint with the Ontario Human Rights Tribunal (the "Tribunal") alleging that Imperial violated the Code by discriminating against him on the basis of citizenship.

Tribunal and Divisional Court Findings

The Tribunal found that Imperial directly or indirectly discriminated against Haseeb on the basis of citizenship because, despite an unrestricted right to work in Canada for three years, Imperial's decision to revoke the conditional offer of employment was at least partially based on his citizenship status.

On judicial review, the Ontario Divisional Court quashed the decision of the Tribunal. The Divisional Court found that the ruling was unreasonable because it found discrimination based on permanent residency, which is not protected by the Code.

Court of Appeal Decision

The Ontario Court of Appeal (the "Court") restored the Tribunal's ruling on the basis that the Divisional Court erred in applying the reasonableness standard. In its decision, the Court conducted a de novo reasonableness review of the Tribunal decision. To this end, and as further detailed below, the Court sought to identify whether the following four key aspects of the Tribunal's decision were rational, logical, and justified in light of the facts and law:

  1. Was the Tribunal's decision that Haseeb had standing to file an application claiming discrimination in employment on the basis of citizenship reasonable?
  2. Was the Tribunal's finding of a prima facie claim of employment discrimination on the basis of citizenship reasonable?
  3. Was the Tribunal's finding that Imperial withdrew the job offer because Haseeb was not a Canadian citizen or a permanent resident, rather than solely because of his dishonesty in the job competition, reasonable?
  4. Was the Tribunal's decision that the defence under 16(1) of the Code was not available to Imperial reasonable?

For the purposes of this discussion, we focus on issues 2 and 3.

Prima Facie Discrimination

Imperial argued that the Tribunal's decision was unreasonable because its policy did not discriminate on the basis of citizenship but, rather on the basis of immigration status, the latter not a protected ground under the Code. To support this position, Imperial noted that it considered permanent residents (who are not Canadian citizens) eligible for the position.

The Tribunal found that although the policy carved out an exception for permanent residents, the fact that the policy discriminated against some non-citizens because of their citizenship was sufficient grounds for a finding of prima facie discrimination.

The Court found the Tribunal's conclusion to be reasonable, particularly in light of the principles of statutory interpretation as they apply to human rights legislation, which calls for broad and liberal interpretations of the protections. The Court also offered commentary on the relevance of the PGWP program. On this point, the Court called for courts and tribunals to strive for interpretations of provincial law that achieve harmony with federal law. According to the Court, job requirements that are restricted to Canadian citizens and permanent residents exclude PGWP-holders and, in doing so, undermine a program that is designed to attract skilled workers to Canada.

Impact of the Applicant's Dishonesty

Imperial argued that Haseeb's offer of employment was revoked due to his dishonesty throughout the recruitment process, not because of Haseeb's residency or citizenship status. The Tribunal rejected this argument because it believed that Imperial did not furnish enough evidence to support its position. For example, the letter sent by Imperial to Haseeb regarding the revocation of his job offer cited only a lack of eligibility to work permanently.

The Court found the above to be a reasonable conclusion by the Tribunal. The Court added that because prima facie discrimination was made out, in order for Imperial to succeed under this defense it would need to prove that its decision was solely motivated by dishonesty; the evidence showed that this was not the case.

Key Takeaways

The Decision underscores that caution must be exercised with respect to job requirements and the collection of information which identifies people on the basis of a ground protected under the Code (an "Enumerated Ground"), in this case: citizenship.

To this end, we have set out the following best practices in respect of the recruitment and onboarding process, specifically relating to confirmation of eligibility to work in Canada:

  • Job Requirements: Job descriptions and/or eligibility criteria should be reviewed to determine if there are any requirements which relate to an Enumerated Ground. In the event there are any requirements which may exclude some people under the Code (for example, on the basis of citizenship or place of origin), such requirements should be assessed to ensure they are reasonable and a bona fide occupational requirement.
  • Requesting Information: During the application stage (and absent a "special program" as defined by the Code1), employers should not ask questions or solicit information connected with any Enumerated Grounds (for example, questions about an applicant's citizenship status).
  • Interview Questions: During the interview process, candidates should not be asked questions pertaining to Enumerated Grounds. Rather, interview questions should be limited to questions about the employee's qualifications for the role. At this stage, the Ontario Human Rights Commission recommends that employers avoid asking for information on nationality, place of birth or ethnic origin, and instead ask if a person is "legally entitled to work in Canada."
  • Conditional Offer of Employment: Confirmation of entitlement to work in Canada can be elicited at the job offer stage, as a condition of employment with the employer. In keeping with the Decision, the employer's request at this stage must not elicit information pertaining to the applicant's citizenship.
  • Onboarding: Once an employee has been offered and accepted employment, the employer must obtain each new employee's social insurance number ("SIN") within three days after the day on which their employment begins. The SIN confirms that an employee is authorized to work in Canada. SINs starting with "9" are used to identify temporary workers who are not Canadian citizens or permanent residents. Accordingly, SINs should not be requested prior to hire as an inference could be made that an employer did not hire an individual on the basis of their immigration or citizenship status. At the onboarding stage after hire, however, the employer should ensure that any employees with a SIN beginning with the number "9" have authorization to work in Canada by verifying the terms and conditions of their work permit.

Next Steps

We will continue to monitor this decision in the event leave to appeal to the Supreme Court of Canada is sought. Any relevant updates will be posted on this blog.

Footnote

1 Legal counsel should be consulted in connection with the implementation a special program as these programs must adhere to strict parameters to ensure Code compliance.

The authors would like to acknowledge the support and assistance of Caleb Cranna , articling student at law.

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.