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Posts tagged: hiring

Do you only hire workers who can work in Canada on a permanent basis?

By , September 25, 2018 9:56 am

Imperial Oil Limited recently found out the hard way that imposing a Canadian citizen requirement as a job qualification can be a costly mistake.

This case shows that the cost to respond to a human rights application filed by an unsuccessful job applicant can be significant even if a job applicant lies on his application form. The hearing in this case took 13 days.

The Facts

After graduating from McGill University Muhammad Haseeb applied for and obtained a “postgraduate work permit” (PGWP) for a three year term. The PGWP allowed him to work full time, anywhere and with any employer in Canada.

Mr. Haseeb then applied for an entry level position as Project Engineer at Imperial Oil. A condition of employment was that an applicant provide proof of his eligibility “to work in Canada on a permanent basis” by way of (1) Canadian birth certificate (2) Canadian citizenship certificate or (3) Canadian certificate of permanent residence (permanent resident card) or the “permanence requirement”. His permit did not satisfy the permanence requirement so he lied and said he could meet Imperial Oil’s permanence requirement. He went through the application process and was offered a job conditional on proving proof he could “work in Canada on a permanent basis”. He couldn’t so the offer was revoked.

The Issue

Mr. Haseeb claimed that Imperial Oil’s permanence requirement violated his right not to be discriminated against on the basis of citizenship and that the permissible ways to discriminate on the basis of citizenship did not apply.

The Law

Section 5. (1) of the Ontario Human Rights Code states: “ Every person has a right to equal treatment with respect to employment without discrimination because of …citizenship, …”

Discrimination of the basis of citizenship is permitted in the situations set out in section 16 of the Code: namely:

  1.  (1) Canadian Citizenship – A right under Part I to non-discrimination because of citizenship is not infringed where Canadian citizenship is a requirement, qualification or consideration imposed or authorized by law.(2) – A right under Part I to non-discrimination because of citizenship is not infringed where Canadian citizenship or lawful admission to Canada for permanent residence is a requirement, qualification or consideration adopted for the purpose of fostering and developing participation in cultural, educational, trade union or athletic activities by Canadian citizens or persons lawfully admitted to Canada for permanent residence.

    (3)  A right under Part I to non-discrimination because of citizenship is not infringed where Canadian citizenship or domicile in Canada with the intention to obtain Canadian citizenship is a requirement, qualification or consideration adopted by an organization or enterprise for the holder of chief or senior executive positions.

Decision

The adjudicator concluded that Imperial Oil’s eligibility requirement directly discriminated against job applicants on the basis of citizenship and that none of the defences set out in section 16 applied.

In coming to this conclusion the adjudicator stated:

To obtain protection from discrimination under the Code on the basis of “citizenship”, the applicant need only establish that the alleged discriminatory treatment is linked to his personal characteristic of being a non-citizen of Canada (or non-Canadian citizen).

It is thus the Tribunal’s view that in direct discrimination cases … no general BFOR defence is available to a respondent. A respondent in a direct discrimination case has only statutory defence(s) available to excuse a conduct or policy that is found to discriminate in a direct (or express, targeted) manner “where the requirement expressly included a prohibited ground of discrimination” …

In the alternative, assuming the bona fide occupational qualification (or BFOQ) defence was available, the adjudicator concluded this defence was not proved. In particular, “Given the …(conclusion) that I(mperial) O(il)’s permanence requirement is not an “occupational requirement’, there is no need for this Tribunal to examine at length the bona fides or honesty of IO’s belief that the requirement achieved its purported purpose of succession planning and retention of trained employees, or, to examine IO’s assertion of undue hardship.”

Lessons to be Learned

  1. Employers should not establish overly restrictive citizen requirements for jobs –  especially for entry level positions.
  2. An unsuccessful job applicant can file an on-line no-cost human rights application and the applicant is not required to hire a lawyer to do so. The Human Rights Legal Support Centre provides free legal advice to job applicants who want to commence these legal proceedings.
  3. The cost to defend a human rights application can be staggering. An employer should carefully prepare for the three-hour mediation that takes place near the beginning of the application process and try to negotiate a settlement at the mediation (or before) if a reasonable settlement can be reached at that time.

For over 30 years, Doug MacLeod of the MacLeod Law Firm has been advising employers on all aspects of the employment relationship. If you have any questions, you can contact him directly at 416-317-9894 or at [email protected]

The material and information in this blog and this website are for general information only. They should not be relied on as legal advice or opinion. The authors make no claims, promises, or guarantees about the accuracy, completeness, or adequacy of any information referred to in this blog or its links. No person should act or refrain from acting in reliance on any information found on this website or blog. Readers should obtain appropriate professional advice from a lawyer duly licensed in the relevant jurisdiction. These materials do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.

Hiring Employees In Ontario, Canada | Navigating the Employment Law Waters

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By , July 27, 2012 11:50 am

Hiring Employees in Ontario, Canada

If you are thinking about hiring employees in Ontario, Canada here are five issues you’ll need to consider:

1.    Do federal or provincial laws apply?

About 90% of Ontario employees are governed by provincial laws.

Federal laws apply to employees who work for federal undertakings such as the federal government, banks, and telecommunication companies.

2.    What provincial laws apply?

There are several Ontario employment statutes including

–       the Employment Standards Act which sets out numerous minimum standards including hours of work,  minimum notice of termination, and severance pay;

–       the Human Rights Code which prohibits employment discrimination on 16 prohibited grounds such as sex, race, sexual orientation, and disability;

–       the Occupational Health & Safety Act  which imposes numerous safety obligations on, among others, owners, directors, and employers;

–        the Workplace Safety & Insurance Act which determines compensation for workplace injuries;

–       the Pay Equity Act which mandates equal pay for work of equal value; and

–       the Accessibility For Ontarians with Disabilities Act which requires employers to take measures to accommodate people with disabilities

3.    What judge made laws apply?

There are many legal proceedings that an employee can bring against his or her former employer including

–       a wrongful dismissal action if the employer did not provide the employee with “reasonable notice of termination. Damages are generally up to 24 months remuneration.

–       a no cost complaint under the Employment Standards Act where orders cannot generally exceed $ 10 000, or under the Human Rights Code where damage awards are theoretically unlimited.

–       an action in the courts for violating an employee’s privacy rights (i.e. the tort of the inclusion upon seclusion.

4.    What laws apply to unionized employees?

The laws mentioned above apply to both union and non-union employees.

About 28 % of Ontario’s workforce is unionized.

The process for unionizing an employer is set out in the Ontario Labour Relations Act. There is a different labour relations regime for the construction industry. Generally, a union files a written certification application, the employer has two days to respond, and an employee vote can be scheduled within five days of the union application.

5.    How does one navigate Ontario’s Employment Law waters?

There are numerous free on-line resources, particularly from the Ontario Ministry of Labour.

There are scores of employment law lawyers in Ontario particularly in the Greater Toronto Area.

Some employment law firms offer complimentary seminars on different employment law issues. In addition, a number of employment lawyers tweet and blog on employment law issues.

If you have any employment law questions, please call us at 1–888-640-1728 or email us at [email protected]. You can follow us on twitter (@MacLeodLawFirm) or subscribe to our employment law blog at www.macleodlawfirm.ca/employers 

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