header_iceberg.jpg

Posts tagged: Residency Status

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 He couldn’t so the offer was revoked.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.

Panorama Theme by Themocracy