Under the Ontario Human Rights Code (the “Code”), discrimination on the basis of citizenship is prohibited. This means that, as in other social areas, an employer cannot make decisions based on an individual’s citizenship status.
A key question arises: Does this protection extend to prohibit employers from making canadian citizenship or permanent residency a precondition to employment?
In Haseeb v Imperial Oil Limited, 2018 HRTO 957, the Human Rights Tribunal of Ontario (the “Tribunal”) answered “yes.” The Tribunal decided that requiring Canadian citizenship or permanent residency as a pre-condition to employment was discriminatory and a breach of the Code.
Mr. Haseeb was an international student enrolled in his final year of an engineering program at a Canadian university. Under Canadian immigration policies, his status as a university student meant that upon graduation he was automatically entitled to a Canada-wide, unrestricted work permit for a guaranteed three-year period. After completing his studies, Mr. Haseeb applied for a position with Imperial Oil. The job posting required applicants to be Canadian citizens or permanent residents. Believing that his three-year work permit could easily transition into permanent residency status, he applied for the position. Initially not disclosing his work permit status, he successfully passed the interview process and received a job offer. However, the position required him to provide proof of his ability to work in Canada permanently via his birth certificate, passport or permanent residency card. Other than his three-year work permit, Mr. Haseeb was unable to provide proof of his ability to work in Canada permanently. Imperial Oil refused to accept this and rescinded its offer.
In an interim decision, the Tribunal held that the requirement to have permanent working status was discriminatory on the basis of citizenship. The tribunal acknowledged that the Code, as argued by the respondent, provides a defence if the discriminatory requirement was a bona fide occupational requirement. However, the tribunal rejected this argument, finding that the provision only applies to requirements that have a discriminatory effect, not those that are directly discriminatory on its fact. In this case, the citizenship requirement was considered a direct breach of the Code.
The Tribunal, acknowledging that there is jurisprudence away from the direct-indirect analysis of discrimination, then considered whether a defence did properly exist. The Tribunal considered the three-prong test to determine if the requirement was legitimate but ultimately concluded that it failed on each prong. Although the employer argued that the requirement was necessary to retain long-term employees, the Tribunal found this was not a valid occupational requirement. The Tribunal found no rational reason why citizenship or permanent residency was related to the essential duties of the job.
This case illustrates the scrutiny that the tribunal will place on workplace policies which are prima facie discriminatory. While in this case, the prima facie case was clear and obvious given the explicit language of the requirements, in other cases an initial finding of discrimination may be more nuanced and difficult to establish. Discriminatory practices and policies are often less explicit and carry many legal obstacles in pursuing discrimination claims.
Contacting an experienced human rights lawyer can assist in determining whether the discrimination you have faced can properly be adjudicated by a human rights tribunal or court of law. The Haseeb case serves as a useful reminder and cautionary tale for employers who aim to comply with their legal obligations under the Code and helps clarify the protections afforded to foreign-born workers in Canada.