Canadian citizenship or permanent residency should not be a hiring requirement

It is well known that employers cannot discriminate against a job candidate based on a human right protected grounds, such as sex, race, or religion, among others. However, it has been less clear whether an employer is or is not allowed to ask about Canadian citizenship or permanent residency when hiring an employee. On the one hand, employers are entitled to know if an employee is eligible to work in Canada. But on the other, citizenship is a protected ground under the Ontario Human Rights Code and employees are entitled to be free from discrimination on that basis.

Fortunately, in the recent decision of Imperial Oil Limited v. Haseeb, 2023 ONCA 364, the Ontario Court of Appeal chimed in and provided some welcome clarity on the topic. The Court ruled decisively that asking about citizenship during the hiring process is a no go.

The Background Facts:

Mr. Haseeb was a student at McGill University in Montreal, studying engineering. At the time, he was a citizen of Pakistan and in Canada on a student visa. Upon graduation, he would have been eligible to remain and work in Canada for 3 years on a Post-Graduate Work Permit ("PGWP").

During his final semester of study, Mr. Haseeb applied for a job with Imperial Oil Limited ("Imperial"). The job posting required him to be permanently eligible to work in Canada and that proof of eligibility "must be in the form of your Canadian birth certificate, Canadian citizenship certificate or Canadian certificate of permanent residence".

Mr. Haseeb, fearful he would be screened out, lied and confirmed he met the requirement on his initial application. He then repeated the lie during the interview process, including untruthfully indicating he had received his permanent residency and Social Insurance Number (SIN) the previous year.

Mr. Haseeb was selected for the job and offered employment conditional on him providing proof of his eligibility to permanently work in Canda by way of birth certificate, Canadian citizenship certificate or Canadian certificate of permanent residence.

At that point, Mr. Hasseb came clean and advised he would have to work on a PGWP, but that it would be valid for three years and, and that before it expired, he would obtain permanent residence in Canada.

Imperial revoked his job offer on the basis that he did not meet the conditions of employment set out in the offer. He was invited to reapply when he was eligible to work in Canada permanently.

Mr. Haseeb filed a human rights complaint alleging discrimination on the basis of citizenship. Imperial argued it was not discrimination based on citizenship because of the exception for permanent residents; rather the policy distinction was based on "immigration status". It further argued it withdrew the offer because of Mr. Haseeb's dishonesty, not because he was unable to fulfil its permanent eligibility requirement.

Previous Decisions:

HRTO:

At first instance, the Human Rights Tribunal of Ontario sided with Mr. Haseeb. It found that Imperial had directly discriminated against Mr. Haseeb on the basis of citizenship and that Mr. Haseeb's dishonesty was not the sole reason for withdrawing the offer, it was clear his citizenship status was also a factor.

Mr. Haseeb was awarded ~$120,000 in damages.

Divisional Court:

On review, the Divisional Court overturned the HRTO's decision. The Divisional Court found that the HRTO had acted unreasonably in finding the requirement for Canadian citizenship or permanent residency to be discriminatory. It found this effectively protected against discrimination based on "permanent residence" when that is not a Code protected ground. Further, it envisaged a situation where any person denied employment because they are not eligible to work in Canda could claim discrimination based on citizenship and that went beyond a reasonable interpretation of the Code.

Mr. Haseeb subsequently appealed the Divisional Court decision to the Ontario Court of Appeal.

Court of Appeal Outcome:

The Court of Appeal sided with Mr. Haseeb and re-instated the HRTO decision.

Analysis:

The key question for the Court of Appeal was whether the HRTO's initial decision in favour of Mr. Haseeb was reasonable. In finding that it was, the Court of Appeal found that Imperial's policy denied eligibility for the position only to non-Canadian citizens. The fact Imperial made an exception for permanent residents did not prevent it from being discrimination based on citizenship. The Court held that "policies that discriminate on the basis of a prohibited ground are not saved on the basis they only partially discriminate."

The Court of Appeal also noted that in this particular context, the harmony between the HRTO's interpretation of discrimination and federal immigration law and policy, supported the reasonableness of the interpretation. Specifically, the purpose of the PGWP program is to create a pathway to Canadian citizenship for international students who come to Canada to study and who intend to settle in Canada. It found the purpose of the program would be undermined if job postings are restricted to Canadian citizens and permanent residents.

Takeaways:

There are a couple important takeaways from this decision:

• Citizenship and permanent residence requirements are not permitted: With limited exceptions, employers should not be asking candidates about their citizenship or requiring proof of citizenship or permanent residency as part of the hiring process.
• Eligibility requirements are permissible: Employers are still allowed to require candidates to provide proof of eligibility to work in Canada. However, there should be leeway to provide proof that is not citizenship or permanent residency, for example, proof of PGWP or another visa which allows the individual to work in Canada.
• Ask at the right time: Employers should only ask for proof of eligibility to work in Canada after the decision to hire the candidate has been made and a conditional offer extended. Asking a candidate to provide this kind of documentation early in the hiring process could result in them revealing information about their citizenship or another protected ground, such as place of origin. If the candidate is then not hired, that could form the basis of a human rights complaint.
• Reflect on hiring practices: More generally, this case reminds employers of the importance of carefully reviewing and evaluating hiring practices to make sure they are Code compliant. Employers should not be asking about or making hiring decisions based on any Code protected ground, with limited exceptions.

If you have questions on your human right obligations or rights during the hiring process, please reach out to a member of the Lee Workplace Law team. We would be happy to assist.