Employers Beware: Revisions to Hiring Policies May Be Needed

In the recent decision of Imperial Oil Limited v Haseeb, 2023 ONCA 364, the Ontario Court of Appeal restored the Ontario Human Rights Tribunal decision which found that Imperial Oil had discriminated against Muhammad Haseeb (“Haseeb”) by requiring proof of Canadian Citizenship/Permanent Residency as a condition of employment. 

Haseeb was an international student who applied for a position at Imperial Oil as a project engineer.  Haseeb was offered the position on the condition that he provide proof of Canadian Citizenship or Permanent Residency.   While Haseeb was not a permanent resident, he was eligible to work full time anywhere in Canada for up to 3 years under a Post Graduate Work Permit (“PGWP”).  After Haseeb notified Imperial Oil that he was not a permanent resident, they revoked his offer. 

Haseeb then filed a human rights application alleging that the permanent residency requirement discriminated against him on the grounds of citizenship, contrary to the Ontario Human Rights Code (“Code”).

The Ontario Human Rights Tribunal found that it was discriminatory for employers to require job applicants to prove their Canadian Citizenship/Permanent Resident status to be eligible to work.  This decision was reversed by the Divisional Court where it was held that the Tribunal incorrectly attempted to include “permanent resident” status within the meaning of “citizenship” under the Code.  Haseeb appealed this decision to the Court of Appeal. 

The Court of Appeal held that Imperial Oil’s requirement for proof of Canadian Citizenship/Permanent Residency was discrimination on the grounds of citizenship because it excluded a group of non-Canadian citizens who were legally entitled to work full-time anywhere in Canada (not all non-Canadian citizens were excluded because of the exception for individuals with Permanent Resident status).  In coming to this conclusion, the Court of Appeal found that interpreting the Code in a manner that would allow for discrimination on the basis of ineligibility “to work in Canada permanently” would be contrary to the purposes of federal immigration law and programs like the PGWP.  The Court of Appeal did note that there is an exception under section 16(1) of the Code that would allow an employer to impose a Canadian citizenship requirement, but only when it is a “requirement, qualification or consideration imposed or authorized by law.”

In light of this decision, it is important for employers to review their hiring practices and policies.  Employers should be mindful during the recruitment process so to avoid any acts of discrimination, directly or indirectly, and be cognizant of claims of discrimination based on citizenship.