Requiring proof of eligibility to work in Canada on a permanent basis discriminatory
Worker eligible for temporary work permit and anticipated permanent residency within 3 years, but employer required proof of permanent residency or citizenship
08/10/2018|employmentlawtoday.com|Last Updated: 08/10/2018
Cars pull into an Esso gas station in Richmond Hill, Ont., January 30, 2015. Imperial Oil is Canada's No. 2 integrated oil producer and refinery. REUTERS/Mark Blinch
In a recent decision released by the Human Rights Tribunal of Ontario, the tribunal found that an employer discriminated against a potential employee on the basis of citizenship when it required proof of eligibility to work in Canada on a permanent basis (Canadian citizenship or permanent residency) as a condition of employment.
In Haseeb v. Imperial Oil Limited, the applicant, a student at McGill University completing his engineering degree, applied for an entry level engineering position at Imperial Oil during his final semester. At the time, he was an international student on a student visa. Upon graduation, he would become eligible for a “postgraduate work permit” (PGWP) for three years which would allow him to work full-time, anywhere, and with any employer in Canada. He anticipated that he would attain permanent residency status within three years.
Imperial Oil required graduate engineers to have permanent residency or Canadian citizenship and asked a number of questions throughout the application process about whether the applicant was eligible to work in Canada on a permanent basis, to which he repeatedly responded “Yes.” He was successful in Imperial Oil’s multi-step selection process and was offered a job, conditional upon providing documentary proof of citizenship or permanent residency. When he was unable to provide such proof, the offer was rescinded.
At the hearing, Imperial Oil argued that his dishonesty during the interview process (namely, lyempling about his eligibility to work in Canada) was the reason the offer was rescinded. However, the tribunal Vice-Chair found that the offer had actually expired when he failed to provide the required documents, and in any event, the evidence did not prove that this was the sole reason he was not hired. Further, the Vice-Chair found that Imperial Oil’s hiring policy was directly discriminatory on its face, and as a result, it could not rely upon an argument that permanent eligibility to work in Canada was a bona fide occupational requirement. In any event, she further found that it was not, as it was a requirement that was occasionally waived (by providing offers conditional upon obtaining permanent residency within a few years) for candidates whose skills were in high demand.
The tribunal is waiting to provide a decision on the appropriate remedy following submissions by the parties.
In light of this decision, employers should carefully review their hiring documentation and practices. While requiring proof of eligibility to work in Canada is permissible (and in fact required), employment decisions cannot be made on the basis of permanent eligibility to work in Canada.
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Nadine S. Zacks is an associate with Hicks Morley LLP in Toronto, advising public and private sector employers on a wide range of labour and employment issues. She can be reached at (416) 864-7484 or email@example.com.