Citizenship & Immigration Status: Don’t Ask

In a recent case, the Human Rights Tribunal of Ontario held that employers cannot discriminate against job applicants who do not have Canadian permanent resident status or citizenship but have work permits.

As a recent graduate of McGill University, Muhammad Haseeb applied to and was offered a position as an engineer by Imperial Oil in Sarnia in 2014. Haseeb was eligible for a three-year postgraduate work permit to stay and work in Canada. However, Imperial Oil later rescinded the offer after learning that Haseeb was not a permanent resident of Canada.  Haseeb subsequently filed a complaint in 2015 alleging that Imperial Oil discriminated against him on the basis of his citizenship status, contrary to the Human Rights Code.

During the hearing, Imperial Oil took the position that the permanent resident status was a “bona fide requirement” for the entry-level position because there was a large pool of qualified new graduates with permanent resident status to choose from. Further, Imperial Oil stated that by hiring someone without permanent resident status, it would risk losing its investment of time and money in training someone who cannot stay in the country indefinitely.

The Tribunal rejected Imperial Oil’s arguments and held that Imperial Oil’s policy of asking job candidate about their citizenship and immigration status violated the law:

IO’s requirement amounted to a direct breach of the code when it distinguished among job candidates who were eligible to work in Canada on the basis of citizenship and create categories of “eligible” and “ineligible” for progressing through screening process.

For Ontario employers, it now appears that there is an obligation to consider all job applicants who are legally able to work in Canada regardless of their citizenship status. Therefore, going forward, Ontario employers would be well advised to stop inquiring about the candidate’s citizenship status in job applications – though employers can still ask whether the candidate is legally able to work in Canada. Failing that, employers could face a significant risk of legal fight.  

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