Canada, like Quebec, welcomes growing number of immigrants every year, particularly in the context of an important workforce need. The right to work of these migrants is based on their (eventual) Canadian citizenship, their permanent residency, or on a provincial and/or federal program. In connection with the foregoing, it is also a given that the right to work obtained under a work permit is de facto temporary, since the permanency of the right to work is subject to obtaining, at the very least, of the permanent residency.

In view of the above, some employers may be tempted to make permanent residence and/or citizenship a condition of employment. This condition of employment, in force at least in 2017 with the employer Imperial Oil for a position in Ontario, was discussed in the recent decision of the Ontario Court of Appeal, Imperial Oil Limited v. Haseeb, 2023 ONCA 364.

Analysis of the decision

The facts underlying this case can be succinctly summarized as follows:

• Muhammad Haseeb, a mechanical engineering student at McGill, is about to complete his academic training; upon completion, he will be able to work for a maximum of three (3) years anywhere in Canada, under the federal Post-Graduate Work Permit Program (the "PGWP"); 
• It should be noted that the PGWP provides access to permanent Canadian residency after one (1) year of full-time employment. Thus, Mr. Haseeb will eventually be able to obtain permanent residency and even Canadian citizenship (which he obtained in 2017 and 2022 respectively); 
• Haseeb received a conditional offer of employment from Imperial Oil Limited, which required him to have permanent residency status. This requirement had been discussed during the pre-employment interviews, but Mr. Haseeb lied about his immigration status, i.e. his lack of permanent residency, for fear that he would not be offered the position on this basis; 
• It was only following receipt of the conditional offer of employment that Mr. Haseeb disclosed his true status (anticipated holding of PGWP), resulting in the withdrawal of the job offer; 
• The facts in this case do not call into question Mr. Haseeb's eligibility for the PGWP and his imminent right to be able to legally work for the employer Imperial Oil Limited.

Thus, after having had the job offer withdrawn, Mr. Haseeb took recourse under the Human Rights Code^[1] (the "Ontario Human Rights Code"), and more specifically pursuant to its section 5, which prohibits with respect to employment any discrimination, direct or indirect, based on protected grounds, including the ground of citizenship.

For its part, the employer Imperial Oil Limited essentially argued that Mr. Haseeb's exclusion did not relate to the ground of citizenship, but rather to his immigration status, which is not protected by the Ontario Human Rights Code. In the same vein, Imperial Oil Limited also argued that the impugned condition of employment, that is the minimum holding of permanent residency status, also encompasses the notion of non-citizen, and therefore it would be inappropriate to conclude that the condition of employment is discriminatory under the protected ground of citizenship.

It should be noted, however, that at no time did Imperial Oil Limited put forward, in the alternative, for example, that if the condition were indeed aimed at the notion of citizenship, it would in any event be justified within the meaning of section 16(1) of the Ontario Human Rights Code, which could have been the basis of a defense in respect of the hiring condition at issue:

"Section 16 (1) A right under Part I to non-discrimination because of citizenship is not infringed where Canadian citizenship is a requirement, qualification or consideration imposed or authorized by law.”^[2]

In light of the foregoing, the Ontario Court of Appeal ultimately concluded as follows:

• The facts reveal a prima facie case of discrimination in hiring based on citizenship, given that this conclusion did not presuppose that this was the only reason, or even the predominant reason, for the withdrawal of the conditional offer of employment;
• Imperial Oil Limited was unable to rebut this presumption of discrimination. In the same context, the Ontario Court of Appeal recalled that partial discrimination of a protected group is discrimination;
• It is not appropriate to discuss the possible defence under section 16 of the Ontario Human Rights Code, as Imperial Oil Limited has (strategically) decided not to do so.

Possible parallels to be drawn with the Quebec legal framework?

The protected ground of citizenship that was central to Imperial Oil Limited v. Haseeb, 2023 ONCA 364, is not a protected ground under section 10 of the Quebec Charter of Human Rights and Freedoms (the "Quebec Charter")^[3].

That said, it would certainly be relevant to see how the "social condition" ground protected by the Quebec Charter would be received in a context similar to the facts discussed above. Indeed, the Commission des droits de la personne et des droits de la jeunesse has already considered, in a 2011 study, that discrimination based on a work permit could be analyzed under this ground^[4].

Furthermore, we take note that it is possible to detect in certain discussions in Quebec courts an intention to promote a more inclusive legislative system. For example, in Henriquez (Re), 2006 CanLII 65957 (QC C.L.P.) and Enriquez v. M.R.N., 2019 CCI 114, workers without permits were able to benefit from the protection of Quebec labour laws, such as the Act respecting industrial accidents and occupational diseases^[5].

[1] Human Rights Code (the « HRC») , R. S. O. 1990, c. H. 19

[2] S. 16(1) HRC.

[3] Charter of Human Rights and Freedom, RLRQ, C-12, s. 10

[4] Commission des Droits de la Personne et des Droits de la Jeunesse, La discrimination systémique à l’égard des travailleuses et travailleurs migrants, Montréal, 2011, p. 48.

[5] CQLR c A-3.001