Employment Discrimination based on Citizenship, The Lawyer’s Daily (September 12, 2018)

13 Sep Employment Discrimination based on Citizenship, The Lawyer’s Daily (September 12, 2018)

EMPLOYMENT DISCRIMINATION BASED ON CITIZENSHIP
By Nikolay Y. Chsherbinin

Canadian citizens and permanent residents have an unrestricted right to work for any employer in Canada. Non-citizens’ right to work is restricted by a statutory requirement to obtain a work permit. When employers make a distinction between job candidates on the basis of a person’s immigration status it may lead to an allegation of discrimination on the basis of citizenship, a prohibited ground of discrimination under the Human Rights Code (“Code“).

A recent case in point is Haseeb v. Imperial Oil Limited, 2018 HRTO 957, where the Human Rights Tribunal of Ontario determined that a job posting that required a candidate to be able to work in Canada on a permanent basis resulted in discrimination based on citizenship.

Haseeb concerned a foreign national, Muhammad Haseeb, who was in Canada on a student visa. As an international student, in his final term at McGill University, Haseeb submitted an online application for an entry level position with Imperial Oil. As a graduate, Haseeb expected that on completion of his studies he would be able to start work soon afterward. His expectation was rooted in his belief that he would qualify for a post-graduate work permit (PGWP). If obtained, the PGWP would have allowed him to work for any employer in Canada.

After a series of interviews, Imperial Oil made a job offer to Haseeb, which contained a time-sensitive condition that required him to provide proof of his eligibility to “work in Canada on a permanent basis.”

Having been unable to provide proof, Haseeb conceded that he misled Imperial Oil about his ability to work in Canada on a permanent basis. As a result, Imperial Oil rescinded its expired offer of employment. In response, Haseeb brought an application before the tribunal claiming that he experienced discrimination in employment (hiring process), based on his citizenship.

The central issue in Haseeb’s application was Imperial Oil’s breach of sections 23(1) and 23(2) of the Code, which are infringed when a job advertisement and verbal requests at job interviews indicate qualifications based on a prohibited ground of discrimination. Represented, in this case, by a requirement for Haseeb to be able to work in Canada on a permanent basis.

Ultimately, the tribunal found this pre-employment requirement discriminatory. Haseeb’s dishonesty in his responses to Imperial Oil regarding his eligibility to work on a permanent basis was found to be irrelevant to deciding whether the Code was breached. The tribunal was satisfied that Imperial Oil’s decision to not hire Haseeb was tainted by the permanence requirement. The focus of its inquiry was, thus, on Imperial Oil’s conduct during the candidate selection process.

As a foreign national, Haseeb is subject to the Immigration and Refugee Protection Act (“IRPA“) and the Immigration and Refugee Protection Regulations (“IRPR“). The IRPA is a federal statute of public order, which regulates who may work in Canada.

Under the IRPA/IRPR regime, it is impossible for a foreign national to obtain employment in Canada without directly contravening explicit parliamentary policies. Section 30(1) of the IRPA states: “a foreign national may not work … in Canada unless authorized to do so under this Act.” Section 196 of the IRPR mandates: “a foreign national must not work in Canada unless authorized to do so by a work permit or these Regulations.” Section 124 of the IRPA makes it an offence for any person to “contraven[e] a provision of this Act,” whereas s. 125 imposes both criminal and civil penalties, ranging from a fine of up to $50,000 to an imprisonment of not more than two years.

In Haseeb, the tribunal found that at the time Haseeb submitted his job application he had not yet obtained the PGWP. Despite this, the tribunal concluded that Imperial Oil’s requirement that job candidates were able to work in Canada on a permanent basis screened out international students, who “were eligible for [PGWP] on graduation.”

Respectfully, the tribunal appears to have conflated eligibilities with rights, which do not concur.

As an international student, Haseeb acquired no right to the PGWP, but an expectation of it. Rights and expectations differ, of course, as do wants and needs.

While Haseeb may be eligible for the PGWP, his expectation that he will qualify for it is symbolic unless he obtains it. Consequently, pursuant to the IRPA/IRPR regime, at the time Haseeb applied for and was offered employment by Imperial Oil he was deemed to have been legally unavailable to perform the work due to the absence of a work permit. Nor could Imperial Oil employ Haseeb without the work permit, as it would have put it in direct contravention of s. 124 of the IRPA and subjected it to serious statutory penalties.

Given that Haseeb was legally unavailable for work, the fact that he applied for work should not have resulted in accrual of the Code protection. It was open for Imperial Oil to argue that Haseeb’s rights under the Code could not have been infringed due to the operation of the IRPA/IRPR regime that forbids foreign nationals from engaging in employment without a valid work permit. This mandatory statutory requirement is a bona fide occupational requirement and cannot be subject to waiver.

Haseeb concerned a somewhat novel issue involving discrimination based on citizenship in the context of hiring. It reaffirmed that anyone can bring an application under the Code. To have standing, a person need only allege that his or her rights have been infringed. Haseeb illustrates that it is the wording of its job posting that did Imperial Oil in. Should it have simply required candidates to prove that they were authorized to work in Canada, Imperial Oil may have escaped liability.

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