Ontario Court of Appeal looks at case involving foreign student offered job at Imperial Oil
The Ontario Court of Appeal has restored a finding that a foreign worker with a permit to work in Canada was discriminated against when his job offer was revoked for not being a permanent resident or a Canadian citizen.
“The federal immigration program [under which the worker had his permit] is undermined when job postings are restricted to Canadian citizens and permanent residents that exclude these permit holders,” says Paulette Haynes, principal of Haynes Law Firm in Toronto.
“The Court of Appeal found the tribunal’s interpretation to be quite in alignment with the federal immigration law requirements.”
Eligibility requirement for foreign students
The worker was a foreign student attending a Canadian university on a student visa. Upon graduation in January 2015, he was eligible for a Post-Graduate Work Permit (PGWP), which would allow him to work full-time anywhere in Canada for any employer for up to three years. The PGWP is part of a federal immigration program to attract international students to attend Canadian universities and colleges and then provide a source of skilled labour in Canada. Someone working under a PGWP is eligible to apply for permanent resident status after one year of full-time work, which would be granted with six to 18 months if successful.
During the worker’s final semester, he applied for an entry-level engineer position at Imperial Oil in Sarnia, Ont., to begin in February 2015. There was no doubt that he would obtain his PGWP upon graduation and he anticipated obtaining permanent resident status within a couple of years.
The posting for the job stated that applicants must be “permanently eligible to work in Canada.” The worker was worried that he would be screened out, so he lied and said that he was eligible to work in Canada permanently.
Imperial Oil offered the worker the position on Dec. 2, 2014, reiterating that the offer was conditional on him providing proof that he was eligible to work in Canada on a permanent basis. On Dec. 10, the worker advised that he would initially be working under a PGWP for three years. He said that before the PGWP expired, he would obtain permanent residence and asked if the company could make an exception until then.
On Jan. 8, 2015, Imperial Oil withdrew the job offer because the worker did not meet the conditions of employment. Shortly thereafter, the worker graduated and obtained his PGWP.
The worker filed a complaint alleging that Imperial Oil discriminated against him on the basis of citizenship, as the requirement of permanent eligibility to work in Canada created a disadvantage for non-citizens like him who had a lawful right to work in Canada.
Eligibility not based on citizenship: employer
Imperial Oil countered that it did not discriminate because candidates did not have to be citizens to meet the requirement, only permanent residents, and it was a bona fide occupational requirement (BFOR). It also claimed that it rescinded the job offer because of the worker’s dishonesty about his status.
The worker became a permanent resident in June 2017.
The Ontario Human Rights Tribunal determined that Imperial Oil directly discriminated against the worker by imposing an employment condition based on citizenship, and the company did not establish that the worker’s citizenship status was not part of the reason for withdrawing the job offer.
Since the goal of the PGWP program was to get to Canadian citizenship, it was a reasonable expectation that the worker would be able to work permanently in Canada, says Haynes.
“There was expert immigration evidence put before the tribunal that basically said the PGWP holder is likely to get permanent residency status within six to 18 months after they've applied,” she says. “[The worker] was not a permanent resident at the time of the job application, but he was going to be eligible - so the bottom line is, but for the permanent residence requirement, [the worker] would have been in a position to accept the offer of employment.”
The tribunal awarded more than $120,000 to the worker for lost income and injury to dignity, feelings, and self-respect. Imperial Oil appealed to the Ontario Divisional Court.
Employers should be cautious with the language used in job postings when it comes to citizenship requirements, says an employment lawyer.
Tribunal’s decision on permanent residency quashed
The court quashed the decision, finding that the tribunal had created a new ground of discrimination by including permanent resident status in the protected ground of citizenship. It found that it was unreasonable to interpret the code’s prohibition against citizenship discrimination as covering non-Canadian citizenship, which could allow any person denied employment because they weren’t eligible to work in Canada to claim discrimination. The court also found that it was a reasonable and BFOR to require a prospective employee to have a permanent right to work in Canada.
The worker appealed.
The Ontario Court of Appeal found that the worker would be permitted to work full-time in Canada for any employer for three years by the time the job at Imperial Oil started. As a result, it was reasonable for the tribunal to determine that the requirement that only Canadian citizens and permanent residents were eligible for the position was discrimination.
The policy denied eligibility for the job only to non-Canadian citizens, and the fact that the company excepted one class of non-citizens, permanent residents, didn’t mean the policy wasn’t discriminatory. It still directly discriminated against PGWP holders and the company did not establish a reasonable defense justifying that discrimination, the appeal court said.
The appeal court also found that s. 16 of the code provides a right to differentiate where “Canadian citizenship or lawful admission to Canada for permanent residence is a requirement, qualification or consideration” or is necessary for holding a “chief or senior executive position.” This language contemplated that “permanent residence” and “Canadian citizenship” could both form the basis of a claim of discrimination on the ground of citizenship, the appeal court said, adding that the code prohibited employers from placing “additional barriers on non-citizens beyond the limits imposed by their status in Canada under federal immigration law.”
The federal government allowed applicants for permanent residence to hold an open work permit while awaiting the results of their application.
Direct discrimination in hiring
In addition, the appeal court agreed with the tribunal that the discrimination was direct. On its face, Imperial Oil’s policy excluded a subset of non-Canadian citizens eligible to work in Canada from hiring, said the court.
“The Court of Appeal and the tribunal were of this view that, even though it wasn't all non-Canadian citizens who were excluded, the excluded group included non-Canadian citizens who had a right to work,” says Haynes.
The Court of Appeal also found that the Divisional Court mischaracterized the tribunal’s analysis as creating a new ground of discrimination. The code included permanent residence as a possible point of discrimination within citizenship, the appeal court said.
As for the Divisional Court’s concern over opening the floodgates for any non-Canadian citizen to claim discrimination, the Court of Appeal said this reasoning was flawed – the worker had the right to work through the PGWP, which would not be the case for any non-citizen.
Employers can discriminate against job applicants as long as it doesn’t breach human rights legislation, says an employment lawyer.
Dishonesty not a factor in revoking of job offer
The appeal court also found that Imperial Oil did not show that the worker’s dishonesty was the sole reason for dismissal, as the letter withdrawing the job offer did not mention it and stated that it was because the worker couldn’t provide proof of citizenship or permanent residence.
“Nowhere in the letter does it say that the reason for revoking the offer is about the worker’s dishonesty,” says Haynes. “[And there was] no evidence of any internal correspondence that Imperial Oil was thinking about waiving the [permanent residence] criteria and then decided not to because of his dishonesty.”
“Partial discrimination does not equal non-discrimination for purposes of the code,” she adds. “If an employer says they are not hiring somebody or they're revoking something, it has to be exclusively for a non-prohibited ground, not a mix of one of the two.”
The Court of Appeal set aside the Divisional Court’s decision and restored the tribunal’s determination.
Haynes suggests that employers will have to carefully review their recruitment and hiring processes and job postings, and be cognizant of possible claims of discrimination based on citizenship.
“We're really going to have to pay some attention to this idea of discrimination on the grounds of citizenship - what we now know is that permanent residency is intrinsically included in that ground,” she says. “Unless the employer can justify their practices with s. 16 [of the code] in mind, they should be very careful about how they frame their job opportunities.”
