Discrimination against applicant who was not a Canadian citizen costs company $120,000
Back in the fall of 2018, Brittany Taylor and I wrote about the case of Haseeb v. Imperial Oil Limited, in which the Human Rights Tribunal of Ontario confirmed that an employer’s hiring policy — which required a job candidate to be legally eligible to work in Canada on a permanent basis — constituted direct discrimination on the basis of citizenship.
The tribunal did not order a remedy, instead offering the parties the chance to determine an appropriate remedy through negotiation and return to the tribunal if they were unable to agree. They could not reach a resolution and, as a result, the tribunal was asked to determine how Muhammad Haseeb should be compensated for the breach of his human rights.
The facts
By way of brief background, Haseeb applied for employment as an engineer at Imperial Oil. At the time, he was an international student at McGill University in Montreal with a student visa. Upon graduation, Haseeb would become eligible for a postgraduate work permit for a fixed term of three years, which would permit him to work anywhere and with any employer in Canada.
He anticipated that he would attain permanent residency prior to the expiry of this work permit, and planned to settle and work in Canada indefinitely after his graduation.
Imperial Oil had a policy that all applicants for graduate engineer positions had to be eligible to work in Canada on a permanent basis in order to be considered. At several points in the lengthy selection process, Haseeb was asked by Imperial Oil to confirm his eligibility to work in Canada on a permanent basis. Haseeb knew of the company policy and, as a result, he falsely confirmed that he was able to work in Canada on a permanent basis.
Haseeb was the top ranked candidate and was offered a job with Imperial Oil, conditional on a number of items, including the requirement that he provide proof of his eligibility to work in Canada on a permanent basis. When he was unable to do so, the company rescinded the job offer.
The tribunal found that Imperial Oil had breached Haseeb’s human rights by discriminating against him on the basis of his citizenship status. Although Haseeb was dishonest in the hiring process, his dishonesty was for the purpose of avoiding discriminatory treatment.
Damages for lost income
So, what is a case like this worth? Well, the Human Rights Tribunal will typically award two types of damages:
- damages for lost income
- compensation for injury to dignity, feelings and self-respect.
The compensation for lost income is very different than the assessment of damages for wrongful dismissal. At the tribunal, successful applicants are to be put in the position they would have been in but for the discriminatory action.
That usually means that they will receive compensation up to the date of the hearing, which can be years (as it was in this case). The usual factors in assessing common law notice entitlement, such as length of service, age, position and availability of similar employment, are irrelevant.
Furthermore, even if there is a termination clause in the individual’s contract that limits their entitlement to severance, that will not limit damages for lost income at the tribunal.
According to vice-chair Mark Hart:
“It is well-established that in human rights cases, an award for lost income is not limited to the period of reasonable notice, as in a wrongful dismissal claim, but extends over such period of time as is required to restore an applicant to the position they would have been in but for the discrimination…”
“This calls upon the tribunal to consider, to the best of its ability, what more likely than not would have happened if an applicant’s employment had not been terminated for a discriminatory reason or, as in this case, if the applicant’s job offer had not been rescinded for a discriminatory reason or on the basis of his answers to discriminatory questions.”
Having found that it was more than likely that the employment would have been long-term, the tribunal awarded lost income over a period of over four years, up to the date of the hearing.
Compensation for injury to dignity, feelings and self-respect
In assessing this form of damages, Hart confirmed that there are two criteria to consider:
- the objective seriousness of the conduct
- the effect on the particular applicant who experienced discrimination.
The tribunal found that “the decision to deny the applicant employment in an entry-level engineering position at the very start of his career was objectively serious.”
On the second criterion, the tribunal noted that although there was no medical evidence (and no requirement for such), “the objective facts are that the applicant was a young man at the very start of his career who had aspirations to work as an engineer in the oil and gas sector, and these dreams were effectively taken away from him. I also note the applicant’s particular vulnerability as an immigrant to Canada with uncertainty as to his status at the relevant time.”
Lastly, the tribunal confirmed that another factor “this tribunal takes into account in awarding compensation is to make awards that are consistent with awards made in other similar cases.”
Impact of dishonesty
The tribunal did address Haseeb’s dishonesty in the context of the appropriate remedy and reviewed some previous case law. That included Davis v. Toronto (City), a case in which the Applicant’s dishonesty resulted in him not receiving compensation. Hart noted that finding a breach of the code does not automatically result in damages for lost wages. In that case, “the tribunal declined to award compensation for lost income on the basis that but for the discriminatory act of considering his disability as a factor, the complainant still would not have been hired due to his dishonesty in the hiring process that was not in response to a discriminatory act and therefore was non-discriminatory.”
In other words, the complainant in that case would not have been hired anyway, so he did not suffer lost income due to the breach of the Code. That was found to be different than the situation in Imperial Oil.
With respect to Haseeb, Hart found as follows:
“While I have found that the applicant’s dishonesty in the hiring process would not have occurred but for the respondent’s discriminatory questions, it is my view that the applicant’s conduct contributed at least in some measure to the impacts that he described in his testimony, particularly in relation to his reputation being put on the line as a consequence of the human rights application and being called a liar in the media.”
Ultimately, the tribunal ordered the following:
- $101,363.16 as monetary compensation for lost income
- $15,000.00 without deduction as monetary compensation for injury to dignity, feelings and self-respect
- $3,997.54 as pre-judgment interest on the foregoing amounts.
