As a part of their job-application process, many employers ask applicants a question about the applicant’s ability or eligibility to work in Canada. Depending on the exact wording of that question, it may violate the Human Rights Code (the “Code”). Such a violation could be costly.
In 2018, the Ontario Human Rights Tribunal issued the high-profile decision of Haseeb v. Imperial Oil Limited, 2018 HRTO 957. An international engineering student from McGill University applied for employment with Imperial Oil. During the recruitment process, he was asked several times whether he was eligible to work in Canada on a “permanent basis”. The Applicant was eligible to work in Canada for three years pursuant to a “postgraduate work permit”. The Applicant learned that Imperial Oil recruiters required engineers to have permanent residency or citizenship to be eligible to apply for a permanent engineering job. In fact, he was asked to provide a Canadian birth certificate, citizenship certificate, or certificate of permanent residence to prove his eligibility to work in Canada on a “permanent basis”.
The Tribunal concluded that the permanence requirement was discrimination in employment on the basis of citizenship:
[11] The … “permanence requirement” is discrimination based on the ground of “citizenship”. While a definition of “citizenship” is not contained in the Code, a reading of the three defences available under section 16 of the Code indicates that the legislature contemplated that any requirement, consideration etc. that distinguished among individuals on the basis of either “Canadian citizenship”, “permanent residence” status or “domicile in Canada with intention to obtain citizenship” is discrimination unless the requirement is imposed or authorized by law, or the other criteria are met for each of three defences. More specifically, in the Tribunal’s view, 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 created categories of “eligible” and “ineligible” for progressing through IO’s screening process. IO’s requirement was not excused by s.16(1) of the Code as IO was not adhering to a requirement that was authorized or imposed by law…
The Tribunal did not issue a remedy in the 2018 decision, instead leaving it to the parties to try to agree on an appropriate remedy.
However, the parties could not agree on an appropriate remedy. Thus, the parties went back to the Tribunal, and on August 23, 2019, the Tribunal released its decision regarding the appropriate remedies. Imperial Oil was ordered to pay over $120,000 to the Applicant in total. The majority of this amount, $101,363.16, was “lost income” damages reflecting the wages the Applicant would have earned over a period of approximately four years. The four-year period was determined based on the evidence led at the hearing. The Tribunal concluded that it is likely that, had there been no discrimination, the Applicant would have been employed in the position for the full four-year period. The Tribunal also ordered $15,000 in “general damages” for injury to dignity, feelings and self-respect, plus pre-judgment interest.
So does this case mean that employers must stop asking applicants about their eligibility to work in Canada? No – this case suggests that employers may not discriminate against applicants on the basis of citizenship or residency because “citizenship” is a protected ground in the Code. Employers may screen applicants on the basis of eligibility to work in Canada. In fact, the sample job application posted on the Ontario Human Rights Commission’s website includes the following question:
Are you legally eligible to work in Canada? ◻ Yes ◻ No
While the difference between those questions may seem formal rather than substantive, it may be the difference between a compliant and an illegal job application form. As such, given the outcome of the Imperial Oil case, employers should carefully review their standard application form to make sure that they aren’t screening applicants in a manner that violates the Code.