As many employers know, in order to comply with human rights and employment standards legislation, there are certain questions that cannot be asked in employment applications or during interviews. With reference to a recent case ruled on by the Human Rights Tribunal of Ontario, learn why questions pertaining to a candidate’s citizenship can be problematic and what should be avoided to comply with human rights.
REFERENCE CASE: HASEEB V IMPERIAL OIL LIMITED
While a candidate’s current eligibility to work in Canada may not have traditionally been a problematic question in employment applications or during interviews, the Human Rights Tribunal of Ontario recently ruled that it is discriminatory to ask whether a candidate is eligible to work in Canada on a permanent basis (Haseeb v Imperial Oil Limited, 2019 HRTO 1174). The Tribunal awarded the applicant in this case damages that totalled approximately $120,000 to compensate for the breach of his human rights.
THE BACKGROUND
Muhammed Haseeb applied for a job as an engineer at Imperial Oil Limited. At the time, he was an international student at McGill University with a student visa. He was eligible for post graduate work permit for a fixed term of three years, which would allow him to work full time anywhere with any employer in Canada. The application for Imperial Oil asked whether candidates were eligible to work in Canada permanently. Haseeb planned on settling and working in Canada indefinitely upon his graduation, and genuinely believed that he would be able to obtain permanent residence before his work permit expired, so he lied on his application and stated that he was a permanent citizen.
Haseeb was the top ranked candidate and was offered the job at Imperial Oil. In order to accept the position, Haseeb was required to provide proof of his eligibility to work in Canada permanently. As he was unable to do so, Imperial Oil rescinded the job offer. Haseeb ended up accepting a non-engineering job with a significantly lower salary. He later brought an application to the Ontario Human Rights Tribunal claiming that Imperial Oil discriminated on the basis of citizenship in breach of section 5(1) of the Ontario Human Rights Code. The Tribunal held that Imperial Oil’s permanence requirement amounted to discrimination that was in violation of the Code. Imperial Oil argued that Haseeb had lied on his application and during his interviews, as he falsely confirmed his eligibility to work in Canada on a permanent basis multiple times. But the Tribunal pointed out that Haseeb’s dishonesty was only for the purpose of avoiding discriminatory treatment. If the discriminatory questions had never been asked, then there would have been no dishonesty. Moreover, the Tribunal stated that Haseeb’s dishonestly was not relevant in finding that Imperial Oil had in fact breached the Code.
THE DAMAGES AWARDED
The Tribunal did not order a remedy at the first hearing, giving the parties an opportunity to negotiate and decide what remedy was appropriate. The parties were ultimately unable to reach an agreement, so the Tribunal held a second hearing to determine how much Haseeb should be compensated. Two types of damages were awarded. First, damages for loss of income amounted to $101,363.16. The purpose of these damages is to put applicants in the position they would have been but for the discriminatory action, so the Tribunal had to consider what would likely have happened if the job offer was not rescinded. Haseeb was awarded lost income for a period of over four years, as the Tribunal found that it was more than likely that his employment would have been long term. Damages amounting to $15,000 were also awarded to compensate for injury to dignity, feelings, and self-respect. Two criteria were considered when assessing these damages: 1) the objective seriousness of the conduct and 2) the effect on the applicant who experienced discrimination. The Tribunal found that denying Haseeb employment at the very beginning of his career was objectively serious and had the effect of taking his dreams away from him. The Tribunal also noted Haseeb’s “particular vulnerability as an immigrant to Canada with uncertainty as to his status at the relevant time.” The Tribunal also ordered $3,997.54 as pre-judgment interest on the foregoing amounts.
THE TAKEAWAY
This decision is a positive one for many job applicants, particularly international students who are looking to settle in Canada. It provides international students with the opportunity to find meaningful work in Canada before they obtain permanent residency. However, from an employer’s perspective this decision is problematic, especially for employers who invest a substantial amount of time and money into employees at an early stage to properly train them. For the purposes of business succession planning, it makes sense that employees who will remain in the company long-term are desirable candidates for employers.
This decision can serve as a reminder to employers to review their applications for employment and hiring policies to ensure that they comply with applicable human rights and employment standards laws. Employers should note that they are still able to require candidates to be legally authorized to work in Canada during the time of employment. It is discrimination on the basis of citizenship that is problematic, and it was the permanence requirement that was discriminatory in this case. Discrimination of this nature could end up being very costly for employers, given the significant damages awarded in this particular case.
Contact Us
If you have questions regarding complying with human rights and employment standards legislation as an employer, or if you believe you were subjected to discrimination on the basis of citizenship, as an employee or otherwise, please contact us, as our team of lawyers would be happy to help you navigate your matter.
Call us at (604) 736 9791, or email ar@dwslaw.ca and we would be happy to assist.
Disclaimer: This article is not intended to serve as, or should be construed as legal advice, and is only to provide general information. No portion or use of this article will establish a lawyer-client relationship with the author or any related party. Should you require legal advice for your particular situation, please get in touch with us.