Divisional Court Overturns Decision by HRTO Allowing Discrimination Claim on the Basis of Permanent Residence

The recently released decision of Imperial Oil Ltd. v Haseeb, [2021] O.J. No. 2998 from the Divisional Court of Ontario, judicially reviewed the decision of the Human Rights Tribunal of Ontario (HRTO), which determined that an individual could claim direct discrimination based on permanent residency.

As part of its recruitment program, Imperial Oil decided only to make job offers for entry-level project engineer positions to candidates who were eligible to work in Canada on a permanent basis.

The employee was a student at McGill University and wished to work in the energy sector. He was not a permanent resident, or a Canadian Citizen. He held a visa as an international student which permitted him to work on a full-time basis in between semesters.

The employee was told in advance of the policy that Imperial only hired employees who were able to work in Canada on a permanent basis. On the recruitment forms, the employee answered yes to all questions related to whether he was able to work in Canada on a permanent basis.

It was later determined that he was not able to work in Canada on a permanent basis, as he was not a permanent resident or a citizen.

At the HRTO, the employee argued that section 5(1) of the Ontario Human Rights Code applied, and that the requirement that he be at least a permanent resident was discriminatory, as it fell under the enumerated ground of “citizenship” found in that section. The HRTO agreed, and found that Imperial Oil had discriminated against the employee on the basis of citizenship.

On judicial review, the Divisional Court disagreed. It indicated that there was no direct discrimination in respect of the enumerated ground of citizenship under section 5(1) as permanent residence is not the same as citizenship. It noted that that there is a difference between the meaning of “citizenship” and “permanent resident” under the Immigration and Refugee Protection Act that could not be ignored. The word “citizenship” means Canadian citizenship, and the word “permanent resident” means a person who has acquired permanent resident status and has not subsequently lost that status.

A key example used by the Divisional Court in section 43 highlights its reasoning:

To my mind the distinction between “permanent residence” as a separate ground for discrimination, incorporated into citizenship, as opposed to being a benefit that comes with citizenship, but is otherwise available, is demonstrated by the following hypothetical. If a Canadian citizen resident in Detroit (just over the Canadian border) was refused employment by Imperial Oil in Windsor, because he or she was not permanently resident in Canada would he or she be able to claim discrimination based on “citizenship”. Presumably not. This points out that “permanent residence” is not a ground for discrimination fully encompassed within “citizenship”. It has an independent and separate standing. Again, it could be circumscribed such that it is the source of “indirect” or “constructive discrimination” but cannot stand on its own as “direct discrimination”. In short, permanent residence is not a ground of discrimination and there is nothing in the plain and ordinary meaning of the applicable words that would make it so.

The Divisional Court has highlighted that direct discrimination based on the status of permanent residence is not protected by the Ontario Human Rights Code, and is not subsumed by the words “citizenship” found in section 5(1) of the Code.