Ontario Court of Appeal finds Employer’s Requirement for Proof of Canadian Citizenship or Permanent Residency Discriminatory

In Imperial Oil Limited v. Haseeb 2023 ONCA 364, the Ontario Court of Appeal found that an employer’s condition for job applicants to provide proof of citizenship or permanent residency status during the job application process is discriminatory. 

This decision restores the Ontario Human Rights Tribunal’s decision that an employer is prohibited from discriminating against individuals in respect of employment, including during the recruitment phase, due to grounds protected under the Ontario Human Rights Code (the “Code”).

The appellant in this matter, Muhammad Haseeb (“Haseeb”) was an international student, in the Post-Graduation Work Permit program (PGWP) that provided students a work permit with a fixed term of three years.

Post graduation, Haseeb applied for an entry-level engineering position with the Respondent Employer, Imperial Oil Ltd. (“Imperial”). Haseeb was the top candidate for the position, and as such, Imperial offered him the position. The offer, however, was conditional on permanent eligibility to work in Canada, as established by proof of either Canadian citizenship or permanent resident status. When Haseeb disclosed that he was neither a Canadian citizen nor a permanent resident, and would have to initially work on the three-year PGWP, Imperial withdrew its job offer.

The Court of Appeal concluded that federal immigration law treats individuals eligible to work in Canada equal to citizens and permanent residents. Imperial’s requirement for proof of citizenship or permanent status, excluded the groups of individuals who are legally entitled to work full-time in Canada, like Haseeb was in this case. The Court of Appeal explained that under federal immigration law the PGWP made Haseeb eligible to work in Canada. The Court concluded that the requirement for the proof of either Canadian citizenship or permanent resident status would contradict the PGWP program and the initiatives of Canadian federal immigration law.

The Court of Appeal restored the Ontario Human Rights Tribunal’s award of approximately $120,000, plus an extra $15,000 for costs of the appeal.

Prior to setting conditions on any job applications, employers are encouraged to review their policies and consult with one of our employment lawyers to ensure that any policies do not attract any claims for discrimination.