Job Candidate Successfully Argues Discrimination On Basis Of Citizenship

Written on behalf of Arbesman Hamilton LLP

In a landmark decision from the Human Rights Tribunal of Ontario, a potential employee (the “candidate”) was successful in challenging an employer’s policy of requiring potential employees to be citizens or permeant residents of Canada.

A job offered and then rescinded

The candidate had been an international student at Montreal’s McGill University when he applied for an engineering job with the employer in the fall of 2014. The job was to commence following the candidate’s graduation. The candidate, who had a permit allowing him to work on a full-time basis for three years following graduation, was not a citizen or permeant resident of Canada. He lied about this when applying for the job, which he was eventually selected for. After being offered the position the candidate disclosed his true residency status, resulting in the job offer being revoked. The candidate filed an application under s.34 of the Human Rights Code, alleging discrimination of the basis of place of origin, citizenship and ethnic origin (later amending his allegation on the basis citizenship only).

The evidence at the hearing confirmed that the candidate was qualified for the entry-level position of project engineer and was ranked first amongst the applicants for the position. Had it not been for his lack of citizenship or permeant residency, he would have been able to work for the employer. Additionally, in its recession letter, the employer invited the candidate to re-apply for a position with the company should he become eligible to work in Canada, and that the recession was based on his misrepresentation of his status throughout the hiring process.

Positions of the candidate and the employer

The candidate testified that he was legally qualified to work in Canada, and that it was his intention to gain permeant residency prior to the expiration of his three-year post-graduation work permit. The employer’s argument was threefold. They stated that the candidate lied in his job application, which was why the offer was rescinded. They also argued that since permeant residency was an acceptable status for employment, they weren’t discriminating on the basis of citizenship. Finally, they argued that it was reasonable to require employees to be able to permanently work in Canada.

The Tribunal’s decision

The Tribunal found that the employer was in direct breach of the Code when it distinguished among job candidates who were eligible to work in Canada on the basis of citizenship, creating categories of “eligible” and “ineligible” in order for candidates to pass through the screening process. The Tribunal stated 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.” Additionally, the Tribunal did not buy the employer’s argument that the option for a candidate to be a permeant resident did not nullify its discrimination based in immigration status.

Ultimately, the candidate was able to demonstrate that a prima facie case of discrimination was met, establishing:

  1. He was qualified for the job
  2. He was not able to get the job because of a protected ground
  3. The person who got the job was no more qualified but lacked the attribute on which the (candidate) based his human rights complaint

The Tribunal addressed the candidates dishonesty during the application process, but was careful to do so in context of the situation, writing “the (candidate’s) fear was well-founded. It is clear that the applicant, a young graduate (age 24 at the time of the job search) did not appreciate that his ruse might be viewed unsympathetically as a measure of untrustworthiness, where trust is essential to his role as an engineer. In the Tribunal’s view, ‘but for’ (the employer’s) permanence requirement, the applicant would have no need for a ruse to circumvent the requirement. Thus, an issue regarding the (candidate’s) honesty would not have arisen and in all likelihood, the (candidate) would have been hired by (employer) as he was ranked first among the candidates.”

The Tribunal gave the candidate and the employer 45 days to mediate the matter. If they fail to do so, the Tribunal will schedule a hearing to award damages.

At Arbesman Hamilton LLP we represent both employees and employers in employment law matters and disputes related to the workplace, including those related to hiring and discrimination. We provide our clients with practical, honest, and customized legal advice specific to their needs. Please call us at 416-481-5604 or reach us online to talk today.