HRTO to Employers: It is illegal to exclude candidates for not being eligible to work in Canada on a permanent basis

Some employers ask candidates during the recruitment process whether they are allowed to work in Canada on a permanent basis, to help them identify if a work permit is required, either now or in the future. But is this legal?

Recently, the Human Rights Tribunal of Ontario (HRTO) pronounced itself on this issue in Haseeb v. Imperial Oil Limited, 2018 HRTO 957. Imperial Oil required applicants to confirm at various stages of the application process, both verbally and in writing, whether they were eligible to work in Canada on a permanent basis.

Haseeb applied for an entry level Project Engineer position at Imperial Oil while still a student at McGill University. He knew he would be eligible for an open Post-Graduation Work Permit valid for up to three years upon graduation. Believing that his candidacy would not considered if he was truthful, he advised Imperial Oil throughout the recruitment process that he met their permanence requirement. Imperial Oil was impressed by Haseeb and made him an offer containing a request to provide proof of citizenship or permanent resident status. When he was unable to do so, Imperial Oil withdrew the offer.

Imperial Oil maintained that it withdrew Haseeb’s offer not because he was unable to meet the permanence requirement, but because he misrepresented himself throughout the application process. Imperial Oil also defended its permanence requirement, explaining that while it waived the requirement in certain circumstances, there was no reason to do so for new graduates because (i) they do not have unique skills, (ii) there were plenty of candidates who met the permanence requirement to choose from, and (iii) it invested heavily in new employees and did not want to risk losing their investment in the event the new employee could no longer legally work in Canada.

The HRTO ruled in Haseeb’s favour. It found that Imperial Oil’s permanence requirement is discrimination based on citizenship, since it marked candidates as eligible or ineligible to progress further in the selection process based on their answer. As a result of the ruling, it is confirmed that it is illegal for an Ontario employer to exclude a candidate on the basis that he/she is not eligible to work in Canada on a permanent basis.

Ontario employers should review their hiring practices to ensure that there is no discrimination based on citizenship. Ontario employers should also contact both an immigration lawyer and an employment law lawyer to determine how to best mitigate risks associated with hiring a candidate that does not have the right to stay permanently in Canada at the time of their hiring.
CILF is experienced in advising employers on foreign national applicants and devising both a short term and long term immigration strategy to facilitate the foreign national being able to remain in Canada. CILF was recently named one of Canada’s top 10 boutique immigration firms by Canadian Lawyer Magazine. Contact one of our immigration lawyers today for assistance.