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Canadian employer must pay for citizenship-based discrimination

Written by
Mathews Dinsdale, Canada’s only national labour and employment law firm.
The Ontario Human Rights Tribunal has held that an employer discriminated on the grounds of citizenship when asking questions relating to a job applicant’s right to work in Canada on a permanent basis that resulted in the applicant giving dishonest answers.

In Haseeb and Imperial Oil Limited, the Human Rights Tribunal of Ontario (the ‘Tribunal’) ordered the employer to pay CAD 101,363.16 for discrimination based on citizenship.

This decision follows up a 2018 decision where the Tribunal found that the employer had discriminated against the applicant on the ground of citizenship resulting from a requirement that candidates needed to be eligible to work in Canada on a permanent basis.

In coming to its decision, the Tribunal considered the applicant’s dishonesty during the hiring process.

During the hiring process, the applicant was dishonest. He had confirmed in person and by phone his eligibility to work in Canada on a permanent basis, including stating that he had a permanent resident card and a SIN (social insurance number), despite not having the right at the time to work on a permanent basis in Canada. The Tribunal found that

‘but for the discriminatory act of asking the questions about his eligibility to work in Canada on a permanent basis, there would have been no dishonesty by the applicant.’

The Tribunal then assessed the applicant’s claims for lost income and determined that the appropriate length of time to award compensation was from 30 March 2015, the date upon which the applicant began working at his other employment, to 3 May 2019, when the applicant left that job. The employer was ordered to pay the difference in earnings over that time period.

With respect to damages for injury to dignity, feelings and self-respect, the Tribunal emphasised that where discriminatory conduct results in the loss of a job or job opportunity, damages are usually at least CAD 15, 000 or higher. The Tribunal found that the employer’s denial of employment to the applicant in the early stages of his career was objectively serious conduct. The Tribunal noted that applicant had a ‘particular vulnerability as an immigrant to Canada with uncertainty as to his status at the relevant time.’

As can be seen in this case, employers need to be cognisant of potential risks under the Human Rights Code when hiring employees who are working in Canada pursuant to a work permit. Employers should review their hiring practices and interview questions to minimise risks of potentially violating the Human Rights Code.

The author gratefully acknowledges the assistance of Arielle Sie-Mah, a Student-at-Law in the firm’s Toronto office.