• Insights

Requirement to show citizenship or permanent residency held to be discriminatory 

Written by
Mathews Dinsdale, Canada’s only national labour and employment law firm.
A Canadian appeals court has held that human rights law requires all those with legal permission to work to be treated equally at the point of hiring, and that imposing an additional requirement of citizenship or permanent residency will amount to unlawful discrimination.

In a recent decision, the Ontario Court of Appeal unanimously held that human rights law prevents employers from requiring employees to hold Canadian citizenship or permanent residence rather than another kind of work permission.  

Mr Haseeb was an international student who applied to Imperial Oil for an entry-level project engineer position. Imperial offered Mr Haseeb the position on condition that he provide proof of Canadian citizenship or permanent residency. Mr Haseeb was not a permanent resident, but was going to be eligible to work full-time anywhere in Canada for up to three years with a Post-Graduate Work Permit (PGWP). After Mr Haseeb revealed to Imperial that he was not a permanent resident, they revoked the job offer. Mr Haseeb then filed a human rights application alleging that the permanent residency requirement discriminated against him on grounds of citizenship, contrary to the Ontario Human Rights Code (the Code). 

In 2018, the Tribunal hearing Mr Haseeb’s initial claim decided that it was discriminatory for employers to require job applicants to prove their Canadian citizenship or permanent residency status to be eligible to work, and ordered Imperial Oil to pay more than CAD 100,000 in damages. In judicial review proceedings, the Divisional Court of Ontario reversed that decision, holding that permanent residency was not a protected ground encompassed within the term citizenship. Mr Haseeb appealed this ruling. 

The Court of Appeal held that Imperial Oil’s requirement for proof of Canadian citizenship or permanent residency was discrimination because it excluded a group of non-Canadian citizens who were legally entitled to work full-time anywhere in Canada. 

The Court of Appeal said that the purpose behind including citizenship as a protected ground under the Code was to ensure that individuals eligible to work in Canada under federal immigration law were treated equally. In doing so, the Court of Appeal noted that the Code has an exception that would allow an employer to impose a Canadian citizenship requirement where this is required or authorised by law. 

The Court of Appeal also considered the purposes of federal immigration law, holding that the purpose of the PGWP program is to allow individuals to obtain Canadian work experience so they might subsequently apply for permanent residency. The Court of Appeal ultimately held that interpreting the Code in a manner that would allow employers to discriminate against those not permitted, at a particular point in time, to work in Canada permanently would be contrary to the purposes of federal immigration law and programs like the PGWP. 

Employers may wish to review their hiring policies in light of this decision and should be cognizant of potential discrimination claims based on citizenship or immigration status. 

For more information about discrimination

Herbert Law
Herbert Law
Partner - Canada
Mathews Dinsdale