Divisional Court Quashes Landmark Decision on Discrimination in Employment on the Basis of Citizenship

Our Focus Alert readers will recall that back in 2018, the Human Rights Tribunal of Ontario (the “Tribunal”) was tasked with considering a claim of discrimination in employment on the basis of citizenship. In Haseeb v. Imperial Oil Ltd. (“Haseeb”), the Tribunal determined that the employer’s requirement that applicants be permitted to work in Canada on a permanent basis in order to be eligible for a position as a project engineer constituted direct discrimination on the basis of citizenship. However, in what will be welcome news for employers with similar employment pre-conditions, the Ontario Divisional Court recently quashed this landmark decision.

Background

As detailed in our earlier Focus Alert, the employer in this case – being Imperial Oil Ltd. – had a program through which it recruited engineering graduates as “project engineers”. However, in order to be eligible for such a position, applicants had to be able to work in Canada on a permanent basis (the “Permanency Requirement”). In other words, they were required to have either Canadian citizenship or permanent residency in Canada.

At the relevant time, the applicant, Mr. Haseeb, was an international student who had neither Canadian citizenship, nor permanent residency in Canada. He was, however, part of a special immigration program that ultimately resulted in his obtaining a postgraduate work permit for a fixed term of 3 years upon his graduation. Mr. Haseeb applied for a position as a project engineer with Imperial Oil Ltd. and, throughout the recruitment process, mislead the company about his ability to work in Canada on a permanent basis. Eventually, Mr. Haseeb was offered a position as a project engineer. However, when he could not prove his ability to meet the Permanency Requirement, the offer was ultimately rescinded, notwithstanding the fact of his postgraduate work permit. Mr. Haseeb subsequently brought a human rights application against Imperial Oil Ltd. alleging discrimination on the basis of citizenship.

In its decision, the Tribunal concluded that the Permanency Requirement did discriminate on the basis of citizenship because it was a requirement or consideration that made distinctions based on Canadian citizenship, permanent residence status or “domicile in Canada with the intention to obtain citizenship” that was neither authorized or required by law, nor fell within other Ontario Human Rights Code (the “Code”) defences. In fact, the Tribunal found that the Permanency Requirement constituted a direct breach of the Code, meaning that the BFOR defence was not available to the respondent. In any event, the Tribunal found that even if the BFOR defence could have been advanced, the employer had waived the Permanency Requirement in the past, evidencing the fact that it was not a necessary requirement and was not linked to the performance or essential tasks relating to the job. Ultimately, the Tribunal declared the Permanency Requirement to be prohibited discriminatory conduct under the Code.

Decision

Earlier this year, the Ontario Divisional Court (the “Court”) heard an application for judicial review of the Tribunal’s decision in respect of Mr. Haseeb. In its decision released earlier this summer, the Court began by commenting on the unique nature of the Tribunal as an administrative tribunal:

Like […] other tribunals, the HRTO resolves issues that can affect individual relationships but also broader concerns for the treatment, by government and others, of groups (some small, some large) of those who make up our society. The impact goes even further. In a time of quickly evolving social mores, the decisions of the HRTO determine the implementation of values that are basic to our society. They are not just legal decisions; they are decisions that speak to who we are as Canadians. They articulate what we, as Canadians, see as right and proper behaviour.

Before turning to the substantive issue of discrimination, the Court determined that the applicable standard of review required deference in respect of the Tribunal’s decision. The Court then went on to review the Tribunal’s findings. It noted that, in this case, the Tribunal’s finding of discrimination was based on the protected ground of “citizenship”, and that the asserted attribute of citizenship it had relied on in so finding was the failure of Mr. Haseeb to be authorized to be a permanent resident in Canada. Additionally, it noted that the Tribunal had found that the Permanency Requirement constituted direct discrimination. In other words, the Tribunal had assumed that, under the Code, the protected ground of “citizenship” directly protected against discrimination founded on permanent residence.

For its part, the Court noted that one can be a citizen and nonetheless move one’s residence out of Canada. Conversely, one can be a permanent resident in Canada without having Canadian citizenship. It therefore concluded that the notions of “citizenship” and “permanent residence” were in fact separate and independent from one another. In the result, the Court held that the Tribunal’s understanding of the protected ground of “citizenship” as including “permanent residence” was not part of a coherent and rational chain of analysis leading to such a finding. Further, the Tribunal’s failure to examine the plain and ordinary meaning of “citizenship” and “permanent residence” constituted a gap in its analysis. For these reasons, the Court concluded that the Tribunal had expanded the meaning of “citizenship” in a way that could not stand on its own, at least not in respect of direct discrimination:

The issue raised in this case has not been canvassed before and was not fully or appropriately canvassed in this case. The absence of any consideration of the plain and ordinary meaning of the words, the reliance on particular and limited defences and the reference to and, with respect to Washington, the reliance on cases which do not provide any analysis that justifies the novel proposition being made is not enough to meet the standard of review set by Vavilov. There is not enough on which to base a finding that “citizenship” as a ground of discrimination includes as a second and separate criterion, “permanent residence”, the breach of which can sustain a claim of direct discrimination. The analysis undertaken does not represent an internally coherent and rational chain of analysis that can be followed and understood as justifying this finding. The foundation for the finding is not transparent or intelligible.

There is little, if any, substantive explanation or justification for the acceptance of what becomes, in essence, a further ground for discrimination. There could be policy implications that are not accounted for and require consideration of the legislature. I say this in furtherance of indicating that, as I see it, this would offend the standard of review of “patent unreasonableness” should it apply.

In conclusion, the Court found that the Tribunal’s decision extended the protected ground of “citizenship” in a manner that was neither justified, nor sustainable under the applicable standard of review. It accordingly granted the application for judicial review and quashed the Tribunal’s decision. The Court chose not to remit the matter to the Tribunal for reconsideration based on its view that there could be no finding of direct discrimination based on “permanent residence” and the fact that there was no suggestion that there could even be a finding of indirect or constructive discrimination based on the evidence.

In Our View

Employers with current or potential employment pre-conditions similar to those at issue in the Haseeb matter will certainly be reassured by this decision from the Ontario Divisional Court. That said, as explicitly mentioned in the Court’s decision, it’s certainly possible for there to be a circumstance where a requirement for permanent residence is so narrowly prescribed that it essentially manifests as a requirement for citizenship constituting indirect or constructive discrimination. Employers should therefore always proceed cautiously when considering implementing any such requirements.

For more information, please contact Kecia Podetz at 613-940-2752 or Sébastien Huard at 613-940-2744.