With the growing number of foreign nationals working in Canada, there are some associated challenges that may arise. Our clients are reporting that they are finding out after an offer of employment has gone out, that the candidate is on a fixed term work permit, sometimes with only a couple months remaining. This can cause frustration given the time and money spent on recruitment and onboarding of a new hire. This often leads our clients to ask us what they can do to prevent this from happening.
In these situations, it is important to keep in mind that employment human rights protections start the moment contact is made with a potential employee through to the cessation of employment. Simply put, the moment that a candidate applies for a job they have an inherent right not to be discriminated against based on the applicable prohibited grounds. Questions during the interview process and/or post offer that revolve around a protected ground could expose the company to a human rights complaint.
In Ontario, and in other jurisdictions, there is not much that you can do to prevent hiring an employee on a fixed term work permit. The candidate has the right not to be discriminated against based on citizenship and work permit status. An employer’s failure to hire or removal of an offer of employment based on these reasons may amount to direct discrimination.
Case Law - Imperial Oil Limited v. Haseeb (2023 ONCA 364)
In this case, Mr. Haseeb held a Post-Graduate Work permit for 3 years and applied for a position at Imperial Oil Limited (the “Company”). During the interview process Mr. Haseeb was asked about his eligibility to “work in Canada on a permanent basis” and he answered “yes” despite only holding a 3-year work permit. Mr. Haseeb was provided with a job offer, with the condition of providing proof of his eligibility to work in Canada on a permanent basis. When he was unable to provide this the Company rescinded the offer. Mr. Haseeb brought a human rights application claiming that he was discriminated against on the basis of citizenship.
The Company argued that its policy did not discriminate on the basis of citizenship given permanent residents can meet the requirements. The Company argued in the alternative that the policy was a bona fide occupational requirement because of the investment made by the Company in training new recruits and the Company’s expectation that the recruits spent their entire careers with the Company in positions of progressive responsibility. Furthermore, the Company argued that their loss of investment in Mr. Haseeb in the event he did not obtain permanent residence status would amount to undue hardship. Finally, the Company argued that it rescinded the offer not because of Mr. Haseeb’s residency status but in light of his dishonesty in the application process
The Ontario Court of Appeal restored the decision of the Human Rights Tribunal of Ontario and found that employers cannot discriminate against job candidates who do not have Canadian permanent residence status or citizenship but are legally able to work in Canada.
Employers across the country should take this decision to heart and review their hiring practices to ensure candidates are not being screened out based on their ability to permanently work in Canada. If you have any questions regarding your hiring practices or policies, please don’t hesitate to reach out to speak to an e2r® Advisor.