Citizenship (Discrimination)

ShortLink: https://caselaw.ninja/r/_N

Imperial Oil Limited v. Haseeb, 2021 ONSC 3868 (CanLII)

[1] This is a significant case. It asks for an understanding of the true boundaries of discrimination as defined by the Ontario Human Rights Code. The case concerns employment and the requirement of the employer that a prospective employee be eligible to work permanently in Canada. The employer says it wanted the assurance that, once trained, the employee would be able to stay with the company, hopefully for a long, successful and rewarding career. The employee could not give this assurance; he did not, at the time of his application, have the right to stay. He did not get the job. He argues, and the Human Rights Tribunal of Ontario (the HRTO) found, that this was discriminatory. It was discrimination based on the specified ground of “citizenship”. One can be permanently resident, and, hence, have an indefinite and unrestricted right to work, in Canada without being a citizen. Nonetheless, the HRTO found this to be “direct discrimination” that is to say “permanent residence” is intrinsically included within the ground of “citizenship”. This extends the ground in a way that is not justified and, as found by the HRTO, is not sustainable under the applicable standard of review.

...

[34] The HRTO understood that citizenship, as a ground for discrimination found in the Ontario Human Rights Code, is not defined.[20] This is not surprising. In the plain and ordinary meaning of the word, whether an individual is a citizen of Canada can be objectively determined. Either you are or you are not. “Permanent residence” is a right or privilege that comes with citizenship. It is not, in itself, immutable.[21] You can be a Canadian citizen and live here today and move tomorrow. Certainly, it is possible to imagine a circumstance where a requirement for permanent residence is so narrowly prescribed that it manifests as a requirement for citizenship but that would be indirect or constructive discrimination. As the subject of direct discrimination (the finding made by the HRTO), permanent residence (described as coming within citizenship) becomes a separate ground on which discrimination can be alleged by an individual. It expands the meaning of citizenship as a ground of discrimination. In this case, if it had been judged as indirect or constructive discrimination, there would have been a need to demonstrate that the discriminatory conduct (the permanent residence requirement) affected or had the potential to have a different (disparate) impact on a group of non-citizens (international students), at least in part, because they were non-citizens. A possible foundation for the presence or absence of this kind of impact would lie in statistics showing whether, if or how many non-citizens had been or were working for Imperial Oil in similar jobs and the impact on them. It is because it has found this situation to be demonstrative of direct discrimination (that permanent residence is either analogous to, subsumed by or the same as citizenship) that the HRTO determined that such statistics “were not required”.[22] As it is, in the absence of these statistics the supposed breach of the Code, directed at a class of people (international students), is being judged against the experience of a single person. Does it stand up?

...

[76] In the absence of a proper justification there is no basis for treating permanent residence as incorporated as a separate foundation for a finding of direct discrimination attached to the ground of “citizenship. This being so there can be no finding of direct discrimination based on a requirement that an employee be permanently resident. Permanent residence is not a ground identified in the Ontario Human Rights Code. On this basis there can be no prima facie case demonstrating direct discrimination founded on a requirement that an employee be permanently resident in Canada.

[77] The application for judicial review is granted and the decision of the HRTO quashed.

...

[81] The suggestion that discrimination on the basis of “non-citizenship” (in this case because a subset of non-citizens, namely permanent residents, were eligible for the jobs being offered by Imperial Oil, whereas other non-citizens were not), is coterminous with discrimination on the basis of citizenship, stretches the requirement to afford the Code a broad, liberal and purposive interpretation consistent with its remedial objectives, beyond its breaking point.

[82] The unforeseen consequences of the HRTO’s interpretation and application of section 5 can be seen in the example postulated by my colleague Lederer J. of an American citizen, living in Detroit, who is refused employment by Imperial Oil in Windsor because he or she is not a permanent resident of Canada. Why, he asks, would there not be substance to a complaint by that person of discrimination founded on “permanent residence” (or non-citizenship) in such circumstances (even though that person may have no entitlement to work in Canada)? Taken to its logical extreme, anyone denied employment because he or she is not eligible to work permanently in Canada could (in the absence of a bona fide occupational requirement (“BFOR”) defence) claim discrimination on the basis of citizenship.