Discrimination Based On Citizenship – ONCA Restores The Decision Of The HRTO

In Imperial Oil Limited v. Haseeb, 2023 ONCA 364, the Court of Appeal for Ontario (the "court") heard an appeal from the Divisional Court, which set aside the decision of the Human Rights Tribunal of Ontario (the "Tribunal"). The Tribunal had found that the respondent ("Imperial") had discriminated against the appellant in employment on the basis of citizenship.

In its decision, the Court of Appeal allowed the appeal, set aside the decision of the Divisional Court, and restored the order of the Tribunal. The court ruled that the Tribunal's decision that Imperial discriminated against the appellant on the basis of citizenship was reasonable.

FACTS

The appellant was an international student and was about to graduate with a mechanical engineering degree from McGill University. He was not a Canadian citizen or a permanent resident. Upon graduation, the appellant would be entitled to a Post-Graduate Work Permit ("PGWP"), which would allow him to work full-time, anywhere in Canada, for any employer, for a period of up to three years. The appellant's entitlement to a PGWP was conditional only on his providing a letter from the university attesting to the completion of his degree. This entitlement was part of a scheme of immigration legislation and regulation that was designed to attract skilled workers to settle in Canada and ultimately become Canadian citizens. Once an individual was working under the PGWP, they would be eligible to apply for permanent resident status from within Canada after having one year of full-time work experience in Canada.

During his final semester of university, the appellant applied for a full-time job as an entry-level engineer with Imperial. The job posting stated that applicants must be "permanently eligible to work in Canada" and that proof of permanent eligibility to work in Canada must be in the form of your Canadian birth certificate, Canadian citizenship certificate, or Canadian certificate of permanent residence. This requirement was repeated by Imperial throughout the job competition process. The appellant was fearful that he would be screened out of the competition and lied and answered "yes" on the application to a question asking whether he was "eligible to work in Canada on a permanent basis." The appellant was successful in his job application to Imperial and was the top-rated candidate in his group. Imperial wrote to the appellant, offering him the position; the letter stated that the offer of employment was conditional on the appellant providing proof that he was "eligible to work in Canada on a permanent basis." The appellant advised Imperial that because he was an international student, he would have to work on a PGWP, which could be issued upon his graduation before he would be permanently allowed to work in Canada. He advised the PGWP would be valid for three years and attached a link to an immigration website to support this information and his request for Imperial to make an exception regarding proof of eligibility to work in Canada on a permanent basis. Imperial withdrew its job offer because the appellant had not met the conditions to submit proof of permanent eligibility to work in Canada.

APPLICATION TO THE HUMAN RIGHTS TRIBUNAL OF ONTARIO

Appellant's Position

The appellant filed an application with the Tribunal alleging discrimination on the basis of citizenship. In particular, the appellant claimed that Imperial had discriminated against him on the basis of citizenship in requiring that he be a Canadian citizen or permanent resident, despite the fact that by the time the position was anticipated to commence, he would have his PGWP and an unrestricted right to work in Canada for up to three years. The appellant's position before the Tribunal was that Imperial's requirement of permanent eligibility to work in Canada disadvantaged only non-citizens; the fact that permanent residents, a sub-set of non-Canadian citizens, were not subject to the disadvantage did not cure the discriminatory impact of Imperial's policy.

Imperial's Position

Imperial's position was that its policy did not constitute discrimination based on citizenship because of the exception for permanent residents. Imperial took the position that the distinction its policy drew was based on "immigration status" and not citizenship because candidates did not need to be citizens to meet the requirement. Further, Imperial argued that it withdrew the job offer because of the appellant's dishonesty and not because he was unable to fulfill his permanent eligibility to work. Imperial also challenged the appellant's standing to bring the human rights claim.

Tribunal's Decision

The Tribunal found that Imperial Oil violated the appellant's rights under the Code. The Tribunal considered evidence from immigration experts who testified before it and found that a PGWP-holder would obtain permanent residency status within 6-18 months of applying for it. The Tribunal also found that there was no doubt that the appellant would obtain a PGWP shortly after his graduation and accepted that the appellant reasonably anticipated obtaining permanent resident status before his PGWP expired. The Tribunal found that there was no genuine issue regarding the appellant's eligibility to obtain a PGWP that would coincide with the job start date contemplated by Imperial, that obtaining the PGWP was conditional only on proof that the appellant had completed his degree, and that the appellant was at all times in status as an international student with no hindrance to obtaining a PGWP and SIN for commencement of work.

The Tribunal's analysis of whether Imperial discriminated against the appellant on the basis of citizenship proceeded from its factual finding that there was no doubt that the appellant would be granted a PGWP shortly after graduation.

The Tribunal's findings included:

• That the appellant had standing under s.34 of the Code to bring its application;
• that Imperial discriminated against the appellant on the basis of citizenship by imposing an employment condition of permanent eligibility to work in Canada, which must be proved by Canadian citizenship or permanent resident status;
• that the discrimination was direct discrimination;
• that Imperial had not established that the appellant's dishonesty was the sole reason for withdrawing its job offer – even if it was one factor, it was clear that the appellant's citizenship status was also a factor, and the decision was tainted by discrimination on the basis of citizenship; and
• in the alternative, if the discrimination was not direct discrimination, that Imperial had not established a bona fide occupational requirement ("BFOR") defence.

Imperial sought reconsideration of the Tribunal's decision, which was denied.

DIVISIONAL COURT

Imperial brought an application for judicial review to the Divisional Court. The majority of the Divisional Court (Sachs, J dissenting) found that the Tribunal's decision was unreasonable. The Divisional Court quashed the decision of the Human Rights Tribunal of Ontario that included "permanent residence" within the protected ground of "citizenship." The Divisional Court decided that there could be no direct discrimination based on the requirement that an employee be a permanent resident; in doing so, it confirmed that "permanent residence" is not a protected ground under the Ontario Human Rights Code (the "Code").

Sachs J., in dissent, considered that the Tribunal's decision was reasonable and would have dismissed the application for judicial review. She began by setting out several basic principles governing the interpretation of human rights legislation. In her view, the Tribunal's interpretation of the scope of discrimination on the basis of citizenship was reasonable. In particular, she found reasonable the Tribunal's interpretation of the defences to discrimination on the basis of citizenship in s. 16 of the Code as a tool to interpret the scope of citizenship discrimination. Sachs J. further found that the Tribunal's conclusion that Imperial discriminated against the appellant on the basis of citizenship was consistent with the burden in human rights litigation that a claimant need only establish that a decision not to hire is connected to their status as a non-citizen (i.e., the protected ground), and not that it was the only reason.

COURT OF APPEAL

The appellant appealed the Divisional Court decision to the Court of Appeal. The issues before the Court of Appeal were:

1. whether the tribunal's decision that the appellant had standing to file an application claiming discrimination in employment on the basis of citizenship reasonable?
2. whether the tribunal's finding of a prima facie claim of employment discrimination on the basis of citizenship reasonable?
3. whether tribunal's finding that Imperial Oil withdrew the job offer because the appellant was not a Canadian citizen or permanent resident, rather than solely because of his dishonesty in the job competition, reasonable? and
4. whether the tribunal's decision that the defence under s. 16(1) of the Code was not available to Imperial Oil reasonable?

Analysis

(1) whether the tribunal's decision that the appellant had standing to file an application claiming discrimination in employment on the basis of citizenship reasonable?

The Court of Appeal agreed with the Tribunal's conclusion that the appellant had standing to bring the claim and that Imperial discriminated against him on the basis of citizenship was reasonable. The appellant had standing to bring his claim under the Code because he had a "direct interest" in the pre-employment condition imposed by Imperial that he was unable to meet. The Tribunal assessed the appellant's standing with consideration of s. 34 of the Code, which defines the right to bring an application, and because of the wording in s. 5(1) "with respect to employment," which has been interpreted to include pre-employment scenarios.

Section 34(1) of the Code provides for a broad grant of standing, including any person who believes that any of his or her rights have been infringed has standing to apply to the tribunal for a remedy. The court found that the evidence supported the Tribunal's findings that the appellant was a genuine job seeker and that upon graduation, he would be entitled to a PGWP, which would permit him to work full-time, anywhere in Canada, for any employer, for up to three years. These findings supported the Tribunal's conclusion that the appellant had a direct interest in the hiring policy of Imperial limiting prospective employees to Canadian citizens and permanent residents. The court further found that the Tribunal's conclusion that the appellant had satisfied the requirements for standing under s. 34(1) of the Code to be reasonable.

(2) whether the tribunal's finding of a prima facie claim of employment discrimination on the basis of citizenship reasonable?

The court found that the Tribunal's analysis of the scope of discrimination on the basis of citizenship found within s. 5 was reasonable. The court recognised its role was to engage within the Tribunal's reasoning and determine if its interpretation was "defensible in light of the interpretive constraints imposed by law."

The court noted that in the administrative law context, a decision-maker must interpret legislative provisions consistent with the text, context, and purpose, applying its particular insight into the statutory scheme at issue. In addition, human rights legislation is to be given a broad, liberal, and purposive interpretation consistent with its remedial objectives.

The court also noted that both sections 5 and 16 of the Code are the starting points for the interpretation of the meaning of equal treatment and respect to employment without discrimination because of citizenship. The court held that given its plain reading, s. 5 prohibits discrimination based on whether someone is or is not a Canadian citizen or permanent resident.

The court found that the majority and dissenting decisions of the Divisional Court correctly identified the standard of review as reasonableness, however erred in its application of the reasonableness standard in three ways.

First, the majority failed to give "respectful attention" to the reasons of the Tribunal. The court noted that, although the majority said it was applying a reasonableness standard, the substance of the analysis by both judges in the majority approached the review by asking how they themselves would have decided the issues and restarted the analysis.

Second, the majority mischaracterized the Tribunal's reasoning, contrary to the direction in Vavilov to begin the reasonableness analysis by developing an understanding of the administrative decision-maker's reasoning that led to the decision. To start with a mischaracterization of an administrative decision-maker's reasoning undermines both defences and the possibility of reviewing the decision on a reasonableness standard.

Third, the majority ignored well-established law on the approach to be followed in analyzing a claim of discrimination under human rights legislation. As a result, the majority erred by failing to apply the reasonableness standard, contrary to the law that constrained both the Tribunal and the Divisional Court.

(3) whether tribunal's finding that Imperial Oil withdrew the job offer because the appellant was not a Canadian citizen or permanent resident, rather than solely because of his dishonesty in the job competition, reasonable?

The court agreed the Tribunal's finding that Imperial withdrew the job offer because the appellant was not a Canadian citizen or permanent resident was reasonable. The Tribunal acknowledged in its reasons that the appellant had conceded that he had misled Imperial on a number of occasions during the job competition process about his eligibility to work in Canada on a permanent basis. However, the Tribunal found that with the appellant having established a prima facie case of discrimination, there was insufficient evidence to demonstrate that the appellant's dishonestly was the sole reason for his non-hire. The Tribunal held that a discriminatory ground (citizenship) was a factor in the decision to withdraw the offer. The Tribunal further held that the fact that a non-discriminatory factor (the appellant's dishonestly) may have also played a role did not insulate Imperial's conduct from being discriminatory.

(4) whether the tribunal's decision that the defence under s. 16(1) of the Code was not available to Imperial Oil reasonable?

The court agreed that the Tribunal's decision that the defence under s.16(1) of the Code was not available to Imperial was reasonable. Imperial failed to raise the s. 16 defence before the Tribunal and attempted to raise the defence in its application for judicial review. It was reasonable for the Tribunal not to consider the s. 16(1) defence, since Imperial chose not to assert it. Where an issue is not raised before the Tribunal, there is no decision on the issue to review. Further, the premise of judicial review, starting with "respectful attention" to an administrative decision-maker's reasons, cannot be applied where the issue was not raised below, and the Tribunal was not given the opportunity to consider the issue and to provide reasons.