By Barry W Kwasniewski

The Divisional Court released its decision in the “significant case” of Imperial Oil Limited v Haseeb on June 1, 2021. The 2-1 majority of the court overturned the Human Rights Tribunal of Ontario Decision (“HRTO Decision”), discussed in Charity & NFP Law Bulletin No 456, which included “permanent residence” as a protected ground from discrimination under the basis that “permanent residence” was an aspect of “citizenship.”

The employer, Imperial Oil Limited (“Imperial Oil”), had a requirement that prospective employees be eligible to work permanently in Canada. The prospective employee, Muhammad Haseeb, was an international student. In his application forms, Haseeb represented that he was entitled to work in Canada on a permanent basis. Imperial Oil extended a job offer, subject to Haseeb providing proof of his eligibility to work in Canada on a permanent basis. When he was unable to do so, Imperial Oil rescinded its offer of employment. Haseeb claimed discrimination on the basis of citizenship under subsection 5(1) of the Ontario Human Rights Code. The Human Rights Tribunal of Ontario (“HRTO”) awarded considerable damages to Haseeb, holding that the requirement for entry-level job applicants to disclose proof of their eligibility to work in Canada on a permanent basis was discriminatory on the grounds of citizenship. After Imperial Oil unsuccessfully applied for a reconsideration of that decision, it applied to the Divisional Court for judicial review.

The finding of the HRTO had the effect of extending the ground of “citizenship.” However, the Divisional Court found that the HRTO Decision lacked the required coherent and rational chain of analysis to justify the extension of “citizenship.” Particularly, “the failure to examine the plain and ordinary meaning of ‘citizenship’ and ‘permanent residence’ is a gap in the analysis undertaken by the HRTO.” The court assessed the plain and ordinary meanings of both citizenship and permanent residence to conclude that citizenship is “nothing less or more than membership in the state” under the Citizenship Act. Permanent residence is not synonymous with citizenship and can stand on its own. The HRTO erred in law when it included permanent residence as a criterion of the citizenship ground of discrimination.

The Divisional Court was careful to clarify that the factual circumstances of this case deal with “direct” discrimination on the grounds of permanent residence. It is possible that a requirement for permanent residence could be so narrowly prescribed that it is effectively a requirement for citizenship – this would be indirect or constructive discrimination. Therefore, while the court in this case offers further clarity about when permanent residency requirements are not discriminatory, employers of charities and not-for-profits should still use caution when drafting employment letters so as to avoid indirect or other forms of discrimination where permanent residency is concerned.

Read the August 2021 Charity & NFP Law Update