Citizenship status basis of complaint

Samuel was a foreign-exchange student who had just completed his engineering degree in Canada. He knew there was a government program that would allow him to work full-time in Canada for up to three years.

Through friends, he heard a large oil company was hiring new graduates and he found the advertisement. It stipulated that to be eligible for the position candidates must be able to work in Canada on a permanent basis. Samuel applied anyway.

As one of the top graduates of his class, Samuel did well in the interview process. He had heard that one of his classmates had been eliminated from the hiring process because he answered honestly that he could not work permanently in Canada.

Samuel, on hearing this, decided to tell the company repeatedly that he was eligible to work in Canada on a permanent basis. Eventually he was offered a job conditional upon him providing documented proof that he could work permanently in Canada by providing a Canadian birth certificate, a citizenship certificate or a certificate of permanent residence.

Of course, Samuel could not provide any of that documentation and eventually the offer was politely withdrawn.

The Ontario Human Rights Code prohibits discrimination on the basis of citizenship, among other things, and Samuel complained to the tribunal that he had been discriminated against contrary to the code. The tribunal adjudicator decided it was not open to the oil company to argue that being able to permanently work in Canada was a bona fide occupational requirement since the situation, on its face, was a clear discrimination on the basis of citizenship.

The adjudicator decided that even if that defence was available, a bona fide occupational requirement must be linked to the essential tasks relating to a particular job. More importantly, it must be necessary.

Through evidence given at the hearing, it became clear that the oil company would occasionally waive the requirement if the candidate had a set of skills that were hard to find and needed by the company.

Although Samuel was not one of those people, bona fide occupational requirements usually have no relationship with such changing business reasons. This was what was called an interim decision. There was no remedy ordered and it may be that the parties will come to a resolution themselves.

The tribunal has the authority to order somebody be reinstated, or instated, in Samuel’s case, to the job. Would they really force the company to employ somebody who had lied to their face repeatedly? It’s also important to remember that the tribunal is not the final word on these issues. Either party can appeal the decision all the way to the Supreme Court of Canada.

If you were interviewing candidates for an important position and one indicated they could only work for you for three years and another said they wanted to build a career with your company, which one would you choose?

If you chose the candidate interested in a career, you would not run afoul of any human rights legislation and would have every right to make that choice.

It now appears, however, that if the reason the candidate can only work for you for three years is related to citizenship, they must be treated equally. Sometimes courts care about the intention of the legislators who created statutes such as the Ontario Human Rights Code. Is this what the drafters of the legislation intended?

On the other hand, if the word “citizenship” in the code does not cover Samuel’s case, what situation could it apply to? The courts will not accept that meaningless words are put into statutes.

I do not think anyone would say the government does not have the right to say who can work in Canada and for how long. Once that right has been granted, even for a limited time, this case indicates that the candidate must be dealt with as if they could work here indefinitely.

Ed Canning practices labour and employment law with Ross & McBride LLP, in Hamilton, representing both employers and employees. Email him at ecanning@rossmcbride.com

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