It can be easy for employers to forget that they have human rights obligations to job applicants from the moment that the job is posted. In other words, applicants do not have to become employees before they can claim discrimination. This is not a new concept. The first blog that I wrote this year is on the topic of employers not being able to discriminate in the recruitment stage.

However, since writing that blog, the Ontario Court of Appeal (ONCA) released its unanimous decision in Imperial Oil Limited v Haseeb (2023 ONCA 36). The ONCA's decision upholds the Ontario Human Rights Tribunal's decision that an employer cannot rescind a job based on citizenship. This decision is also an important reminder to employers that discrimination during the hiring process can be costly.

In Imperial Oil Limited v Haseeb, Muhammad Haseeb was in his final year of a mechanical engineering degree at McGill University. Haseeb is a citizen of Pakistan who, upon graduation, would get a Post-Graduate Work Permit (PGWP). The PGWP would allow Haseeb to work for three years for any employer in Canada. After one year of work, Haseeb could apply to be a permanent citizen. While still at McGill University, Haseeb applied for entry-level engineering positions that he could start after he graduated. Haseeb applied for an entry-level engineering position at Imperial Oil. Imperial Oil had a policy that they will only hire citizens and permanent residents. Haseeb lied in both his application and his interview that he was eligible to work in Canada permanently, as a permanent resident. Haseeb was offered the job. Haseeb then informed Imperial Oil that he would have to work through his PGWP and that he would attempt to get his permanent residence before it expired. Imperial withdrew its job offer with a letter which stated that the job was rescinded because Haseeb had failed to prove permanent residency and it encourage him to reapply if he becomes a permanent resident in the future. Haseeb filed a complaint with the Ontario Human Rights Tribunal, arguing that Imperial Oil discriminated against him based on citizenship. The tribunal agreed with Haseeb. However, that decision was overturned by the Ontario Divisional Court. The Divisional Court decision was then appealed to the ONCA.

The Ontario Court of Appeal (ONCA) found that the Tribunal's decision that Haseeb was discriminated against based on citizenship was reasonable and overturned the Divisional Court's decision. The ONCA found that non-citizens were protected under Ontario's Human Rights Code (Code), based on its statutory interpretation of the Code. The policy was not saved because it carved out an exemption for permanent residents, who are not also citizens. The policy did not have to discriminate against all non-citizens to be discriminatory. The policy was also not saved because Haseeb's lies were part of the reason Imperial Oil rescinded the job offer. As Haseeb was able to prove, through the job rescinding letter, that citizenship was at least part of the reason why he was denied the job opportunity. Finally, the Court of Appeal denied Imperial Oil from raising a new defence that it did not argue in front of the tribunal. As the ONCA reinstated the tribunal's decision, Imperial Oil will have to pay Haseeb $101,363.16 as monetary compensation for lost income, $15,000.00 as monetary compensation for injury to dignity, feelings and self-respect, court costs, and interest on the damages. In other words, Imperial Oil will have to pay Haseeb over $130,000 in compensation for discriminating him at the hiring stage and its failed appeals.

Takeaways from this decision

There is speculation in the legal community that this decision may be headed to the Supreme Court of Canada. However, employers should not rely on that speculation and take this decision seriously. Employers must not discriminate in the hiring process.

In light of this decision, employers should review their hiring process to ensure that they do not rely on any discriminatory practices when hiring employees. If an employer finds themselves in a position where they want to rescind a job offer, they should consult with an employment lawyer immediately to minimize legal liabilities. Finally, this case reminds employers that they must present their full case when in front of the initial decision maker, as they cannot bring up new arguments upon appeal.

How Suzanne Desrosiers Professional Corporation can help

At Suzanne Desrosiers Professional Corporation, we have a team of employment lawyers that can help employers. We can review your hiring policies and process to reduce the risk that you discriminate during the hiring process. Our employment lawyers can also give legal advice on what to do when rescinding a job offer in a way that reduces your legal liability. To speak to one of our employment lawyers please call us at 705-268-6492 or email us at info@sdlawtimmins.com.