Discrimination Based on Citizenship? A Discussion of the Law in Ontario and its Relevance to Alberta

In every province, there exists human rights legislation which protects individuals from discrimination. Each province’s legislation outlines specific “protected” grounds. If an employee suffers an adverse impact that has a connection to a protected ground, there may be discrimination at law.

What are these protected grounds?

In Alberta, the protected grounds are - race, religious beliefs, colour, gender, gender identity, gender expression, physical disability, mental disability, age, ancestry, place of origin, marital status, source of income, family status, and sexual orientation.

However, each province’s list of protected grounds does not completely match. For example, in Ontario, the protected grounds are slightly different - race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status, or disability.

In the recent decision of Imperial Oil Limited v Haseeb, 2023 ONCA 364 (“Haseeb”), the Ontario Court of Appeal discussed the protected ground of citizenship – a ground that, interestingly, is not a part of Alberta’s list of protected grounds.

Facts

Muhammad Haseeb (“Mr. Haseeb”) was an international engineering student who applied for an entry-level position at Imperial Oil Limited (“Imperial Oil”). Imperial Oil offered the job to Mr. Haseeb on the condition that he provide documentary proof of citizenship or permanent residency. At the time, Mr. Haseeb was not a permanent resident of Canada.

Upon informing Imperial Oil that he was not a permanent resident, but that he was going to be eligible to work full-time anywhere in Canada via a Post-Graduate Work Permit (a “PGWP”), Imperial Oil revoked Mr. Haseeb’s job offer.

Following the revocation, Mr. Haseeb filed a human rights complaint with the Ontario Human Rights Tribunal, alleging that the permanent residency requirement discriminated against him on the basis of citizenship.

The Ontario Human Rights Tribunal

The Tribunal found that it was discriminatory in Ontario for an employer to require an individual to prove their Canadian citizenship or permanent residency in order to be employed. Consequently, the Tribunal ordered Imperial Oil to pay over $100,000.00 in damages to Mr. Haseeb for the discrimination.

The Ontario Superior Court of Justice

Imperial Oil applied for judicial review of the Tribunal decision. The Court granted Imperial Oil’s application, finding that the Tribunal had assumed that the protected ground of “citizenship” included and protected against discrimination on the ground of “permanent residence”. The Court disagreed with this analysis and concluded that requiring an employee to be a permanent resident was not discriminatory.

 The Ontario Court of Appeal

Mr. Haseeb appealed the Court decision. The Ontario Court of Appeal held that Imperial Oil’s requirement for proof of Canadian citizenship or permanent residency was discrimination on the ground of citizenship. Fundamentally, the requirement excluded a group of non-Canadian citizens (PGWP-holders) who were legally entitled to work full-time for any employer anywhere in Canada.

The Court of Appeal stated the rationale for including “citizenship” as a protected ground is to ensure that people eligible to work in Canada were treated equally, pursuant to federal immigration law. The purpose of the PGWP program is to create a pathway to Canadian citizenship for international students who come to Canada to study and who intend to settle in Canada, in order to give Canada the benefit of these skilled workers. The program's design involves allowing individuals with a PGWP to work in Canada, obtain Canadian workplace experience, and “establish roots” in Canada. Workplace experience is a requirement to proceed through the PGWP program and individuals on a PGWP must have one year of full-time employment in Canada on the PGWP before they can apply for permanent residency. With this context, the Court of Appeal found that:

“…interpreting s. 5 of the Code as prohibiting discrimination in employment against PGWP-holders on the basis that they are not eligible to work in Canada permanently is not contrary to federal immigration law. Indeed, the opposite is true. The federal PGWP program is undermined when job postings are restricted to Canadian citizens and permanent residents, excluding PGWP-holders such as the appellant. Such restrictions bar PGWP-holders from consideration for entry-level jobs which are a necessary step to successful labour market integration, and a condition precedent to their applying for permanent resident status. The tribunal's interpretation is consistent with federal immigration law and policy.”

Considering these factors together, the Court of Appeal concluded that the Tribunal’s interpretation of the scope of discrimination on the basis of citizenship as it relates to PGWP-holders was reasonable. Consequently, the Court of Appeal set aside the Court’s decision, and restored the Tribunal’s decision.

Takeaways

Haseeb serves as an example of discrimination on the basis of citizenship contrary to the Ontario Code. However, it is important to remember that human rights are governed on a provincial level. Thus, a finding of discrimination will depend on the province in which the alleged discrimination occurred and its relevant legislation.

As noted above, the Alberta Human Rights Act does not list citizenship as a protected ground. Accordingly, had Haseeb proceeded before a tribunal and court in Alberta, it is unlikely that a finding of discrimination would have been found on the basis of statutory interpretation.

Ultimately, for any discrimination claim to succeed, it must be clearly tied to a protected ground under the relevant province’s legislation. Going forward, it will be interesting to see whether Haseeb and subsequent case law influences any future amendments to the Alberta Act.

McLennan Ross can provide legal advice to employers and employees with respect to human rights-related matters. Please reach out to our Labour and Employment Practice Group with any questions.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.