Monday, 28 October 2019

Requirement that Applicants be Legally Permitted to Work in Canada on “Permanent” Basis a Discriminatory Act

Is it a discriminatory act to ask someone applying for employment whether he or she is legally eligible to work in Canada on a permanent basis?

If the answer to that question is “yes”, then what is the effect of an applicant repeatedly lying about the answer.

In a series of decisions spanning a number of years from the Human Rights Tribunal of Ontario, the answers to those questions were “yes” and “not much.”

Facts

This was an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of a pre-employment requirement that a prospective job applicant must be able to work in Canada on a “permanent basis”. In his Application, the self-represented applicant alleged that the respondent Imperial Oil Limited (“Imperial Oil” or “IO”) breached s. 5(1) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on the basis of place of origin, citizenship and ethnic origin.

At the hearing, the applicant who was then represented by counsel amended the grounds of discrimination to allege a breach on the ground of citizenship only. In opening statement, the applicant’s counsel articulated that the Application disclosed breaches of sections 13(1), 23(1) and 23(2) of the Code in connection with Imperial Oil’s job posting / advertising, its written on-line application form and verbal requests at various job interviews for the applicant to disclose whether he was able to work in Canada on a “permanent basis”.

Throughout IO’s selection process, the applicant was a student at McGill University in Quebec completing his engineering degree (mechanical) with an interest in the energy sector. He was an international student and his visa permitted him to obtain a work permit for on-campus part-time work and for full time work during regular breaks between academic terms. Aside from internships, for which he obtained temporary social insurance numbers (SIN), the applicant did not work (on or off campus) while he was a student.

On graduation, with a letter from his University attesting to completion of his credits for his degree, the applicant became eligible for a “postgraduate work permit” (PGWP) for a fixed term (3 years). The PGWP would permit him to work full time, anywhere and with any employer in Canada. The applicant anticipated that he would attain permanent residency status within three years and thus be able to settle and work in Canada indefinitely. The applicant was among graduates from participating Canadian universities who, under a special immigration program involving the federal and Ontario government, were permitted to obtain work in Canada and be processed in-land for permanent resident status.

The applicant learnt from more senior students that Imperial Oil recruiters required graduate engineers to have permanent residency or citizenship to be eligible to apply for a permanent full-time job as Project Engineers. The applicant testified that he believed that one of his friends did not proceed past the first round of interviews because he answered truthfully that he did not have the required permanent status. On the contrary, the applicant gave a positive response repeatedly to Imperial Oil’s representatives’ questioning regarding his eligibility to work in Canada on a permanent basis and progressed through every step of Imperial Oil’s selection process for an entry level position as Project Engineer, starting with Imperial Oil’s on-campus recruitment, online application form and through to interviews during a site visit at the prospective refinery work location. His “positive” responses were in fact false.

As the applicant was ranked first among the candidates, he was offered a job with certain conditions that he had to fulfill to accept the job offer by a stipulated deadline. As part of accepting the job offer, the applicant was asked to provide proof of his eligibility “to work in Canada on a permanent basis” by way of (1) Canadian birth certificate (2) Canadian citizenship certificate or (3) Canadian certificate of permanent residence (permanent resident card). This eligibility to “work in Canada on a permanent basis” is sometimes referred to as the “permanence requirement” or Imperial Oil policy in the Tribunal’s decision.

After graduation in early 2015, the applicant expected to obtain a work permit for 3 years under the PGWP with no difficulty so he could work anywhere and with any employer on a full-time basis. He was unable to provide the required proof to accompany his acceptance of the job offer by December 11, 2014.

Imperial Oil later rescinded the job offer, about a month after the deadline for its acceptance. The rescission letter, on its face, invited the applicant to re-apply if he became eligible to work in Canada on a permanent basis in the future. In response to the instant Application, the respondent stated that the job offer was rescinded because of the applicant’s misrepresentation of his status throughout the hiring process.

Decision of the HRTO

In providing a summary of the decision on the merits, Haseeb v. Imperial Oil Limited, 2018 HRTO 957 (CanLII), HRTO Associate Chair Yola Grant wrote the following:

[9] The applicant has standing to bring this Application as an individual who has a direct interest in the dispute concerning a pre-employment condition that he was unable to meet, thus losing a career employment opportunity with a large and eminent corporation. On all the evidence before the Tribunal, the applicant was engaged in a genuine search for employment with IO in fall 2014 and was excited by the prospect of working with IO after his graduation. This was not a sham job search by the applicant. His firm belief and reasonable expectation was that he would complete his degree and obtain a PGWP to work off campus on a full time basis in early 2015. There was no genuine issue regarding his eligibility to obtain a post-graduate work permit that would coincide with the job start date in 2015 contemplated by both IO and the applicant.

[10] The evidence was undisputed that IO requested that the applicant answer questions at various stages of the selection process about his eligibility to “work in Canada on a permanent basis”. The applicant applied for and was judged by IO representatives to be qualified for the entry level Project Engineer position. He was ranked first among the job candidates as long as he maintained the ruse that he was eligible to work in Canada on a permanent basis. But for the “permanence requirement”, the applicant met all other conditions of the offer of employment and would have been able to accept the offer by the stipulated deadline.

[11] The Tribunal’s finds that the “permanence requirement” is discrimination based on the ground of “citizenship”. While a definition of “citizenship” is not contained in the Code, a reading of the three defences available under section 16 of the Code indicates that the legislature contemplated that any requirement, consideration etc. that distinguished among individuals on the basis of either “Canadian citizenship”, “permanent residence” status or “domicile in Canada with intention to obtain citizenship” is discrimination unless the requirement is imposed or authorized by law, or the other criteria are met for each of three defences. More specifically, in the Tribunal’s view, IO’s requirement amounted to a direct breach of the Code when it distinguished among job candidates who were eligible to work in Canada on the basis of citizenship and created categories of “eligible” and “ineligible” for progressing through IO’s screening process. IO’s requirement was not excused by s.16(1) of the Code as IO was not adhering to a requirement that was authorized or imposed by law. The further defence available for corporations under s.16(3) of the Code is also inapplicable in the circumstances of an entry level position (“as opposed to chief or senior executive position”).

[12] The Tribunal ruled further that the fact that IO’s requirement distinguished on the basis of “Canadian citizenship” and “permanent residence” does not change the analysis to being a distinction based on “immigration status”. It is sufficient that IO’s requirement cited “Canadian citizenship” as a criterion to engage the prohibited ground of “citizenship” the Code.

[13] During the hearing, IO characterized its requirement/policy as an “occupational requirement” or an “employment strategy” that supported succession planning. IO’s evidence was that the permanence requirement was sometimes waived for candidates whose skills were in high demand but no waiver had ever been provided for a candidate for the entry level position of Project Engineer. The rationale for the non-waiver for entry level positions was that (a) new graduates did not have any highly sought after skills (b) there was a large pool of new engineering graduates from which to choose those who met the permanence requirement and (c) IO would risk losing its investment of time and money in training a new graduate whom it may not be able to retain and meet the company’s succession planning goals if her/his application for permanent resident status failed.

[14] The evidence of the respondent supported a finding that job candidates were deemed “eligible” and “ineligible” based on their response to the question about their eligibility to work on a permanent basis. No statistical analysis or examination of disparate impact, for example, was required to determine the effect of IO’s requirement in imposing a disadvantage on the applicant and other international students (all of whom are non-citizens). The Tribunal thus found that direct discrimination resulted from IO’s “permanence” requirement.

[15] In Ontario, a BFOR defence to “indirect” or “constructive” discrimination is addressed separately under s.11 of the Code for instances where a prohibited ground is not directly engaged but where the requirement “results in exclusion, restriction or preference of a group of persons identified by a prohibited ground….” In the Tribunal’s view, the BFOR defence is not available to IO for a direct breach of the Code, notwithstanding the unified approach to BFOR defence articulated by the Supreme Court of Canada in Meiorin.

[16] If the Tribunal is wrong in the above ruling on direct discrimination and the non-availability of the BFOR defence, the Tribunal further rules that IO’s policy is not an “occupational requirement” as IO was clear in its evidence that the purported “requirement” could be waived at its discretion and no evidence was led to link the requirement to any job tasks being performed at IO. The Tribunal finds that it is untenable to treat this requirement as a BFOR for the purposes of the Code for the following reasons:

  1. An “occupational requirement” must per se be linked to the performance of essential tasks relating to a job; and,
  2. A bona fide occupational requirement is a necessary requirement and cannot be subject to waiver for varying business reasons, unrelated to accommodating and individual to successfully perform the essential tasks of the job.

[17] In the further alternative, if one were to assume that IO’s policy is an “occupational requirement”, the Tribunal finds that IO has not discharged its onus to demonstrate (a) that this requirement was bona fide and “necessary” and (b) that accommodating the applicant, a PGWP holder, with a waiver of the requirement, would have caused the corporation “undue” hardship (as opposed to some hardship or uncertainty).

[18] Given that the facts regarding the job posting, the job application form and repeatedly questioning the applicant about whether he met the requirement to work permanently in Canada is not disputed, the Tribunal finds that sections 13(1), 23(1) and 23(2) of the Code were breached in connection with IO’s job posting / advertising, its written on-line application and verbal requests at various job interviews of the applicant and that these acts contravened s. 5(1) of the Code. No defence was available to IO under s.16 of the Code that addresses citizenship and permanent residency as a condition for employment in very limited circumstances.

[19] Finally, the Tribunal finds that the dishonesty of the applicant in his responses to IO regarding his eligibility to work on a permanent basis is not relevant to deciding whether the Code was breached. It is sufficient to find that IO’s decision to not hire the applicant was tainted by the permanence requirement. For this merits decision (as opposed to remedy), the focus is appropriately on IO’s conduct during the job selection process and its conditional offer to the applicant. The Tribunal was not persuaded that “but for” the applicant’s dishonesty, he would have been hired by IO. Any consideration of the applicant’s dishonesty must be viewed in context: he misrepresented his eligibility to work permanently in order not to be categorized by IO as “ineligible” for a permanent position before his skills and experience were evaluated by IO. The Tribunal finds that the applicant’s misrepresentation is inextricably linked to IO’s pre-employment “permanence requirement” that deemed him ineligible for a permanent position.

[20] In the result, the Tribunal finds that IO’s offer with the “permanence requirement” that the applicant could not meet was discriminatory under the Code on the basis of citizenship.

With respect to the appropriate remedy, HRTO Vice-Chair Mark Hart wrote the following in his reasons later reported as Haseeb v. Imperial Oil Limited, 2019 HRTO 1174 (CanLII):

[34] In approaching the issue of the applicant’s dishonesty in the context of the remedial hearing, it is important to start with the basic remedial principles that this Tribunal is directed to apply when considering the matter of monetary compensation. As confirmed by the Ontario Court of Appeal in Airport Taxicab (Malton) Assn. v. Piazza, (1989) 69 O.R.(2d) 281 at para. 9 (Ont. C.A.), the purpose of compensation under the Code “is to restore a complainant as far as is reasonably possible to the position that the complainant would have been in had the discriminatory act not occurred.”

[35] In applying this well-established and fundamental remedial principle, it is important to consider what discriminatory act or acts were found by the Tribunal. In the instant case, the Tribunal at para. 166 of the Decision on Liability not only found that the respondent’s “permanence requirement” was a factor in its decision not to hire the applicant, which constitutes discrimination in employment because of citizenship contrary to s. 5(1) of the Code, but the Tribunal further found at paras. 149 - 152 and 169(a) of the Decision on Liability that the respondent’s policy of requiring a job applicant to disclose in writing and verbally that she or he is a citizen or permanent resident of Canada is prohibited conduct in violation of s. 5(1) and ss. 23(1) and (2) of the Code.

[36] As a result, I am required to consider what position the applicant would have been in had these discriminatory acts not occurred. Had these discriminatory acts not occurred, the applicant would not have been confronted with the “Catch 22” choice of responding to what was found to be a discriminatory question about his eligibility to work in Canada on a permanent basis, either on the candidate information form or at his on-campus interview or at his on-site interviews or immediately prior to the respondent making its offer of employment. Either no such question would have been asked, or any question about work eligibility would have been restricted to asking only whether the candidate was eligible to work in Canada, to which the applicant could truthfully have answered yes. As a consequence, if I am to put the applicant in the position he would have been in had the discriminatory questions not been asked, there would have been no dishonesty about his work eligibility and no alternate explanation for the respondent’s decision not to hire the applicant. Therefore, but for the discriminatory act of considering his permanent eligibility to work in Canada as a factor in its decision not to hire him, I find that the applicant would have been hired based on his top ranking in the competition and the offer of employment that was actually made to him.

[49] My intent in this Decision is not to excuse or condone dishonesty, or to suggest that an employer cannot terminate a person’s employment or refuse to hire a person due to dishonesty. Obviously, if a person’s dishonesty is unrelated to a Code-protected ground, then it is not this Tribunal’s proper role or jurisdiction to address a decision made by an employer due to any such dishonesty. Rather, this Decision is restricted to a person’s dishonesty solely in response to questions asked during a hiring process that are themselves found to be in violation of the Code. In my view, where an allegation of dishonesty is raised in this specific context, this Tribunal needs to address dishonesty in the context of fashioning an appropriate remedy for the violation of the Code that arises from the asking of the prohibited questions, in the context of applying well-established remedial principles under the Code. As I will discuss below, the conduct of an applicant who engages in dishonesty in such circumstances is, in my view, most appropriately addressed in the context of the exercise of this Tribunal’s discretion in determining whether to award compensation for injury to dignity, feelings and self-respect or in the quantum of any such award.

[50] I agree with the submission made by Commission counsel in Kolev, above, that to find otherwise would potentially allow a respondent to do an “end run” around the Code. For example, consider a situation where a landlord on a phone call with a prospective tenant asks the person if they are White, and the person says yes. The person then shows up to sign the rental agreement, and the landlord discovers the person in fact is Black. Could the landlord refuse to rent the apartment to this person not because they are Black but because they lied in response to the question about whether they are White, on the basis that truthfulness and trustworthiness are fundamental to the landlord-tenant relationship? Similarly, could an employer ask a prospective employee whether he is gay or whether she is pregnant, be told no, later find out otherwise, and fire or refuse to hire the person not because of their sexual orientation or because they are pregnant but because they lied about it? In my view, the answer in these situations is clearly no, on the basis that the initial question itself is prohibited by the Code.

The applicant claimed monetary compensation for lost income to be calculated on the basis of the difference between the income that he would have received had he been hired by the respondent as an entry-level project engineer, and the income that he in fact received from other employment, during the period from March 2, 2015 when he first became eligible to work upon receipt of his post-graduate work permit and SIN, and May 3, 2019, when he left his other employment to pursue different career opportunities.

The applicant was awarded monetary compensation for lost income in the total amount of $101,363.16. In making such award, Vice-Chair Hart wrote the following:

[88] The applicant is claiming lost income for a period of over four years, from March 2, 2015 to May 30, 2019, although he makes no claim for the 10-month period of his unpaid leave of absence during this time.

[89] As stated above, it is well-established that in human rights cases, an award for lost income is not limited to the period of reasonable notice, as in a wrongful dismissal claim, but extends over such period of time as is required to restore an applicant to the position they would have been in but for the discrimination. See, Airport Taxicab (Malton) Association v. Piazza, above.

[90] In Fair v. Hamilton-Wentworth District School Board, 2013 HRTO 440 upheld by 2016 ONCA 421, the Tribunal stated at para. 31: “There are numerous human rights cases awarding full compensation for the entire period of unemployment or underemployment resulting from a discriminatory termination.” Reference was made to the decision in McKee v. Hayes-Dana Inc., (1992) 12 CHRR D/79 (Ont. Bd. Inq.) in which the Board ordered the respondent to compensate the complainant for lost wages and benefits for a period of 8 years. Similarly, in Fair, above, the applicant was awarded lost income for the entire period from the time her employment was terminated until she was reinstated, which at the time the decision was released was for almost 10 years.

[91] In determining the appropriate length of time to award compensation for lost income, once again one must start from the well-established remedial principle of putting the applicant in the position he would have been in but for the discrimination. This calls upon the Tribunal to consider, to the best of its ability, what more likely than not would have happened if an applicant’s employment had not been terminated for a discriminatory reason or, as in this case, if the applicant’s job offer had not been rescinded for a discriminatory reason or on the basis of his answers to discriminatory questions.

[92] In my view, there are two aspects to this assessment. The first aspect is from the applicant’s perspective, and the question is whether from his perspective he more likely than not would have remained employed by the respondent during the entire period for which lost income is claimed. On the basis of the evidence before me, I find that he would have. He described the position with the respondent as his “dream job.” It met all the criteria he was looking for. It was an engineering position, it would enable him to pursue his professional engineering designation, it was in the oil and gas sector, it was with a “super-major” company, it offered the possibility of international opportunities, and it was well-paying. I also have regard to the longevity of the applicant’s employment with Deloitte as further supporting the finding that he would have continued in the same job for the entire period claimed.

[93] The second aspect to this assessment is from the employer’s perspective, and the question is whether the employer more likely than not would have continued to employ the applicant for this entire period. Once again, I find that this conclusion is supported by the evidence. The position taken by the respondent at the liability hearing, and confirmed through the evidence of its Human Resources Manager who testified at the liability hearing, was that the respondent wants to hire engineers who will stay employed with the respondent in different positions for their entire career. Specifically, with respect to the entry-level project engineer position, the respondent stated that it expects that the engineers that it hires will be repeatedly promoted and transferred to more senior positions. It was stated that the respondent’s employee relations strategy is focused on doing everything possible to attract and retain engineers who are hired out of university. See, Decision on Liability at para. 26.

[94] The conclusion that, from the respondent’s perspective, the applicant more likely than not would have remained employed for the entirety of the relevant period is further supported by the actual experience of the other three engineers who were hired out of the competition for the position to which the applicant had applied. While one of these three engineers left employment with the respondent after two years, the other two engineers continued to be employed by the respondent throughout the entire period.

[95] As a result, I find that the applicant is entitled to claim lost income for the entirety of the period from when he would have commenced employment with the respondent until May 3, 2019, less the 10-month period when he was on an unpaid leave of absence.

In awarding the applicant $15,000 as Compensation for Injury to Dignity, Feelings and Self-Respect, Vice-Chair Hart wrote this:

[108] The Tribunal’s decisions primarily apply two criteria in evaluating the appropriate award of damages for injury to dignity, feelings and self-respect: the objective seriousness of the conduct; and the effect on the particular applicant who experienced discrimination. The first criterion recognizes that injury to dignity, feelings, and self-respect is generally more serious depending, objectively, upon what occurred. The second criterion recognizes the applicant’s particular experience in response to the discrimination. Damages will be generally at the high end of the relevant range when the applicant has experienced particular emotional difficulties as a result of the event, and when his or her particular circumstances make the effects particularly serious. See Arunachalam v. Best Buy Canada, 2010 HRTO 1880 (CanLII).

[109] In terms of the objective seriousness of the conduct found to be discriminatory, I appreciate that in many ways the issue determined in this case was novel and that the respondent did not believe that it was acting in violation of the Code. At the same time, I find that the decision to deny the applicant employment in an entry-level engineering position at the very start of his career was objectively serious.

[110] In terms of the subjective effect on the applicant, this is not a case where the applicant has submitted medical evidence to support a significant health impact from the discriminatory conduct. But that is not required in order to obtain an award of compensation. It also is not required that an applicant be an eloquent witness who is able to effectively articulate the impact of the discrimination. In this case, the objective facts are that the applicant was a young man at the very start of his career who had aspirations to work as an engineer in the oil and gas sector, and these dreams were effectively taken away from him. I also note the applicant’s particular vulnerability as an immigrant to Canada with uncertainty as to his status at the relevant time.

[111] Another factor that this Tribunal takes into account in awarding compensation is to make awards that are consistent with awards made in other similar cases. In the employment context, where the discriminatory conduct at issue has resulted in an applicant losing a job or job opportunity, awards of general damages typically have been made in the amount of at least $15,000 and higher.

[112] In relation to the applicant’s dishonesty, I note that where an applicant’s conduct has contributed to the context or circumstances in which discrimination was found, the Tribunal will reduce the award of compensation to take account of such conduct. See Abdallah v. Thames Valley District School Board, 2008 HRTO 230 (CanLII); Pilkey v. Guild Automotive Restorations Inc., 2012 HRTO 1522 (CanLII) aff’d on judicial review at 2013 ONSC 3129 (CanLII) (Div. Ct.).

[113] In the instant case, I find that the applicant’s dishonesty was in response to conduct that was found to be discriminatory, rather than contributing to the conduct. I further note that in the Davis case, above, the applicant was awarded $10,000 in compensation notwithstanding that he deliberately concealed and lied about his knee injury. Further, in that case, the quantum of compensation was reduced on the basis of the Tribunal’s finding that the applicant did not lose the job because of the discrimination but due to his own misrepresentation.

[114] In Lane, above, the Tribunal awarded $35,000 as damages for the violation of the complainant’s inherent right to be free from discrimination, and a further $10,000 for reckless infliction of mental anguish. In this regard, I note that the impact of the discrimination on the complainant’s health in the Lane case was quite severe, as was the recklessness of the respondent’s conduct. I note that the complainant’s misrepresentation of his sick days on his employment application form was not considered as a factor to reduce the award of compensation.

[115] In the specific circumstances of this case, I find that an award of $15,000 for compensation for injury to dignity, feelings and self-respect is appropriate. In reaching this conclusion, I note that the award should be higher than what was awarded in the Davis case, given my finding that the discriminatory acts found by the Tribunal resulted in the loss of the engineering position. However, while I have found that the applicant’s dishonesty in the hiring process would not have occurred but for the respondent’s discriminatory questions, it is my view that the applicant’s conduct contributed at least in some measure to the impacts that he described in his testimony, particularly in relation to his reputation being put on the line as a consequence of the human rights application and being called a liar in the media.

In the end, the applicant was awarded: (a) $101,363.16 as monetary compensation for lost income, subject to applicable statutory deductions; (b) $15,000.00 without deduction as monetary compensation for injury to dignity, feelings and self-respect; plus (c) the further sum of $3,997.54 as pre-judgment interest on the foregoing amounts.

Commentary

Without reading beyond the headlines about this case, it is hard not to have a visceral response. The applicant in this case lied about his ability to work in Canada, and was still awarded $120,000 in damages? But employers have the right to confirm that workers have the legal ability to work in this country! How can this be?

Pausing to think on the case, however, one note two things. First, the Tribunal noted that the issue was not whether the applicant was able to legally work in Canada, the question was whether he would be able to do so on a “permanent” basis. Permanency was clearly the fatal distinction.

Second, and with respect to respect to the applicant’s dishonesty, Vice-Chair Hart’s comments, at paragraph 50 of his reasons for decision, about the black applicant for an apartment, have real currency as to the issue. Ask an illegal question, be prepared for a less than honest answer.

Frankly, I expect this case to be chased higher. However, both decisions are very well reasoned and worth the read. I’ll be surprised if they don’t withstand judicial scrutiny.

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As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation. It is always prudent to seek professional legal advice before making any decisions with respect to your own case.

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