Protected Ground of Citizenship does not Include Permanent Residency
- June 21, 2021
Ontario’s Divisional Court allowed an application for judicial review regarding the 2018 case of Haseeb v. Imperial Oil (Link) .While the Tribunal had ruled that the protected ground of citizenship extended to permanent residents, the Divisional Court disagreed and overturned this finding.
The case was brought by Muhammad Haseeb –a mechanical engineering student in his final term at McGill University who had filled out an online application for a position with the Respondent – Imperial Oil.
The job application required that any prospective employee be eligible to work in Canada permanently. At the time he applied, Mr. Haseeb was an international student with a student visa, upon graduation he would become eligible for a post-graduate work permit for a fixed term of three years which would permit him to work full-time in Canada.
Mr. Haseeb was later offered a position with the company, on the condition that he provide documentary proof of citizenship or permanent residency. When Mr. Haseeb revealed that he was not a permanent resident, Imperial Oil rescinded the offer. Mr. Haseeb then filed an application with the HRTO alleging discrimination on the basis of citizenship.
The HRTO allowed the application, ruling that the permanent residence requirement discriminated against Haseeb on the basis of citizenship and could not be justified as a bona fide occupational requirement. The HRTO ruled that to obtain protection from discrimination on the basis of citizenship the applicant only needed to establish that the alleged discriminatory treatment was linked to their personal characteristic of being a non-citizen.
Now, the Divisional Court has held that the Tribunal’s finding was unreasonable (Link) [Haseeb]. The majority of the Court held that the ordinary meaning of permanent residency is separate from and extends beyond citizenship. Therefore, to include it as covered by the ground of citizenship is to add “substance to the ground that would not otherwise have been there” (Haseeb, at para 47). Since permanent residency is not a ground identified in the Ontario Human Rights Code (Link) [Code], there could not be a prima facie case demonstrating discrimination on the requirement that an employee be permanently residing in Canada.
Writing in dissent, Justice H.E. Sachs held that the HRTO had been reasonable in determining the meaning of citizenship under the Code. Further, the HRTO’s interpretation of citizenship was in line with Legislature’s express intent, citing s.16 of the Code which contemplates discrimination on the basis of permanent residency and citizenship. From the dissent’s perspective, it did not matter that some non-citizens were not disadvantaged by the requirement. It was enough that only non-citizens were disadvantaged by Imperial Oil’s requirement, thus demonstrating discrimination on the basis of citizenship.
The Divisional Court’s decision limits protection to those who are not permanently residing in Canada. Following the initial HRTO ruling, it appeared that residency could no longer be including as a requirement for job applications, tenancy applications, service applications, or other areas covered by the Code. However, the Divisional Court’s ruling that citizenship excludes permanent residency as a characteristic that is protected under the Code, means that employers and others with Code-related obligations can make distinctions based on residency requirements.