As a best practice, employers should refrain from inquiring a candidate’s citizenship status during the hiring stage. This is because citizenship status is a protected ground of discrimination under the Ontario Human Rights Code. Although much training and time can be invested for new employees, this does not allow the employer to make a hiring decision based on the permanency of a potential employee’s residency. Citizenship status is a protected discriminatory ground under human rights law which means the decision to hire (or disqualify) a candidate cannot even be partly based upon citizenship.

The case of Haseeb v. Imperial Oil Limited (2019) speaks to the issue of citizenship status being an essential requirement of the job. During the hiring process, Mr. Haseeb was the top ranked candidate for a Project Engineer position, and was ultimately offered the job. However, upon learning that Mr. Haseeb was not a permanent resident of Canada, Imperial Oil rescinded the employment offer. Mr. Haseeb ended up successfully challenging this at the Human Rights Tribunal where it was found that the requirement of permanent residency was discriminatory upon Mr. Haseeb’s citizen status.

Imperial Oil could not justify permanent residence as a business need. The hiring criteria set the minimum requirement as permanent residency, thus setting the discriminatory practice between citizens and non-citizens. Although Mr. Haseeb was dishonest about his citizen status during the hiring process, the requirement of disclosing citizenship status was not acceptable.

The only exception to discriminatory policies or practices are ‘Bona Fide Occupational Requirements’ or ‘BFORs’. To establish this requires a 3 step analysis which includes the employer demonstrating undue hardship as a result of hiring a candidate that lacks the sought requirement. In this case, Imperial Oil was not able to establish that hiring a non-permanent resident would result in undue hardship, as this is a high standard to meet.

If you are an employer or employee faced with a scenario similar to the above, it is advisable to seek the services of an employment lawyer. He/she will provide the guidance necessary for a positive outcome.

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