The Human Rights Tribunal of Ontario award a job applicant $101,363.16 for lost salary and injury to his dignity for having been denied a job based on his immigration status.
The matter arose when Muhammad Haseeb applied for a position as a Project Engineer with Imperial Oil, but was denied the position on the basis that he was not eligible to work in Canada on a permanent basis. To complicate the matter, both the applicant and the employer agreed facts confirmed that Imperial Oil asked the applicant if he is eligible to work in Canada on a permanent basis and that Mr. Haseeb lied when asked if he was eligible to work in Canada on a permanent basis.
At the time of the application, Mr. Haseeb was on a fixed term 3-year Post Graduate Work Permit (PGWP), which legally permitted him to work in Canada. PGWP holders are usually graduates from Canadian universities who are on a special immigration program, which eventually culminates in permanent resident status. However, while Mr. Haseeb was on the path to becoming a permanent resident, this was not his status at the time of the application. This became apparent to the employer and Mr. Haseeb’s job offer was rescinded.
Notwithstanding that the applicant did not tell the truth when asked about his ability to work in Canada permanently, the Tribunal held that rescinding the job offer on the basis of “permanence requirement” is discriminatory on the ground of Citizenship. With respect to the fact that the applicant lied, the Tribunal, at paragraph 19 of the decision states (in part):
“… 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.”
The decision by the Tribunal is important on several levels, not the least of which is that employers are not allowed to discriminate against candidates who are on Temporary Work Permits. TWPs provide a legal route for non-residents to work in Canada and denying them the opportunity to be employed is discriminatory conduct. The other important take away of this decision is that the answer to a discriminatory question cannot be used as a defence for an action deemed discriminatory.