Case In Point
Divisional Court Finds “Permanent Residence” Not a Protected Ground under Ontario Human Rights Code
Date: July 7, 2021
In the recently released decision of Imperial Oil Limited v. Haseeb, a majority of the Divisional Court (Court) quashed a decision of the Human Rights Tribunal of Ontario (Tribunal) which treated “permanent residence” as intrinsically included in the protected ground of “citizenship.” The majority held that such an expansion to the ground of “citizenship” was not sustainable under the applicable standard of review. It stated that there can be no direct discrimination based on the requirement that an employee be a permanent resident and confirmed that “permanent residence” is not a protected ground identified by the Ontario Human Rights Code (Code).
As discussed in our previous Case in Point on the Tribunal decision, an international student completing his engineering degree at McGill University applied for a job at Imperial Oil. In order to qualify, Imperial Oil stipulated that candidates must be eligible to work in Canada on a permanent basis. Although the student anticipated that he would eventually obtain permanent residence status, he was, at that time, on a student visa and upon graduation, would only be eligible to apply for a postgraduate work permit for a fixed term of three years. Nevertheless, the student indicated throughout the hiring process that he was eligible to work in Canada on a permanent basis and was ultimately offered the job. The offer was conditional on proof of his permanent residence status, and because the student was unable to provide such proof, Imperial Oil rescinded its offer.
The student brought an application before the Tribunal alleging discrimination with respect to employment. The Tribunal determined that Imperial Oil’s rescission of the job offer was based on his immigration status, which amounted to direct discrimination. In arriving at its conclusion, the Tribunal expanded the meaning of the ground of “citizenship.” In a separate decision, the Tribunal awarded the student approximately $120,000 for lost income / compensation.
Judicial Review Application
The Court recognized the Tribunal’s unique position to help decide and define the substance of societal values in an ever-changing social environment. However, because of this unique position, the Court considered it imperative that the Tribunal be clear and precise in the analysis it presents.
The Court was tasked with determining whether the decision of the Tribunal to subsume “permanent residence” into the ground of “citizenship” was based on internally coherent reasons and part of a rational chain of analysis, per the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v. Vavilov, which recently set out a new analysis for the standard of review test. The majority held that the standard to be applied in the case was one of “deference,” finding that both the standard of “reasonableness” and “patently unreasonable” (as set out in the Code) signify deference.
The Court’s Analysis
The majority started its analysis by reviewing the reasons of the Tribunal to ensure that they were internally coherent. It reviewed the meaning of the protected ground of “citizenship” and the proposed category of “permanent residence,” and looked at the plain and obvious meaning of those terms. Justice Lederer noted that the Tribunal’s decision did not go through this exercise, and yet decided to expand the scope of the meaning of “citizenship.” The failure to examine the plain and ordinary meaning of “citizenship” and “permanent residence” was found to be a gap in the Tribunal’s analysis. The substantive, coherent and complete chain of analysis as required by Vavilov was not present.
The majority engaged in a detailed analysis and found that “citizenship” and “permanent residence” are separate in meaning. It confirmed that “permanent residence” is not a ground of discrimination under the Code and there is nothing in the plain and ordinary meaning of the applicable words that would make it so. The majority recognized the need to afford the Code broad, liberal and purposive interpretation consistent with its remedial objectives. However, to extend the meaning of “citizenship” as the Tribunal did went beyond “the breaking point.”
Of note, Justice Sachs wrote a lengthy dissent. In applying the standard of review of reasonableness, she found that the Tribunal’s decision satisfied the necessary standards and the Application for Judicial Review ought to be dismissed. Justice Sachs also found that the Tribunal appropriately examined its own legislation and the meaning of “citizenship” under the Code and its decision was internally coherent and ought not to be interfered with.
The majority of the Court concluded that there was an absence of substantive rationale in the Tribunal’s decision. Moreover, it was lacking intelligibility and transparency and could not be justified. The Tribunal’s analysis and the cases referenced, failed to justify a finding that “citizenship” included a second and separate criterion of “permanent residence.”
In quashing the Tribunal’s decision, the majority also refused to remit the matter back to the Tribunal for reconsideration because it was inevitable that a claim of discrimination (whether direct, indirect, or constructive) would not succeed.
While the majority of the Court determined that “permanent residence” is not a protected ground under the Code, it is important for employers to continue to be mindful of their hiring criteria, since such criteria may be treated as a subset of a current protected ground. At this stage, there can be no discrimination based on a requirement that an employee be a permanent resident in Canada.
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