By Israel Balter, August 11, 2021

For Ontario’s employers, the contemporary challenge of hiring staff is characterized by attracting talent that meets core competencies and rudimentary work habits and retaining them. It would be understandable that companies would seek a measure of assurance that the employees that they hire will stay with them. The costs incurred in training staff are as often as not a wasted investment in a market dominated by a mobile workforce exhibiting little fealty to their employers and aggravated by recurrent lockdowns.

A notable dimension to this issue is the market of short-term immigrants to Canada on student and working visas. Employers are naturally reluctant to hire employees who will be unable to commit to the long-term and obviously prefer candidates who may stay in Canada.

Imperial Oil extended an offer to an international student, Muhammed Haseeb, who was finishing up his engineering degree at McGill University. The offer was conditional on him producing evidence of his status as a permanent resident. When the company learned that he only had a time-limited student visa, it yanked the offer. Accusing the company of discrimination on the grounds of citizenship, Haseeb filed an application with the Ontario Human Rights Tribunal and recovered $120,000 in damages. Its novel reasoning was that the definition of “citizenship” under the Human Rights Code encompassed immigration status.

The decision left employers scrambling by further impairing their ability to create and sustain a stable workforce. What employer would wish to expose themselves to litigation with such ominous results?

Fortunately, the Tribunal decision has been recently reversed by the Divisional Court: Treating the requirement of permanent residency as discrimination on the basis of citizenship was going too far. Employers do have a right to ask employees whether they are permanent residents and exclude those who do not fit into that category without running afoul of the Human Rights Code or foiling their legitimate interest in a committed and durable business operation.