By Howard Levitt and Kathryn Marshall 

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Howard Levitt: Why employers are now in a Kafkaesque predicament when it comes to residency status of hirees Back to video

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Employers be warned. Sometimes saying you are going to follow the law is enough to get you in trouble with the law.

Last month, the Ontario Count of Appeal ruled that Imperial Oil Ltd. was wrong to require permanent residency or citizenship as a condition of employment. Bizarre because you can only work permanently and without restrictions in Canada if you are a citizen or permanent resident.

A few years ago, Muhammad Haseeb, was studying mechanical engineering at McGill University. With his graduation coming up, he applied for an entry-level engineering job with Imperial Oil and received an offer. One of the conditions of that offer was that he had to have permanent residency in Canada.

But Haseeb was not a permanent resident and he could only work in Canada as part of Post-Graduate Work Permit program. That is a federal program which allows international students who get Canadian degrees to work anywhere in Canada for up to three years. People with this work permit are permitted to apply to be permanent residents after a year of working full-time.

When Imperial Oil told him that he had to have permanent resident status to work there, Haseeb lied and said that he did. Eventually, Imperial Oil found out that he had not told the truth about his immigration status and rescinded the job offer on the basis of his dishonesty.

Haseeb hauled Imperial Oil in front of the Human Rights Tribunal of Ontario, sparking a years-long legal battle that ultimately worked its way through different levels of court.

Haseeb alleged that he had been discriminated against on the basis of citizenship, something that is prohibited under the Ontario Human Rights Code. In 2018, the tribunal agreed with him that that he had been discriminated against and awarded him $100,000 in damages.

Imperial Oil appealed.

The Divisional Court reversed the decision reasoning that while “citizenship” was protected under the Ontario Human Rights Code, that did not include the concept of being a “permanent resident.” Haseeb then appealed, leading us to the recent judgement by the Ontario Court of Appeal.

The Court of Appeal unanimously restored the decision of the Human Rights Tribunal.

An important part of the Court of Appeal’s decision was that one of the goals of the Post-Graduate Work Permit program, which Haseeb was part of, was to allow people to get on the path to becoming permanent residents by giving them full-time Canadian work experience. Therefore, allowing job applicants to be discriminated against on the basis that they are not allowed to “work in Canada permanently” is contrary to the purposes and goals of the federal government’s immigration law.

Now employers are faced with a Kafkaesque situation where under the law they can only hire people who are eligible to work in Canada, but need to walk a fine line in asking if they have the status to do so. Further, employers cannot make permanent residency part of the criteria for employment.

This can create bizarre situations where an employer, wanting to hire someone for a multi-year contract for example, cannot make legitimate inquiries to see if that person is even permitted to work for the length of the contract.

This means the employer would then potentially have to find a new person for the job half-way through the contract if the work permit of the first person hired expires part way through.

In practice, many people working in Canada as part of the Post-Graduate Work Permit program, and others like it, apply to be permanent residents the first chance they get. However, not all do and now they can leave employers high and dry only months into the job.

Many employers likely think that by requiring proof of permanent residency in the hiring process, they are complying with the law. Now it is the precise reverse. They may be running afoul of the law in an effort to comply.

Howard Levitt is senior partner of Levitt Sheikh, employment and labour lawyers with offices in Toronto and Hamilton. He practices employment law in eight provinces. He is the author of six books including the Law of Dismissal in Canada. Kathryn Marshall is a partner with Levitt Sheikh.