Human Rights Tribunal Again Sets New Law
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Written on behalf of Peter McSherry
The Ontario Human Rights Tribunal once again has released a decision with dramatic impact.[1]
Policy of Citizenship
The background to the case involved a policy of the employer which required that all new hires be eligible to work in Canada on a permanent basis. The candidates for hire must thus be either Canadian citizens or have acquired the status of “landed immigrant”.
The applicant was an international student and was not eligible to work full-time with the company. He would, however, have been eligible to receive a Post-Graduate Work Permit for three years upon the successful completion of his degree.
The Key Question
The threshold issue for the Tribunal was whether this job requirement was a breach of the Human Rights Code which denies the right of any employer to treat a person adversely due to “citizenship”. One might have thought that this term was intended to prevent adverse treatment due to foreign dual citizenship as opposed to Canadian. This was not the decision of the Tribunal.
Employer Without a Defence
Once a finding has been made of adverse treatment due to a human rights violation, as in this case, the employer usually has the right to argue that it nonetheless had a “bona fide” or good faith requirement for the stipulated term. This defence was not allowed in this case as the employer had engaged in “direct” discrimination. The Tribunal also stated that even if the company were able to argue such a defence, there was no evidence that the requirement of Canadian citizenship was such a good faith job requirement.
Understanding the Human Rights Nuances
A further issue arose in this case due to the fact that the candidate had lied to the company when he applied for the job stating that he did in fact have the required status of a landed immigrant.
The employer argued that he was not successful in his application for this reason. This argument was not successful due to the principles of interpretation of human rights law. The human rights violation need only be an influential factor, not the sole reason for the job denial.
The case was adjourned for argument as to the appropriate remedy to be imposed.
Understand the Law
This issue is well beyond the ability of a lay person to understand on an intuitive basis. This shows the need for critical and clear legal advice. Knowledge of the law can lead to surprising remedies.
Get advice before you act. Contact the offices of Guelph employment lawyer Peter McSherry. We can help you determine whether you may have a claim due to a human rights violation. Contact us online or by phone at 519-821-5465 to schedule a consultation.
