With over 800,000 international students entering Canada in 2023, Canadian employers may receive applications from these students while they study and after completing their degree/diplomat/certificate programs in Canada as potential applicants to their companies. Recently, as of July 2023, the Ontario Court of Appeal had to deal with this issue – Should your citizenship be a hiring requirement? – in Imperial Oil Limited v. Haseeb, 2023 ONCA 364.
In essence, Mr. Haseeb was an international student initially and received his post-graduate work permit after graduating from McGill University in Montreal. During his final semester of study (before his graduation), he applied for a job at Imperial Oil Limited, which required applicants to be permanently eligible to work in Canada. That proof of eligibility “must be in the form of your Canadian birth certificate, Canadian citizenship certificate or Canadian certificate of permanent residence.”
Mr. Haseeb applied for this job by answering that he was eligible to work in Canada permanently without submitting any proof of such eligibility. After completing all recruitment procedures, Mr. Haseeb was offered employment and asked to provide proof of his eligibility to work permanently in Canada. Then, he submitted his post-graduate work permit with a promise that he would become a permanent resident within those three years.
Imperial Oil Limited retracted such a job offer, arguing that Mr. Haseeb lied about his job application. Mr. Haseeb argued that he was discriminated against based on his citizenship or lack of Canadian citizenship. This case started as a human rights complaint case by Mr. Haseeb, which went to the Ontario Divisional Court and finally to the Ontario Court of Appeal; as a result, this case can be considered a deciding case for such question unless the Supreme Court of Canada may take up to consider it further.
The short answer is NO. Canadian employers should not use Canadian citizenship or Canadian permanent residency as a hiring requirement.
What should Canadian employers do after this case?
- You cannot put a requirement of Canadian citizenship or Canadian permanent resident status as a hiring requirement.
- However, you MAY require applicants to provide proof of eligibility to work in Canada – as long as applicants have legal means to work for employers for the job they have applied for, employers cannot ask for Canadian citizenship or Canadian permanent residency as proof for such eligibility to work in Canada.
- Timing can be important – employers should ask ONLY AFTER the applicant gets the job offer, with a condition to provide proof of eligibility to work in Canada. You cannot ask for such proof BEFORE making any offer of employment. If employers ask for such proof of eligibility to work in Canada BEFORE making any offer of employment AND applicants do not get the offer, there is a possibility for such applicants to make human rights complaints based on citizenship or permanent residency grounds.
This case is excellent motivation for any Canadian employers to review their hiring procedure to see if they are in compliance with the new update on this issue. Please note that this is general legal information ONLY on immigration and employment legal updates and cannot apply to your unique or particular situation. We highly recommend you to seek assistance with your local employment legal professional first before making any decisions.