Human Rights Tribunal Prohibits Ontario Employers from Requesting Immigration Status of Job Applicants

Human Rights Tribunal Prohibits Ontario Employers from Requesting Immigration Status of Job Applicants

Author/ Guidy MamannJuly 26, 2018

Human Rights Tribunal

In a landmark decision issued on July 20, 2018, the Ontario Human Rights Tribunal ruled that an employer may not require a job applicant to disclose that she or he is a citizen or permanent resident of Canada as that constitutes prohibited conduct that directly violates section 5 (1) of the Code and which is not saved by any defense available under that Code.

This may have wide sweeping implications for employers who conduct business in Ontario and for their Human Resources personnel.

The Tribunal found that “the dishonesty of the applicant in his responses to IO (i.e. Imperial Oil) regarding his eligibility to work on a permanent basis is not relevant to deciding whether the Code was breached”

The relevant section of the Code states as follows:

(1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.  R.S.O. 1990, c. H.19, s. 5 (1); 1999, c. 6, s. 28 (5); 2001, c. 32, s. 27 (1); 2005, c. 5, s. 32 (5); 2012, c. 7, s. 4 (1).

The exceptions to the rule is found in subsections (1) to (3) of the Code which states as follows: 

Canadian Citizenship

16 (1) A right under Part I to non-discrimination because of citizenship is not infringed where Canadian citizenship is a requirement, qualification or consideration imposed or authorized by law.  R.S.O. 1990, c. H.19, s. 16 (1).

(2) A right under Part I to non-discrimination because of citizenship is not infringed where Canadian citizenship or lawful admission to Canada for permanent residence is a requirement, qualification or consideration adopted for the purpose of fostering and developing participation in cultural, educational, trade union or athletic activities by Canadian citizens or persons lawfully admitted to Canada for permanent residence.  R.S.O. 1990, c. H.19, s. 16 (2).

(3) A right under Part I to non-discrimination because of citizenship is not infringed where Canadian citizenship or domicile in Canada with the intention to obtain Canadian citizenship is a requirement, qualification or consideration adopted by an organization or enterprise for the holder of chief or senior executive positions.  R.S.O. 1990, c. H.19, s. 16 (3).Ontario employers are advised to immediately consider the effect of this ruling in their job postings, questionnaires, interviewing and hiring practices. For further information please contact Mamann, Sandaluk & Kingwell LLP. 

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