The Hiring Process and Citizenship
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The Hiring Process and Citizenship

Stuart Rudner here with another Rudner Law video employment law update.

Today, I want to talk about the hiring process and citizenship. Specifically, whether employers can ask new applicants where they’re from, whether they are a Canadian citizen, or other things relating to personal and confidential matters that should not be part of the hiring process.

Our human rights legislation is very clear: you cannot discriminate on the basis of citizenship or country of origin, so you should never have a field on your application form that asks where they’re from, you should never be asking whether they are Canadian citizens, and you should never ask that in the hiring process at all.

So what happens when you do? Well, Imperial Oil learned that lesson the hard way recently.

This is a case going back several years now, where a young student who was in Canada on a student visa was applying for a job with Imperial Oil, and he was asked during the interview process whether he was permanently eligible to work in Canada. He’d been forewarned about this requirement, and told that if he didn’t say yes, he would not get the job. So what did he do? He lied, he basically refused to acknowledge the fact that he was in Canada on a student visa, which would either have to be renewed or converted into something more permanent. He actually was the top candidate and was offered a job, conditional upon his providing confirmation that he was permanently eligible to work in Canada. When he was unable to do so, the offer was rescinded and he brought a claim to the Human Rights Tribunal in Ontario, saying that he had been discriminated against on the basis of citizenship.

That case was ultimately decided in his favour, and even though Imperial Oil made a number of arguments including the fact that his dishonesty was the reason why he wasn’t hired, Imperial Oil lost and the tribunal agreed that the citizenship was at least part of the reason why this individual was not offered the job, which was discrimination contrary to the human rights code. Now interestingly the tribunal in that case left the parties with a chance to resolve the quantum of damages on their own, failing which they could return to the tribunal for a proper assessment of damages.

They were not able to resolve that matter so it went back to the tribunal and ultimately the individual was awarded approximately $120,000 in compensation, and how was that broken down? Well as many people will know, at the tribunal, unlike a wrongful dismissal claim, there is no limit on the entitlement to lost income. In wrongful dismissal claims, you may have a contract that limits your entitlement otherwise you’re going to look at common factors such as the individual’s length of service, such as their age, their position, and the availability of similar employment, and it may be limited to two years at most. The human rights tribunal will provide for lost income, which is very different and is typically the amount of income that would have been earned from the time of the breach to the time of the hearing. In this case, that was about four years, and ultimately the applicant received approximately four years worth of wages plus general damages for injury to his dignity and sense of self respect in the amount of $15,000, so this cost Imperial Oil over $120,000 plus of course their legal fees, which I’m sure brought it to substantially more.

Ultimately the lesson here is that if you’re an employer, you certainly can and should ask whether someone is legally entitled to work in Canada, before you hire them, but you cannot ask them where they’re from, and you cannot discriminate against them on the basis of their country of origin, their nationality, their citizenship, etc., and if you’re an employee, or an applicant, and you were asked these questions, you should go to an employment lawyer and make sure that your rights are protected because ultimately you should not be discriminated against on the basis of protected grounds like citizenship.

As always if you have any questions about this, feel free to contact any member of the Rudner Law team, and we’d be happy to speak with you and help you if we can, and as I often say, if you think you might need an employment lawyer, you probably do, thanks for tuning in.

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Stuart and others on the team at Rudner Law are frequent contributors to the following sites: 

First Reference Employment Law Resources
Canadian HR Reporter Blog
Rudner Employment Lawyer in the Lawyer's Daily
Legal Matters Employment Law Canada

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