Immigration

Human rights decision leaves LMIA screening in limbo

By AdvocateDaily.com Staff

Employers seeking Labour Market Impact Assessments (LMIAs) could fall afoul of human rights legislation after a tribunal ruled businesses cannot discriminate against job candidates able to work in the country, but do not have Canadian citizenship or permanent residence status, Toronto immigration lawyer Andrew Carvajal tells AdvocateDaily.com.

The Human Rights Tribunal of Ontario (HRTO) recently ruled a major oil company’s policy — which required job applicants to disclose verbally and in writing as to whether they are citizens or permanent residents of Canada — directly violated s. 5(1) of the province’s Human Rights Code, and could not be saved by any defences available under it.

Carvajal, a partner with Desloges Law Group, welcomes the decision but says it may cause headaches for employers who hope to employ foreign workers due to requirements of the LMIA process.

Before obtaining a positive LMIA for a particular position, businesses must advertise them in this country in order to demonstrate there are no qualified Canadian citizens or permanent residents available to fill the vacancies. As a result, Carvajal says businesses routinely screen prospective candidates’ status in Canada as part of the process.

“This decision is going to make that kind of screening risky,” he says. “Employers will have to be careful about how they do it because it’s possible that asking someone if they are on a work permit or a permanent resident, could be considered discrimination.

“We’re going to have to give some thought about how to answer those questions without running afoul of human rights legislation,” Carvajal adds.

The case dates back to 2014 when a Pakistani international student at McGill University was offered an engineering job by the company in Sarnia. However, the offer was rescinded when the business discovered the man’s status in Canada was temporary since he was only eligible to stay in Canada under a three-year post-graduate work permit.

According to the decision, he was the top-ranked candidate after two rounds of interviews for an $87,000 entry-level position, but the company back-pedalled after discovering the man misled them about his status in Canada.

Still, HRTO Vice-Chair Yola Grant found the policy to ask the question about permanent status in the first place violated the Code.

The company argued its permanent status policy was a bona fide occupational requirement, claiming it did not want to risk the time and money it takes to train a newly qualified engineer on a candidate who may not be allowed to stay in the country.

However, Grant rejected the defence, noting the company had, in exceptional circumstances, hired engineers who failed to meet its permanent residence or citizenship test for eligibility.

The adjudicator urged the parties to settle following her interim decision, but a hearing on damages will follow at the tribunal if they can’t agree.

In a statement to the Toronto Star, the oil company said it was considering its options, while respectfully disagreeing with the decision.

"(The company) is committed to conducting business with the highest level of business ethics and integrity, we practice it as a company and expect it from our current and future employees,” a spokesperson wrote to the newspaper.

Carvajal says he has some sympathy for the organization's arguments but believes the tribunal got the call right.

“It makes sense to me that discrimination on the basis of place of origin, citizenship and ethnic origin doesn’t just apply to your passport, but also to the nature of your residence in Canada,” he says.

“It’s good news for clients, that regardless of their temporary status, they have protection and shouldn’t be treated differently when it comes to hiring practices,” Carvajal says.

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