Accounting for Law

Job candidate accepted then rejected has meritorious HRTO case

An engineering graduate who was accepted and then rejected for a job with Imperial Oil because he wasn’t a permanent resident of Canada has a meritorious case at the Human Rights Tribunal of Ontario (HRTO), says Toronto immigration lawyer Andrew Carvajal.

Muhammad Taimoor Haseeb was offered a job as a project engineer with Imperial Oil in December 2014, but the offer was rescinded just a few weeks later when the company learned he wasn’t a permanent resident, states a press release from his lawyer.

"The phrase 'legally able to work in Canada on a permanent basis' appears daily in job postings across the country," the release says. "At a time when the Canadian government is begging for skilled professionals, this bar to employment is absurd. It also constitutes discrimination, because the concept of 'permanence' is linked with citizenship and country of origin," it claims.

Haseeb filed his HRTO application in February 2015 and a hearing is scheduled for March 2016.

Carvajal, who is not involved in the matter and makes his comments generally, says Haseeb’s complaint seems, on the surface, to meet the tests for a violation of the Ontario Human Rights Code.

“The question was not whether he was entitled to work in Canada, he certainly was as everything indicates he has a valid work permit,” says Carvajal, a partner with Desloges Law Group. “That they rejected him because he wasn’t a permanent resident doesn’t seem to follow unless his work permit only had a few weeks left, but it doesn’t appear that way.”

Carvajal tells the Human Rights Code prevents discriminatory hiring practices on a variety of grounds, including ancestry, citizenship, ethnic origin and place of origin. An employer must provide equal treatment to all persons capable of performing the essential duties of a job and can't judge an employee incapable of performing such duties until efforts have been made to accommodate the employee up to the point of undue hardship.

It will be the onus of the employer to show that hiring someone who is not a permanent resident imposes undue hardship in the workplace, he adds.

Haseeb seems to have the right credentials — he scored top marks at McGill, was active as the student club president, mentored other students, and was offered four jobs in December 2014, the press release states.

In the normal course of events, a student graduating from university with a degree would be issued a work permit, usually for the same period of time they were in school up to a maximum of three years, Carvajal explains. Over that time period, they would live and work in Canada and eventually could apply for — and normally be granted — permanent residency.

“He is definitely covered by the Ontario Human Rights Code,” Carvajal says, noting that despite the fact Haseeb was able to secure another position and is working now, the complaint remains valid.

In a Tribunal such as this, the question is not how much he lost by turning down the other positions he was offered, but whether or not his rights were violated, Carvajal says.

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