Canadian Employment Law Today

STUART McKELVEY HALIFAX Have a question for our experts? Email Jeffrey.R.Smith@thomsonreuters.com Canadian HR Reporter, a Thomson Reuters business 2019 2 | February 20, 2019 with Brian Johnston Ask an Expert Canadian HR Reporter, a Thomson Reuters business 2019 Requiring job applicants to be citizens or permanent residents Question: Can an employer who is looking for a long-term employee state in a job posting that all candidates can apply, but priority will be given to Canadians and permanent residents? Contacting employee's doctor Question: Can and should an employer request permission from an employee on medical leave to directly contact the employee's doctor to get information on the employee's return-to-work prognosis? Answer: In Canada only citizens and permanent residents have the right to work permanently for an employer, whereas individuals on work permits have the right to work for a temporary or defined period of time. While there is nothing prohibiting em- ployers from specifying in a job advertise- ment or application that citizens and per- manent residents will be prioritized, this could have the appearance of discrimina- tion and give rise to possible human rights complaints. ere have been few decisions dealing with "citizenship" as a protected character- istic under human rights laws in Canada. e Ontario Human Rights Tribunal in a July 2018 decision (Haseeb v. Imperial Oil Limited) recognized that a "permanency requirement" — that the candidate be eli- gible for a permanent work position as a Canadian citizen or permanent resident — was discrimination based on the ground of "citizenship." In that case, the applicant was a student at McGill University completing his me- chanical engineering degree and applied for a position with Imperial Oil (IO). IO had a very clear policy requiring that graduate engineers have either permanent residency or citizenship in order to be eligible for the position. While the applicant intended to apply for a three-year "post graduate work permit" upon graduation, in which time he would then apply for permanent residency, the applicant was neither a citizen nor a permanent resident at the time of the ap- plication. Nonetheless, the applicant held himself out as having either citizenship or permanent residency on applications and throughout the interview process. e ap- plicant was ranked first among his peers and offered the position. Following gradu- ation, the applicant was approved for the three-year post graduate work permit, but was unable to provide the required proof of citizenship or permanent residency to IO. e job offer was rescinded. While Ontario and Nunavut are the only provinces and territories that currently have "citizenship" as a protected characteristic in their human rights legislation, it is pos- sible that other tribunals across the country might find this decision persuasive. Having said that, what would normally appear as an employer's discriminatory action can be justified if the employer can show that the actions taken were a "bona fide occupational requirement" (BFOR), and that undue hardship would occur if the employer was forced to accommodate the employee. In Haseeb, the employer's BFOR was that it was investing extensive time and money in its junior employees, and that in order to see the return on that investment, IO needed the assurance that the employee would remain with the company perma- nently, and furthermore it would cause the employer undue hardship and financial loss to accommodate non-permanent em- ployees. While Meiorin articulated a "unified" approach for the BFOR defence to apply to both direct and indirect discrimination, it should be noted that the Ontario Code allows for only limited BFOR defences for direct discrimination. As such, the tribu- nal found that because the policy was ac- tively distinguishing between candidates based on citizenship, this amounted to di- rect discrimination (as opposed to indirect discrimination) and therefore, the BFOR defence could not be relied on. So it would seem then that employers cannot give preference to citizens and per- manent residents? Not exactly, it is a finer balance than that. While employers must be cognizant of human rights issues, there remains the correlative duty to ensure that the Canadian labour market is being sup- ported, and that Canadian citizens and permanent residents have access to em- ployment. For employers, the Immigration and Refugee Protection Regulations are clear that when approving work permits for applicants coming from outside Canada, the officer must determine if the employ- ment of the foreign national is likely to have a neutral or positive effect on the labour market in Canada (Regulations, 203(1)(b)). In so doing, one of the factors to consider is whether the employer will hire or train Canadian citizens or permanent residents or has made, or has agreed to make, reason- able efforts to do so (Regulations, 203(3)(e)). Employers need to ensure that, on the one hand, citizens and permanent resi- dents are not being disenfranchised due to foreign workers, and on the other hand, that non-citizens and non-residents are not being deprived of opportunities on the sole basis of their immigration status. Employers should be cautious with the language used in applications and adver- tisements when it comes to citizenship requirements. is type of preferential lan- guage with regards to citizenship should be avoided. For more information see: • Haseeb v. Imperial Oil Limited, 2018 CarswellOnt 20932 (Ont. Human Rights Trib.). Answer: Not as a first or early step; employ- ers should go there only if it is absolutely necessary. Even with consents, employees' doctors are reluctant to directly engage with the employer. But the employee needs to satisfy the employer from time to time about her return-to-work prognosis; there- fore an employer has the right to such in- formation. In some instances, the employee-provided information is not adequate and, consistent with the employer's duty to accommodate and with the employee's duty to participate in the accommodation process, the employ- er can and should as appropriate identify the inadequacies of the information provided and make a request for better information from the employee. However, that can be time consuming and therefore a direct request from the employ- ee's doctor — supported by the employee's signed consent — may result in the employ- er obtaining the information more quickly. Most often employers will engage their own physician — again supported by the employ- ee's consent — for that physician to deal with the employee's doctor to obtain the requisite information. at seems to work. Brian Johnston, Q.C., is a partner with Stewart McKelvey in Halifax. He can be reached at (902) 420-3374 or bjohnston@ stewartmckelvey.com.

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