Court of Appeal for Ontario

Date: 2022-05-12 Docket: M53348 (C70037)

Before: Gillese J.A. (Motion Judge)

Between:

Imperial Oil Limited Applicant (Respondent)

And:

Muhammad Haseeb and the Human Rights Tribunal of Ontario Respondents (Appellant)

Counsel: Sujit Choudhry and Arash Nayerahmadi, for the moving parties and proposed intervener, South Asian Legal Clinic of Ontario and Colour of Poverty/Colour of Change Network Richard Nixon and Duncan Burns-Shillington, for the responding party Imperial Oil Limited Megan Evans Maxwell and Toby G. Young, for the responding party Muhammad Haseeb Brian A. Blumenthal, for the responding party Human Rights Tribunal of Ontario

Heard: May 9, 2022 by video conference

Reasons for Decision

[1] The South Asian Legal Clinic of Ontario (“SALCO”) and the Colour of Poverty/Colour of Change Network (“COP-COC”) together bring a motion for leave to intervene, as a friend of the court, in this appeal (the “Motion”). Imperial Oil Limited opposes the Motion. Neither Mr. Haseeb nor the Human Rights Tribunal of Ontario (“HRTO”) takes a position on it. However, at the oral hearing of the Motion, counsel for Mr. Haseeb stated that the proposed intervener, because of its expertise and experience, would provide a useful and distinct perspective from that of Mr. Haseeb.

[2] For the reasons that follow, I am satisfied that the proposed intervener is likely to make a useful contribution to the resolution of this appeal without causing injustice to the immediate parties. Accordingly, I grant them intervener status.

Background

[3] While in his last year of engineering studies at McGill University, Muhammad Haseeb applied to work at Imperial Oil. Imperial Oil has a policy requiring prospective job applicants to be eligible to work in Canada on a permanent basis (the “Policy”).

[4] Mr. Haseeb was an international student at the time of his application to Imperial Oil and did not meet that requirement. However, under the Post‑Graduation Work Permit program (“PGWP”), he was eligible to work anywhere in Canada for at least three years upon graduation. PGWP holders may apply for permanent resident status.

[5] Imperial Oil offered Mr. Haseeb a job but rescinded the offer when he was unable to provide proof of his eligibility to work here permanently. Mr. Haseeb then brought a claim against Imperial Oil to the HRTO, alleging discrimination on the basis of citizenship.

[6] The HRTO found that the Policy constituted discrimination contrary to s. 5(1) of the Human Rights Code, R.S.O. 1990, c. H.19 (the “Code”). It denied Imperial Oil’s request for reconsideration and ordered Imperial Oil to pay Mr. Haseeb for lost income, compensation for injury to dignity, feelings and self-respect, plus interest.

[7] Imperial Oil successfully brought a judicial review application to the Divisional Court. A majority of the Divisional Court held that the HRTO erred in concluding that the requirement that Mr. Haseeb be able to work permanently in Canada was discrimination on the basis of citizenship and quashed the HRTO decision. [1] In dissent, Sachs J. explained that she would have dismissed the application on the basis that the appropriate standard of review was reasonableness and the HRTO’s findings on the issues were reasonable.

[8] On November 10, 2021, Mr. Haseeb was granted leave to appeal the Divisional Court’s decision to this court on the following questions.

1. Did the Divisional Court majority err by not giving the required degree of deference to the HRTO under the reasonableness standard of review?
2. Did the Divisional Court majority err in concluding that there was no prima facie case of discrimination because of citizenship under s. 5(1) of the Code?
3. Did the Divisional Court majority err in failing to recognize and apply the human rights principle of partial discrimination?
4. Did the Divisional Court majority err in raising, without notice, a new issue concerning s. 11 of the Code and Imperial’s BFOR [2] defence which had been abandoned by Imperial Oil at the judicial review hearing, and thereby breach the rules of procedural fairness?
5. Did the Divisional Court majority err in deciding not to remit the matter back to the HRTO and thereby breach the rules of the procedural fairness?

[9] On April 8, 2022, SALCO and COP-COC filed materials for this Motion.

[10] The Motion is brought pursuant to Rule 13.03(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”). It was originally scheduled to be heard on April 14, 2022, but was adjourned to May 9, 2022, because the materials had not been filed seven days prior to the motion date as required by the Rules and to allow Imperial Oil to cross-examine the affiants.

[11] The appeal is scheduled to be heard on June 15, 2022.

The Applicable Legal Test

[12] When deciding motions for leave to intervene, as a friend of the court, pursuant to r. 13.03(1), the court will generally consider (1) the nature of the case and issues that are to be addressed, and (2) the likelihood the applicant will make a useful contribution to the resolution of the appeal without causing injustice to the immediate parties: Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada (1990), 74 O.R. (2d) 164 (C.A.), at p. 167 and Jones v. Tsige (2011), 106 O.R. (3d) 721 (C.A.), at para. 21.

Analysis

(1) The Nature of the Case and Issues to be addressed

[13] Imperial Oil submits that this appeal is purely a private dispute with unique facts and does not raise issues of public importance. I do not accept this submission.

[14] While this case arose from a private dispute between Mr. Haseeb and Imperial Oil, the questions raised on this appeal (set out above), show that the issues transcend the interests of the immediate parties. Those issues are of public importance, relating as they do to the interpretation of the Code, which is quasi‑constitutional legislation, [3] and whether policies requiring citizenship or permanent residency for prospective job applicants are discriminatory.

[15] If granted intervener status, SALCO and COP-COC confirmed at the oral hearing of this Motion that, together, they would provide assistance on the two matters set out in their notice of motion, dated April 8, 2022, at para. (m) and in their factum filed on this Motion at paras. 5 and 6: (1) the PGWP program and the pathway to permanent residency for international students and graduates in Canada, and (2) partial discrimination on the basis of citizenship in employment under the Code (the “Two Matters”). Neither is a new issue.

(2) It is Likely the Proposed Intervener will make a Useful Contribution without causing Injustice to the Immediate Parties

[16] In this case, there is no dispute that SALCO and COP-COC are well-recognized organizations with extensive experience. In my view, given their expertise and experience, they are well-positioned to make a useful contribution by bringing a broader and different perspective on the Two Matters. While I accept Imperial Oil’s submission that the record already contains detailed information on the PGWP program, the proposed intervener brings a distinct perspective that will likely assist this court when it grapples with the alleged mischaracterization of the rights of international students and graduates. The same holds true on the issue of partial discrimination.

[17] Imperial Oil is also concerned that granting the Motion may interfere with the appeal being heard as scheduled. At the oral hearing of this Motion, the HRTO provided information about why that hearing date may be in jeopardy, for reasons unrelated to this Motion. In any event, this possible prejudice can be addressed by establishing a tight framework for the submission of further materials.

[18] In my view, this concern is also somewhat mitigated because, although the proposed intervener did not provide a draft factum, it clearly set out the matters on which it would make submissions and its position on those matters, in its notice of motion and, more recently, in its factum on this Motion. Having said that, I reiterate the exhortation of this court in prior decisions that putative interveners include a draft factum in their motion materials, particularly when bringing intervention motions on short notice: see, for example, Foster v. West, 2021 ONCA 263, 55 R.F.L. (8th) 270, at para. 19. Providing a draft factum would have permitted the parties and this court to better understand the proposed intervener’s precise position and would have allowed for an immediate filing should the motion be granted.

Disposition

[19] For these reasons, I grant the Motion and order that:

a) SALCO and COP-COC together (the “Intervener”) are granted leave to intervene in this appeal as a friend of the court; b) The Intervener may file a factum of up to 15 pages in length, such factum to be filed and served no later than 7 days from the date of these reasons; c) Imperial Oil shall have a further 7 days in which to file and serve a factum responding to the Intervener’s factum, such factum not to exceed 15 pages in length; d) As confirmed at the oral hearing of this Motion, the Intervener shall not seek to file any evidence in the appeal and its submissions shall be limited to the Two Matters; e) The Intervener may make oral submissions at the hearing of the appeal to a maximum of 15 minutes in length; f) Imperial Oil’s time for oral submissions is extended by 10 minutes; and g) The Intervener shall not seek costs and shall not be liable for costs.

[20] I make no order as to costs of this Motion.

“E.E. Gillese J.A.”

Footnotes:

[1] Each of the two judges in the majority wrote separate reasons. [2] Bona fide occupational requirement. [3] See Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14, [2006] 1 S.C.R. 513, at para. 33.