CITATION: Imperial Oil Limited v. Haseeb , 2021 ONSC 3868

DIVISIONAL COURT FILE NO.: 528/19

DATE: 20210601

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Sachs, Lederer and Mew, JJ

BETWEEN:

IMPERIAL OIL LIMITED

Applicant

– and –

MUHAMMAD HASEEB and the HUMAN RIGHTS TRIBUNAL OF ONTARIO

Respondents

Richard Nixon and Duncan Burns-Shillington, for the Applicant

Toby Young, for the Respondent Muhammad Haseeb

Brian Blumenthal, for the Respondent HRTO

HEARD: February 25, 2021 (by video-conference)

LEDERER J.

Introduction

[1] This is a significant case. It asks for an understanding of the true boundaries of discrimination as defined by the Ontario Human Rights Code. The case concerns employment and the requirement of the employer that a prospective employee be eligible to work permanently in Canada. The employer says it wanted the assurance that, once trained, the employee would be able to stay with the company, hopefully for a long, successful and rewarding career. The employee could not give this assurance; he did not, at the time of his application, have the right to stay. He did not get the job. He argues, and the Human Rights Tribunal of Ontario (the HRTO) found, that this was discriminatory. It was discrimination based on the specified ground of “citizenship”. One can be permanently resident, and, hence, have an indefinite and unrestricted right to work, in Canada without being a citizen. Nonetheless, the HRTO found this to be “direct discrimination” that is to say “permanent residence” is intrinsically included within the ground of “citizenship”. This extends the ground in a way that is not justified and, as found by the HRTO, is not sustainable under the applicable standard of review.

Background

[2] Unlike many administrative tribunals in Ontario, members of the HRTO are not just deciding issues of a narrow concern to a single individual involving his or her:

• standing in a profession (discipline),

• grievance against an employer (labour arbitration),

• licence to work (real estate agent/broker, car salesperson, driving instructor etc.),

• permission to operate a particular business (restaurants and bars),

• ability to make particular use of property they own (land use planning),

or whatever other decisions are left to such bodies.

[3] Like those other tribunals, the HRTO resolves issues that can affect individual relationships but also broader concerns for the treatment, by government and others, of groups (some small, some large) of those who make up our society. The impact goes even further. In a time of quickly evolving social mores, the decisions of the HRTO determine the implementation of values that are basic to our society. They are not just legal decisions; they are decisions that speak to who we are as Canadians. They articulate what we, as Canadians, see as right and proper behaviour.

[4] This general societal concern for these issues is confirmed by the inclusion of specified and analogous grounds for discrimination in our constitution and the recognition that provincial human rights legislation, like the Ontario Human Rights Code is next to, or akin to, constitutional (“quasi-constitutional”)[^1]. This is demonstrative of the importance of this legislation and the adherence to human rights required of government, the courts and people.

[5] The legislature has authorized the members of the HRTO, in what is a constantly changing social environment, to identify, establish and define the parameters (the meaning) of these fundamental values for us. This is an important responsibility because (I return to where I began) they are deciding for us the substance of values fundamental to our society.

Facts

[6] Imperial Oil is a large Canadian based petrochemical company. Each year, Imperial Oil conducts information sessions at Canadian universities as part of a programme of recruitment of engineering graduates.

[7] Imperial Oil has had a policy, dating back to 2004 or earlier, to make job offers for entry level project engineer positions only to candidates who are eligible to work in Canada on a permanent basis.

[8] The respondent, Muhammad Haseeb was a student at McGill University completing his degree in mechanical engineering. He had an interest in the energy sector. He was not a Canadian citizen or permanent resident at the time. Rather, he held a visa as an international student. This permitted him to obtain a work permit for on-campus part-time work and for full-time work during regular breaks between academic terms. During his time as an engineering student at McGill, Muhmmad Haseeb served two or more internships, for which he obtained temporary social insurance numbers.

[9] Muhammad Haseeb had been told that Imperial Oil had a policy which prevented the hiring of foreign students for permanent positions, no matter what their qualifications. He believed that this policy was unfair and discriminatory. He decided to test the policy by applying to Imperial Oil as if he were not a foreign student.

[10] At all of the recruitment sessions, in all of his discussions with the recruiters, on all of the application forms for employment as a project engineer, and during his interviews, the requirement that the applicant for employment must be eligible to work permanently in Canada was clearly stated. Yet, in his application form in 2013, Muhammad Haseeb answered “yes” to the question on the application form “Are you entitled to work in Canada on a permanent basis?”.

[11] Imperial Oil states that it devotes a significant amount of time, money and energy investing in training, educating and developing the project engineers which it hires. Its policy of recruiting graduates who are permitted to work permanently in Canada is motivated by the loss of time, money and energy invested in a project engineer’s training, education and development that Imperial Oil would suffer if a project engineer, once hired, was subsequently forced to stop working for Imperial Oil because he or she was not legally eligible to remain in Canada.

[12] Upon graduation from McGill, Muhammad Haseeb was eligible to apply for a “postgraduate work permit” (PGWP) for a fixed term of three years. The PGWP would permit him to work full-time, anywhere, and with any employer in Canada. There was no known impediment to Muhammad Haseeb being granted a PGWP. It was a virtual certainty he would obtain one. But a PGWP does not entitle a holder to work in Canada on a permanent basis.

[13] Muhammad Haseeb also had a reasonable expectation that he would, in time, obtain permanent residence status. As a graduate from a Canadian university participating in a special immigration programme, involving the Federal and Ontario governments, Muhammad Haseeb would be permitted to apply, and be processed inland, for permanent resident status.

[14] Muhammad Haseeb was ranked first among the engineering graduates who applied to Imperial Oil for an entry level project engineer position. As a result, he was offered a job, subject to providing proof of his eligibility to work in Canada on a permanent basis. Because he was unable to do so, he asked Imperial Oil to make an exception. Imperial Oil refused, and rescinded its offer.

[15] Muhammad Haseeb claims discrimination on the basis of citizenship. Section 5(1) of the Ontario Human Rights Code[^2] provides:

5 (1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.

[Emphasis added]

[16] This is the claim that was upheld by the HRTO in its decision of 20 July 2018. Imperial Oil unsuccessfully applied for a reconsideration of that decision.[^3]

Standard of Review

[17] At present the standard of review applicable to the HRTO is a problematic concern. The Ontario Human Rights Code advises as to the applicable standard of review:

Subject to section 45.7 of this Act, section 21.1 of the Statutory Powers Procedure Act and the Tribunal rules, a decision of the Tribunal is final and not subject to appeal and shall not be altered or set aside in an application for judicial review or in any other proceeding unless the decision is patently unreasonable.[^4]

[Emphasis added]

[18] This is contrary to the direction provided by the heretofore seminal case of Dunsmuir v, New Brunswick which sought to simplify the issue of the standard of review. It reduced the available options from three to two: correctness and reasonableness. “Patent unreasonableness” was found to be unnecessary:

The current approach to judicial review involves three standards of review, which range from correctness, where no deference is shown, to patent unreasonableness, which is most deferential to the decision maker, the standard of reasonableness simpliciter lying, theoretically, in the middle. In our view, it is necessary to reconsider both the number and definitions of the various standards of review, and the analytical process employed to determine which standard applies in a given situation. We conclude that there ought to be two standards of review — correctness and reasonableness.[^5]

[19] The Supreme Court of Canada has provided further guidance in the more recent case of Canada (Minister of Citizenship and Immigration) v. Vavilov.[^6] Having determined that reasonableness is the presumptive standard of review, Vavilov held:

…that the presumption of reasonableness review can be rebutted “where the legislature explicitly provides the applicable standard of review.”[^7]

[20] Here and elsewhere the HRTO has sought to rely on this statement to revive patent unreasonableness as the standard of review that should apply to it. This has been dealt with and rejected by this Court:

Nowhere in Vavilov does the Court identify the merger of the reasonableness and patent unreasonableness standards as being one of the features of Dunsmuir that it is seeking to revise. Furthermore, to reintroduce the distinction would be contrary to the Court’s stated purpose in Vavilov – to clarify and simplify the law of judicial review. Reintroducing what the Court has already called a “meaningless” distinction that caused confusion would run counter to this aim.[^8]

[21] The issue of the impact of Vavilov on the standard of review as it applies to the HRTO has not, as yet, been considered by the Court of Appeal.[^9] What is clear is that the standard to be applied is one of deference. For the purpose of these reasons, whether it is “reasonableness” or “patently unreasonable” does not matter. The direction found in Vavilov applies. Both “reasonableness” or “patently unreasonable” signify deference:

Reasonableness review is an approach meant to ensure that courts intervene in administrative matters only where it is truly necessary to do so in order to safeguard the legality, rationality and fairness of the administrative process. It finds its starting point in the principle of judicial restraint and demonstrates a respect for the distinct role of administrative decision makers.[^10]

[22] That is not to say that decision makers like the HRTO are not to be accountable:

However, it is not a “rubber-stamping” process or a means of sheltering administrative decision makers from accountability. It remains a robust form of review.[^11]

[23] Reasons are at the core of this form of analysis:

The starting point for our analysis is therefore that where reasons are required, they are the primary mechanism by which administrative decision makers show that their decisions are reasonable — both to the affected parties and to the reviewing courts. It follows that the provision of reasons for an administrative decision may have implications for its legitimacy, including in terms both of whether it is procedurally fair and of whether it is substantively reasonable.[^12]

[A] reasonable decision is one that is based on an internally coherent and rational chain of analysis...[^13]

It is not enough for the outcome of a decision to be justifiable. Where reasons for decision are required, the decision must also be justified...[^14]

[24] In summary Vavilov instructs that:

In conducting a reasonableness review, a court must consider the outcome of the administrative decision in light of its underlying rationale in order to ensure that the decision as a whole is transparent, intelligible and justified.[^15]

[25] The legislature and the caselaw direct that any review of a decision of the HRTO must follow these principles. The broad impact of decisions made by the HRTO and the recognition that they reflect the fundamental values of our society, require that they be clear and precise in the analysis they present. Most importantly for the purpose of these reasons, it is not for a reviewing court to step around a lack of clarity or precision to fill in any gaps necessary to complete the required rational chain of analysis:

Where, even if the reasons given by an administrative decision maker for a decision are read with sensitivity to the institutional setting and in light of the record, they contain a fundamental gap or reveal that the decision is based on an unreasonable chain of analysis, it is not ordinarily appropriate for the reviewing court to fashion its own reasons in order to buttress the administrative decision. Even if the outcome of the decision could be reasonable under different circumstances, it is not open to a reviewing court to disregard the flawed basis for a decision and substitute its own justification for the outcome: Delta Air Lines, at paras. 26-28. To allow a reviewing court to do so would be to allow an administrative decision maker to abdicate its responsibility to justify to the affected party, in a manner that is transparent and intelligible, the basis on which it arrived at a particular conclusion. This would also amount to adopting an approach to reasonableness review focused solely on the outcome of a decision, to the exclusion of the rationale for that decision.[^16]

[26] Any review made by this court needs to ensure that this clarity and precision are part of any decision released by the HRTO. Was it?

Discrimination

[27] To discriminate is to distinguish between. In a legal context discrimination, as provided for in the Ontario Human Rights Code, is the act of distinguishing between people. We all discriminate. We do it whenever we treat two people, in similar circumstances, differently. To be illegal, that is contrary to the Ontario Human Rights Code, the different treatment, must be founded in one of the “grounds” listed in the Code. To distinguish between people on some basis, not referred to in the Ontario Human Rights Code does not breach the Code and is not discrimination contrary to the Code.

[28] Fundamental to any inquiry made by the HRTO is its determination that the impugned conduct makes a distinction founded on one of the specified “grounds”. In most cases, this is not a complicated question. In this case, it is difficult, and the finding made by the HRTO open to question.

[29] Discrimination can come in two forms:

It may be “direct” which is to say founded directly in the ground alleged to have been breached. The refusal of an employer to hire a man because he is a Catholic is direct discrimination. He is refused employment because of his religion, a ground referred to on the Ontario Human Rights Code.

Discrimination may be indirect (incidental). The failure of an employer to hire a man because he has a beard does not, on its face, offend any ground referred to in the Code. However, such a distinction means that Sikhs (whose religion requires a beard) are denied that employment and, like the Catholic, they are discriminated against on the basis of religion.

[30] The difference is important. In the first case all those implicated share the characteristic that is the source of the impugned treatment. They are all Catholics. Not all bearded men are Sikhs.

Discrimination as found in this Case

[31] The prohibited ground on which the finding of discrimination was based was “citizenship”. The asserted attribute of citizenship relied on was the failure of Muhammad Haseeb to be, or have the authorization to be, permanently resident in Canada. Citizens have the right to be permanent residents of Canada but you do not need to be a citizen to be a permanent resident. The government of Canada issues “Certificates of Permanent Residence”.

[32] The HRTO found that it was “direct discrimination [that] resulted from [Imperial Oil’s] ‘permanence’ requirement”.[^17] In other words, it did not treat this as a situation where the requirement for “permanent residence” incidentally discriminated on the basis of citizenship. Rather it assumed that the Ontario Human Rights Code, under the ambit of “citizenship” directly protects against discrimination founded on “permanent residence.”

IO’s policy on its face distinguished between candidates based on the permanence requirement. It operated as a complete bar to any job candidate for the Project Engineer position who was not “eligible to work permanently in Canada”. In the Tribunal’s view, this was not a policy that was “neutral” on its face that had an indirect or disparate effect on a group of persons identified by a prohibited ground....[^18]

…the Tribunal has found above that IO engaged in direct discrimination with a requirement that can be boiled down to: “IO does not employ new graduates who are international students with PGWP for entry level Project Engineer positions”[^19]

[33] This determination makes “permanent residence” a separate foundation for discrimination albeit included in the understanding of “citizenship” as that term is used in the Ontario Human Rights Code. Under the Charter of Rights and Freedoms s.15, it would be, or could be an analogous ground of discrimination. This concept is not recognized as applying to the Code.

[34] The HRTO understood that citizenship, as a ground for discrimination found in the Ontario Human Rights Code, is not defined.[^20] This is not surprising. In the plain and ordinary meaning of the word, whether an individual is a citizen of Canada can be objectively determined. Either you are or you are not. “Permanent residence” is a right or privilege that comes with citizenship. It is not, in itself, immutable.[^21] You can be a Canadian citizen and live here today and move tomorrow. Certainly, it is possible to imagine a circumstance where a requirement for permanent residence is so narrowly prescribed that it manifests as a requirement for citizenship but that would be indirect or constructive discrimination. As the subject of direct discrimination (the finding made by the HRTO), permanent residence (described as coming within citizenship) becomes a separate ground on which discrimination can be alleged by an individual. It expands the meaning of citizenship as a ground of discrimination. In this case, if it had been judged as indirect or constructive discrimination, there would have been a need to demonstrate that the discriminatory conduct (the permanent residence requirement) affected or had the potential to have a different (disparate) impact on a group of non-citizens (international students), at least in part, because they were non-citizens. A possible foundation for the presence or absence of this kind of impact would lie in statistics showing whether, if or how many non-citizens had been or were working for Imperial Oil in similar jobs and the impact on them. It is because it has found this situation to be demonstrative of direct discrimination (that permanent residence is either analogous to, subsumed by or the same as citizenship) that the HRTO determined that such statistics “were not required”.[^22] As it is, in the absence of these statistics the supposed breach of the Code, directed at a class of people (international students), is being judged against the experience of a single person. Does it stand up?

[35] I do not believe so.

[36] In its Interim Decision the HRTO referred to what happened to the position that had been offered to Muhammad Haseeb but was rescinded (or expired). There were five candidates recommended for hire but only four positions available. With the withdrawal of the offer to Muhammad Haseeb an offer was extended to the fifth candidate. This candidate was not a citizen and was not a permanent resident in Canada. He had advised the company that he had a graduate work permit but, even so, based on the evidence before the HRTO at the time of its Interim Decision, a conditional offer was said to have been made.[^23] This is, in effect, what Muhammad Haseeb asked for when he acknowledged that he was not a permanent resident in Canada but was denied.

[37] The company submitted that the reason the offer was withdrawn was that Muhammad Haseeb did not tell the truth when asked whether he was a permanent resident of Canada. The HRTO did not accept this explanation. None of the documents, internal to Imperial Oil confirm this as the reason to rescind. They all speak to the absence of permanent residence. For the purposes of the concern that I seek to express, I say nothing with respect to the failure of Mohammed Haseeb to tell the truth except to repeat what is, by now, trite. To be a breach of the Ontario Human Rights Code discrimination need not be the only, or even the primary reason for the impugned act. It just needs to be a reason. My concern is more fundamental. Does the decision to accept “permanent residence” as included in “citizenship” as a ground for discrimination satisfy the applicable standard of review? Was the determination to treat “permanent residence” as subsumed into “citizenship” as a ground of discrimination, the subject of reasons that were “internally coherent” and demonstrative of “a rational chain of analysis”? Does this finding demonstrate the decision “as a whole” to be “transparent, intelligible and justified”?

[38] Before going on I should refer to the Remedy Award. It makes the point, that when remedy was placed before the HRTO, Imperial Oil “confirmed” that while the company considered making a conditional offer to the remaining candidate, understanding that he was not a permanent resident (he had only a post-graduate work permit), no such offer was ever made.[^24] When counsel was asked to explain this apparent change, no one was able to do so. No explanation was provided as to why the offer, having been considered, was not made. The fact remains that, at the time the finding of direct discrimination was made, the evidence before the HRTO was that the individual who received the offer in place of Muhammad Haseeb was not a citizen and not a permanent resident. It is noteworthy that the Adjudicator (the member of the HRTO) who considered remedy was not the same as the one who made the Interim Decision (liability).

The rationale for the finding of discrimination

[39] I turn now to the rationale for the treatment by the HRTO of “permanent residence” as if it was “citizenship”. In considering whether Muhammad Haseeb had standing to challenge the hiring practices of Imperial Oil, the HRTO undertook “a plain reading” of s. 5(1) of the Ontario Human Rights Code and in particular the words “every person has a right to equal treatment…” and whether there were any qualifications to that plain reading.[^25] There is no discussion of the “plain and ordinary meaning” of “citizenship” removed from any special or particular usage it may have for the purposes of the Ontario Human Rights Code. Rather there is an underlying presumption that there is a special meaning. In the absence of any consideration of citizenship as it is ordinarily understood, there is no consideration of the prospect that “permanent residence” is not included in a consideration of what “citizenship” is as an immutable characteristic and that “permanent residence” has a meaning and standing of its own that exists beyond, outside of, separate from and independent of citizenship.

[40] In its plain and ordinary meaning “citizenship” is nothing less or more than membership in the state. The Citizenship Act says as much:

citizenship means Canadian citizenship.[^26]

[41] “Permanent residence” in its plain and ordinary meaning is something different from and independent of “citizenship”. Citizenship (membership in the Canadian state) is one way in which an individual obtains the right to be permanently resident in Canada. Permanent residence is not synonymous with citizenship. It can stand on its own. An individual can have the right to permanent residence without being a citizen. The Immigration and Refugee Protection Act provides for a status that allows an individual to be permanently resident without being a citizen:

permanent resident means a person who has acquired permanent resident status and has not subsequently lost that status under section 46[^27]

[42] Pursuant to s. 46(1)(a) of the Immigration and Refugee Protection Act, a person who becomes a citizen “loses permanent resident status” but that does not change the fact that you can have the right to reside here permanently without being a citizen. It means only that the authorization for permanent residence changes if you become a citizen.

[43] To my mind the distinction between “permanent residence” as a separate ground for discrimination, incorporated into citizenship, as opposed to being a benefit that comes with citizenship, but is otherwise available, is demonstrated by the following hypothetical. If a Canadian citizen resident in Detroit (just over the Canadian border) was refused employment by Imperial Oil in Windsor, because he or she was not permanently resident in Canada would he or she be able to claim discrimination based on “citizenship”. Presumably not. This points out that “permanent residence” is not a ground for discrimination fully encompassed within “citizenship”. It has an independent and separate standing. Again, it could be circumscribed such that it is the source of “indirect” or “constructive discrimination” but cannot stand on its own as “direct discrimination”. In short, permanent residence is not a ground of discrimination and there is nothing in the plain and ordinary meaning of the applicable words that would make it so.

[44] There is nothing in the decision of the HRTO that considers the plain and ordinary meaning of “citizenship”. Having acknowledged that it is not defined in the Ontario Human Rights Code the HRTO begins its consideration of “Citizenship” with the following two paragraphs:

In this Application, the issue concerns post-graduate work permit holders (international students or PGWP), permanent residents and citizens and their respective eligibility to work indefinitely as opposed to temporarily for a fixed-term with IO. It is generally understood that citizens and all permanent residents who maintain certain residency requirements prescribed by law are eligible to work on a permanent basis while visitors, international students, Convention refugees, temporary or migrant workers and other categories of persons who do not have the right to remain in Canada permanently, have limited or no eligibility to work in Canada. For clarity, only citizens and permanent residents have an unrestricted right to work for any employer, anywhere and permanently (indefinitely).

IO’s policy clearly conferred an advantage on Canadian citizens and permanent residents as it required that job candidates be able to work permanently in Canada starting on their first day at work. While persons with temporary work permits were not barred entirely from hire, IO reserved for itself the discretion to decline hiring candidates who were qualified but did not possess citizenship or permanent residency status. On those occasions when IO waived its policy, IO gave employees offers that were conditional on them obtaining permanent residence in a fixed period of three years or less.[^28]

[Emphasis added]

[45] These paragraphs demonstrate the HRTO understood “citizenship” and “permanent resident” to be separate considerations. The HRTO recognized that “permanent residence” was not “citizenship”; it identified “permanent residence” as a “a second criterion”:

For further clarity, the addition of “permanent residence” as a second criterion does not transform the analysis to one concerning “immigration status”.[^29]

[46] The first criterion is Canadian citizenship. The second and separate criterion is permanent residence. The HRTO treats the second as incorporated into the first. It acknowledges that this is novel:

It appears that the applicant’s [Muhammad Haseeb’s] issue is somewhat novel to HRTO as earlier cases involving a claim of “citizenship” were ultimately decided without resort to a detailed analysis of this ground in the Code and its relationship to various subgroups of non-citizens.[^30]

but finds this to be immaterial:

In the Tribunal’s view, the fact that Canadian citizenship is invoked by IO as a requirement governs the Code analysis; it is immaterial that it is not the only requirement.[^31]

[47] How can it not be material? In its ordinary meaning “permanent residence” is separate from and extends beyond citizenship. To include it as subsumed by the citizenship as a ground of discrimination is to add substance to the ground it would not otherwise have.

[48] Consider a second hypothetical. Suppose that an American citizen, living in Detroit, is refused employment by Imperial Oil in Windsor because he or she is not permanently resident in Canada. If “permanent residence” stands as a separate criterion for discrimination under the ground of citizenship why would there not be substance to a complaint of discrimination founded on “permanent residence”?

[49] In dealing with this issue the HRTO “found it useful” to look for other provisions in the Ontario Human Right Code that referred to “citizenship”.[^32] In particular it referred to section 16, which states:

16 (1) A right under Part I to non-discrimination because of citizenship is not infringed where Canadian citizenship is a requirement, qualification or consideration imposed or authorized by law.

(2) A right under Part I to non-discrimination because of citizenship is not infringed where Canadian citizenship or lawful admission to Canada for permanent residence is a requirement, qualification or consideration adopted for the purpose of fostering and developing participation in cultural, educational, trade union or athletic activities by Canadian citizens or persons lawfully admitted to Canada for permanent residence.

(3) A right under Part I to non-discrimination because of citizenship is not infringed where Canadian citizenship or domicile in Canada with the intention to obtain Canadian citizenship is a requirement, qualification or consideration adopted by an organization or enterprise for the holder of chief or senior executive positions.

[Emphasis added]

[50] As the HRTO saw it, this section provides that, in certain situations, hiring preference for “Canadian citizens” and “permanent residents” is not discriminatory. To the HRTO this means that “conversely”, in the absence of a defence under this section, it is open to the HRTO to “find that preferential hire on the basis of Canadian citizenship and permanent residence status amounts to discrimination under the Code.” [Emphasis added][^33].

[51] I return to the beginning of this analysis. The definition of the specified “grounds” of discrimination is fundamental to the proper application of the Ontario Human Rights Code. The finding made has the effect of extending the ground of “citizenship”. Following the direction in Vavilov is this understanding of section 16 part of a coherent and rational chain of analysis leading to such a finding?

[52] I do not believe it is.

[53] Section 16(1) is the clause on which Imperial Oil sought to rely. It refers to “citizenship”. It does not mention or allude to “permanent residence.”

[54] Section 16(3), also does not mention “permanent residence”. It does refer to “domicile”. As a matter of statutory interpretation, one has to wonder at the use of the word “domicile”. Different words are, generally, taken to have different meanings. Is it possible that “domicile” was intended to be distinguished from “being resident”? Where the employment is “for a chief of executive position” a qualification of “citizenship” does not breach the Code where the person intends to become a citizen. It permits the individual to come here and take the job in advance of being granted citizenship but with the expectation that it will come in the future. The word “permanent” does not appear. This deals with “citizenship’ without the inclusion of the “second criterion”. The HRTO noted this section is not applicable to this case.[^34]

[55] Section 16 (2) does refer to “permanent residence” but in a very particular way related to a very particular purpose. It speaks of “lawful admission to Canada for permanent residence”. Instead of senior executives, this is designed to encourage those who will participate in developing the listed activities to come to Canada and be able to do so without becoming Canadian citizens. If the qualification for employment deals only with “permanent residence” it will not offend the Ontario Human Rights Code; however, if the qualification is sufficiently circumscribed that it could lead to indirect or constructive discrimination the protection (the defence) offered by section 16(2) will be effective. What the section does not do, on its own, is allow for the HRTO to extend the ground of citizenship to include permanent residence such that it can be the subject of “direct discrimination.”

[56] It may be, as the HRTO suggested, that in s. 16 the legislature “associated ‘domicile in Canada’, [and] ‘permanent residence’ with the concept of ‘Canadian citizenship’”.[^35] But if it does, it is for a limited purpose associated only with the defences raised by ss 16(2) and (3):

The better interpretation of the significance of the inclusion of additional categories in ss. 16(2) and (3) is that these defences apply only if the respondent has given the consideration to both citizens and either permanent residents (s. 16(2)) or persons living in Canada and intending to obtain citizenship (s. 16(3)). In other words, the Legislature’s intention was that individuals in these categories be treated the same as citizens for the purpose of the exemptions in ss.16(2) and (3).[^36]

[57] In this statement the HRTO recognized that in the very particular circumstances reflected in ss. 16(2) and (3), that is to say in connection with the defences they introduce, individuals with two distinct and different statuses are to be treated the same. “Association” does not perceive the incorporation of one (permanent residence) into the other for the purpose of supporting allegations of discrimination. This is confirmed by the fact that this association is not raised in respect of the first of the three defences as expressed in section 16(1).

[58] The failure to examine the plain and ordinary meaning of “citizenship” and “permanent residence” is a gap in the analysis undertaken by the HRTO. It leads to the finding, through reliance on section 16, to the inclusion of “permanent residence” as a distinct and separate ground that can be the subject of direct discrimination. The use of the words of the Ontario Human Rights Code to find that “permanent residence” is a separate foundation for a claim to discrimination under the ground of citizenship is not based on the substantive, coherent and complete chain of analysis required by Vavilov.

[59] Is there anything further on which the HRTO relied to find that “permanent residence” is incorporated into “citizenship” and stands under its auspices as a ground of discrimination. The HRTO refers to caselaw, in particular Washington v. Student Federation of the University of Ottawa[^37]:

Washington provides this Tribunal with a precedent that use of “Canadian citizenship” as a criterion for eligibility, although not the sole criterion is sufficient to support a finding of discrimination based on citizenship.[^38]

[60] The case does nothing of substance to provide a rationale behind the extension of “citizenship” as a ground for discrimination to include “permanent residence” as a “second criterion.” The case concerned student elections at the University of Ottawa. The applicant attempted to run in a succession of elections. The allegation was of discrimination on the basis of “colour, ethnic origin, place of origin and race in the context of employment.”[^39] Much of the case concerns the precondition that candidates be bilingual. The parties agreed that bilingualism (French and English) was a bona fide occupational requirement for the office of president.[^40] The consideration of the actions taken by, or on behalf of the respondent (the Student Federation of the University of Ottawa), was decided based on credibility findings which, generally, favoured the Student Federation.

[61] Having said this, there was “a citizenship and permanent resident requirement”[^41] but it had no bearing on the case. The applicant was a permanent resident of Canada.[^42] Moreover, while the complaint of the applicant covered elections that took place from 2003 to 2007, the “citizenship and residency requirement” was removed prior to the 2005 elections.[^43] The issue was not the status of the applicant in Canada, but rather his ability to provide documents to the elections officers to establish that status.[^44] The applicant complained because the documents he provided were not, at first, accepted and he was required to present them to a second official (the Chief Electoral Officer). The HRTO accepted this “additional administrative step” as reasonable in the circumstances.[^45] It found that the respondent did not discriminate against the applicant pursuant to the Code.[^46]

[62] This is the context in which the HRTO made, what I believe should be understood to be the obiter dicta statement that:

In my view, the SFUO’s requirement that candidates for election in 2004 be Canadian citizens or permanent residents was in violation of the Code. It operated to disqualify candidates based on their citizenship, a prohibited ground at both section 1 and section 5 of the Code.[^47]

[63] Whether it is accepted as obiter or not, it stands as an unsupported conclusion. There is nothing that explains the rationale behind it or any understanding of the role “permanent residence” could play as a foundation of a finding of discrimination attributable to the ground of “citizenship.”

[64] In its review of “citizenship”, the HRTO referred to a second case: Toussaint v Ontario (Health and Long-Term Care).^48 The applicant was ineligible for benefits offered by the Ontario Health Insurance Plan. She had come to Canada as a visitor and stayed after that status expired. She had applied for permanent residence under the Immigration and Refugee Protection Act. Her application was not accepted. She could not afford the fee. She challenged the fee and the denial of health coverage under the Interim Federal Health Program. At the time of the hearing before the HRTO those matters were ongoing before the Federal Court of Appeal. She applied for OHIP coverage but was denied. She had no legal status in Canada and, on that basis, was not eligible for OHIP.

[65] The applicant filed an application alleging that the denial of OHIP coverage constituted discrimination in services on the basis of citizenship and place of origin.[^49] Her argument was that in treating her differently from another non-citizen who, like her, wished to stay in Canada, the government was discriminating against her on the basis of citizenship. She took the position that the ground of citizenship includes discrimination between any subcategories of non-citizens, including between non-citizens with legal status in Canada and those without. She proposed that as a sub-group of non-citizens, persons without legal status in Canada are protected by the ground of citizenship, just as refugee claimants were protected.[^50]

[66] The HRTO did not decide the issue. It did not need to. It assumed citizenship applied. It found that, if it did, s. 16(1) of the Ontario Human Rights Code proved a complete defence.[^51] As the HRTO noted in the decision subject to this review Toussaint is not helpful in this case because the defence found in section 16(1) was so obviously available.[^52] It does nothing to advance the idea that “permanent residence” is included as a second substantive foundation for a claim of direct discrimination founded on the ground of “citizenship”.

[67] I return to where I began. The HRTO is mandated to define basic values and set the boundaries of acceptable behaviours that are fundamental to our society. It needs to ensure that an allegation of discrimination meets the parameters set by the Ontario Human Rights Code. Those decisions must be reasonable as that term is defined by Vavilov. That is particularly so where, as here, the decision touches on matters that are new (novel).

[68] The issue raised in this case has not been canvassed before and was not fully or appropriately canvassed in this case. The absence of any consideration of the plain and ordinary meaning of the words, the reliance on particular and limited defences and the reference to and, with respect to Washington, the reliance on cases which do not provide any analysis that justifies the novel proposition being made is not enough to meet the standard of review set by Vavilov. There is not enough on which to base a finding that “citizenship” as a ground of discrimination includes as a second and separate criterion, “permanent residence”, the breach of which can sustain a claim of direct discrimination. The analysis undertaken does not represent an internally coherent and rational chain of analysis that can be followed and understood as justifying this finding. The foundation for the finding is not transparent or intelligible.

[69] There is little, if any, substantive explanation or justification for the acceptance of what becomes, in essence, a further ground for discrimination. There could be policy implications that are not accounted for and require consideration of the legislature. I say this in furtherance of indicating that, as I see it, this would offend the standard of review of “patent unreasonableness” should it apply.

[70] Any attempt by the court to examine whether the requirement of “permanent residence”, is sufficiently circumscribed such that it would, on the facts of this case, support a finding of “indirect” or “constructive” discrimination would represent an effort to justify the result, after the fact. It would, if a finding of discrimination was made, raise the prospect that the determination made by the HRTO was “justifiable”. It would not show it to have been “justified” by the decision of the HRTO and would not comply with the direction in Vavilov.

[71] I raise one further point. It was submitted by Imperial Oil that there was another way to understand the distinction between “citizenship” and “permanent residence”: one is an immutable status, recognized by the Ontario Human Rights Code as a ground of discrimination; the other is a mutable immigration status not subject to intrinsic standing as a ground of discrimination. In the course of its submissions to this court, Imperial Oil argued that this distinction was recognized in Irshad (Litigation Guardian of) v. Ontario (Minister of Health) (2001), a decision of the Ontario Court of Appeal.[^53] That case dealt with a circumstance where in the face of increasing health care costs, the Ontario government passed legislation limiting those to whom coverage was extended. It narrowed the definition of “resident” such that temporary residents were excluded. To qualify a person had to be “ordinarily resident” in Ontario. This was a term defined by the applicable regulation. Beyond that, those who were ordinarily resident in Ontario had to demonstrate they were included in one of eleven categories set out in the regulation. This demonstrated a distinction between those persons who are ordinarily resident in Ontario and whose status under federal immigration law was such that they were entitled or would shortly be entitled to be permanent residents of Ontario, and those persons who are ordinarily resident in Ontario but who, by virtue of their immigration status, were not entitled to become permanent residents in Ontario.[^54] The requirement that persons who are ordinarily resident in Ontario have an immigration status that permits them or will shortly permit them to remain permanently in Canada was a logical corollary to the requirement that a person intend to make his or her permanent home in Ontario. The categories as set out in the regulation did no more than require that persons who intended to make their permanent home in Ontario have the legal status that permits them to legitimately hold that intention.[^55] The Court of Appeal found that a person’s status as a non-permanent resident for the purposes of OHIP eligibility is not immutable.[^56] Immigration status can determine a person’s right to take up permanent residence in a province.[^57] The Court of Appeal held that a person’s status as a permanent or non-permanent resident of a province is not a ground enumerated in s. 15 of the Charter of Rights and Freedoms or an analogous ground.[^58] The distinction between permanent and non-permanent residents was not, therefore, discriminatory within the meaning of s. 15.

[72] Imperial Oil submitted this distinction should apply in this case:

…the HRTO’s Interim Decision was unreasonable because the HRTO conflated the prohibited ground of citizenship under the Code with immigration status. A person’s citizenship is not the same as a person’s immigration status as a non-Canadian citizen. Citizenship is an immutable characteristic and is a prohibited ground of discrimination in employment under Section 5(1) of the Code. In contrast, immigration status is a mutable characteristic and is not a prohibited ground of discrimination in employment under Section 5(1) of the Code...[^59]

[73] In its Interim decision the HRTO did not refer to Irshad but made short shrift of the submission:

The fact that IO’s requirement distinguished on the basis of “Canadian citizenship” and “permanent residence” does not morph the distinction to one based on “immigration status”.[^60]

[74] But on what basis is the proposition dismissed? It relies on nothing more than the finding that “permanent residence” is a second criterion under the ground of “citizenship”:

For further clarity, the addition of “permanent residence” as a second criterion does not transform the analysis to one concerning “immigration status”[^61]

[75] In other words, it does not further the argument that “permanent residence” has separate standing as a foundation for discrimination within “citizenship”; it relies on it. The absence of a substantive rationale for rejecting this distinction is further indication that the reasons of the HRTO do not satisfy what Vavilov requires.

Conclusion

[76] In the absence of a proper justification there is no basis for treating permanent residence as incorporated as a separate foundation for a finding of direct discrimination attached to the ground of “citizenship. This being so there can be no finding of direct discrimination based on a requirement that an employee be permanently resident. Permanent residence is not a ground identified in the Ontario Human Rights Code. On this basis there can be no prima facie case demonstrating direct discrimination founded on a requirement that an employee be permanently resident in Canada.

[77] The application for judicial review is granted and the decision of the HRTO quashed.

[78] In Vavilov the Supreme Court of Canada held that “where a decision reviewed by applying the reasonableness standard cannot be upheld, it will most often be appropriate to remit the matter to the decision maker to have it reconsider the decision, this time with the benefit of the court’s reasons”.[^62] As the quotation suggests, this is not always the case. In Vavilov the Court continued on and noted: “[d]eclining to remit a matter to the decision maker may be appropriate where it becomes evident to the court, in the course of its review, that a particular outcome is inevitable and that remitting the case would therefore serve no useful purpose.”[^63] Based on these reasons there can be no finding of direct discrimination based on “permanent residence”. There is no suggestion that the facts could support a finding of “indirect” or “constructive” discrimination and no evidence that would support such a finding. This being so it is inevitable that a claim of discrimination based on “citizenship” cannot succeed. There is no purpose in returning this to the HRTO.

Costs

[79] As agreed to by the parties, costs to be paid by the respondent, Muhammad Haseeb to Imperial Oil in the amount of $15,000. No costs were sought from, or by, the HRTO.

Lederer, J.

MEW J. (concurring with Lederer J.)

[80] I have had the opportunity to review the reasons as drafted by both my colleagues, Lederer J. and Sachs J. With due respect for the thoughtful analysis of what “citizenship” means for the purposes of s. 5(1) of the Code by the HRTO and Sachs J., I cannot accept that the requirement that Mr. Haseeb be able to work permanently in Canada was discrimination on the basis of citizenship.

[81] The suggestion that discrimination on the basis of “non-citizenship” (in this case because a subset of non-citizens, namely permanent residents, were eligible for the jobs being offered by Imperial Oil, whereas other non-citizens were not), is coterminous with discrimination on the basis of citizenship, stretches the requirement to afford the Code a broad, liberal and purposive interpretation consistent with its remedial objectives, beyond its breaking point.

[82] The unforeseen consequences of the HRTO’s interpretation and application of section 5 can be seen in the example postulated by my colleague Lederer J. of an American citizen, living in Detroit, who is refused employment by Imperial Oil in Windsor because he or she is not a permanent resident of Canada. Why, he asks, would there not be substance to a complaint by that person of discrimination founded on “permanent residence” (or non-citizenship) in such circumstances (even though that person may have no entitlement to work in Canada)? Taken to its logical extreme, anyone denied employment because he or she is not eligible to work permanently in Canada could (in the absence of a bona fide occupational requirement (“BFOR”) defence) claim discrimination on the basis of citizenship.

[83] In Mr. Haseeb’s case, the record suggests that he could confidently predict being able to obtain a PGWP following his graduation from McGill. Once possessed of a PGWP, he could fast-track an application for permanent residence. Indeed, that is what transpired. Once he had gained that status, he could have honestly answered Imperial Oil’s question about being able to work permanently in Canada.

[84] Would Mr. Haseeb have the same complaint if, for whatever reason, he was not able to obtain a PGWP? Or would it have been prima facie discrimination on the basis of citizenship if, instead of requiring authorisation to work permanently in Canada, Imperial Oil specified that applicants needed to have the ability to work permanently or to already be the holder of a PGWP (something which Mr. Haseeb was not in possession of at the time of his application)?

[85] If a Canadian employer is going to make a substantial investment in a professional employee who will be trained, nurtured and developed in the years following employment, it is reasonable to require the prospective employee to have a permanent and unrestricted right to accept and maintain employment in Canada. To be sure, Canadian citizens are among those who have a permanent and unrestricted right to work in Canada. But if it was the intention of the Legislature to brand such a policy as discrimination based on citizenship, it would have used terminology (as it did in section 16(2)) to expand that term beyond its plain and ordinary meaning.

[86] Accordingly, I join Lederer J. in finding that the application for judicial review be granted and the decision of the HRTO quashed and not remitted back to the HRTO

Mew J.

H. Sachs J. (dissenting)

Overview

[87] The Respondent, Mr. Haseeb, was an international student on a study permit in his final semester of mechanical engineering at McGill University, when he applied for an entry level engineering position at Imperial Oil Limited. At the time of his application there was no issue that he would be eligible to work anywhere in Canada for at least three years upon graduation from McGill. Mr. Haseeb was also eligible to be processed for permanent resident status from within Canada. However, Imperial Oil required throughout the job competition process that Mr. Haseeb be a Canadian citizen or a permanent resident. Mr. Haseeb, fearful that he would be screened out of the competition, lied and told Imperial Oil that he was eligible to work permanently in Canada. He was the top-rated candidate in his group. Imperial Oil offered him a job conditional on him being able to satisfy it that he was either a Canadian citizen or a permanent resident. Mr. Haseeb advised Imperial Oil that he could not do so and asked Imperial Oil to make an exception. Imperial Oil refused and rescinded its offer.

[88] Mr. Haseeb filed an application with the Human Rights Tribunal of Ontario (“HRTO”) claiming discrimination on the basis of citizenship. On July 20, 2018, the HRTO issued a decision in which it found that Mr. Haseeb had been discriminated against on the basis of citizenship (the “Liability Decision”). Imperial Oil applied for a reconsideration of the Liability Decision and on February 14, 2019, the HRTO issued a decision denying that request (the “Reconsideration Decision”). The HRTO held a hearing to decide the appropriate remedy. On August 23, 2019, the HRTO issued a decision awarding Mr. Haseeb a total of $120, 360.70 in damages for lost income, injury to dignity, feelings and self-respect, and prejudgment interest (the “Remedy Decision”).

[89] Imperial Oil filed this application seeking to judicially review all three decisions. However, at the hearing of this matter, Imperial Oil made it clear that the focus of its application was on the Liability Decision. Imperial Oil challenged three aspects of the Liability Decision: (1) the HRTO’s rejection of Imperial’s position that the sole reason that Mr. Haseeb was not hired by Imperial Oil was because he lied (and that the impugned requirement played no part in its decision); (2) the HRTO’s finding that Imperial Oil’s requirement for proof of Canadian citizenship or permanent resident status was discrimination on the basis of citizenship; and (3) the HRTO’s rejection of Imperial Oil’s defence on the basis of s. 16(1) of the Human Rights Code, R.S.O. 1990, c. H.19 (the “Code”). Section 16(1) of the Code provides that an allegation of discrimination on the basis of citizenship may be defended if the requirement was imposed or authorized by law.

[90] Imperial Oil did not challenge the following aspects of the Liability Decision: (1) the HRTO’s finding that Mr. Haseeb had standing to bring his application under the Code and (2) the HRTO’s finding that Imperial Oil had not established that its hiring policy was a bona fide occupational requirement (the “BFOR defence”) because of Imperial’s heavy investments in new workers aimed at developing lifelong corporate employees.

[91] The HRTO appeared and made submissions that the standard of review that this court should apply to the review of the HRTO’s decisions was patent unreasonableness.

[92] For the reasons that follow I would dismiss the application on the basis that the appropriate standard of review is reasonableness and that the HRTO’s findings with respect to all three issues raised by the Applicant were reasonable.

[93] With respect to the lying issue, while Imperial may have led oral evidence that the sole reason it did not hire Mr. Haseeb was because he lied, the documentary evidence (particularly the letter rescinding the offer) stated that the reason Imperial Oil was rescinding its offer to Mr. Haseeb was because he could not provide proof that he was either a Canadian citizen or a permanent resident.

[94] On the issue of whether the hiring policy was discrimination on the basis of citizenship, the HRTO reasonably found that the policy impacted only non-citizens. The fact that Imperial excepted one class of non-citizens (permanent residents) did not mean that it did not discriminate on the basis of citizenship. Discriminatory policies cannot be saved by the fact that they only partially discriminate. Further, the HRTO reasonably found that under the Code, particularly s. 16 thereof, the concept of “citizenship” includes discrimination on the basis of citizenship or permanent residence status.

[95] Finally, while this issue was not raised before the HRTO (and therefore should arguably not be dealt with on judicial review), I find that there is no basis for the argument that there was a “requirement, qualification or consideration imposed or authorized by law” that justified Imperial’s hiring policy. The law did not impose or authorize the discriminatory requirement; Imperial did. The fact that federal immigration law provides that only Canadian citizens or permanent residents may work in Canada on a permanent basis did not make this a legitimate occupational requirement for Imperial to impose.

Factual Background

Events Leading to the Application before the HRTO

Mr. Haseeb’s Citizenship and Immigration Status

[96] At the time of his interactions with Imperial Oil, Mr. Haseeb was an international student from Pakistan, studying engineering at McGill University. Mr. Haseeb had a visa that permitted him to obtain a work permit for on-campus part-time work and for full-time work elsewhere in Canada during academic breaks. Upon graduation Mr. Haseeb was eligible for a “postgraduate work permit” that would permit him to work full-time anywhere in Canada with any employer for three years. Mr. Haseeb was also eligible, under a special immigration program, to apply for his permanent resident status from inside Canada after he had been working full-time for one year. Thus, at the time he applied for a position with Imperial Oil, Mr. Haseeb anticipated that he would have his permanent residency status before his postgraduate work permit expired (which would have been in the Spring of 2018). Mr. Haseeb obtained his permanent resident status in June of 2017.

Mr. Haseeb’s Interactions with Imperial Oil

[97] Mr. Haseeb submitted an application for employment as an entry level engineer in Sarnia, Ontario with Imperial Oil on September 4, 2014. One of the questions asked on the written form he sent in was “Are you eligible to work in Canada on a permanent basis?” Mr. Haseeb answered “Yes” to this question, which was not true.

[98] On October 23, 2014, Imperial interviewed Mr. Haseeb at McGill. Again, he was asked if he was eligible to work in Canada on a permanent basis and, again, he lied and said “Yes.” On November 19, 2014, Mr. Haseeb attended three separate interviews at Imperial’s Sarnia refinery. In at least two of these interviews, Mr. Haseeb was asked the same question and gave the same untruthful answer.

[99] On December 1, 2014, Imperial contacted Mr. Haseeb and Mr. Haseeb told Imperial that he had received his permanent resident card the previous year and that he had a social insurance number. Both these statements were also untrue.

[100] On December 2, 2014, after Mr. Haseeb ranked first among his group of five job applicants, Imperial sent Mr. Haseeb a conditional offer of employment that stated:

This offer is conditional upon your submitting proof that you are eligible to work in Canada on a permanent basis. Proof of eligibility may come in the form of a copy of one of the following: Canadian birth certificate, Canadian citizenship certificate or a Canadian certificate of permanent residence. Please submit a photocopy of one of these documents with your acceptance of this offer.

[101] The conditional offer stated that Mr. Haseeb was to provide his acceptance by December 11, 2014. On December 10, 2014, Mr. Haseeb emailed Imperial the following:

I came across the clause on the job offer letter stating that I have to be permanently eligible to work in Canada … Since I am an international student, I will have to work on a Federal Work Permit before I am permanently allowed to work in Canada. The work permit is issued upon graduation, and is valid for three years, but before the permit even expires, I will have obtained permanent residence in Canada (please see Ontario Immigration website link below). That being said, I do intend to work and settle in Canada on a permanent basis.

Shelley, I am interested in the position and in working for Imperial Oil. Will you be able to make an exception at your end?

[102] Mr. Haseeb did not receive a reply to his email until January 8, 2015, when Imperial advised it was rescinding its job offer. The letter stated:

By letter dated December 2, 2014 Imperial Oil extended a conditional offer of employment to you. That offer was expressly subject to a number of conditions, including your ability to work permanently in Canada. You were required to submit proof of your permanent eligibility in the form of a copy of one of the following: Canadian birth certificate, Canadian citizenship certificate or a Canadian certificate of permanent residence. You have since notified Imperial Oil that you are not eligible to work in Canada on a permanent basis. Because you have not met the conditions of employment as outlined in our offer letter dated December 2, 2014 our offer of employment has now been rescinded.

[103] Mr. Haseeb graduated from McGill in January of 2015, obtained a post graduate work permit in February of 2015 and became a permanent resident in 2017.

The Proceedings Before the HRTO

[104] On February 9, 2015, Mr. Haseeb filed an application with the HRTO alleging discrimination on the basis of citizenship. Imperial Oil filed a request for a summary dismissal of the application, which was denied on November 2, 2015. Imperial filed a second request for a summary hearing on May 13, 2016, which was refused on June 7, 2016. On June 9, 2016, the HRTO granted Imperial’s request to bifurcate the hearing, such that the liability portion would be determined before the remedy portion was heard.

The Liability Hearing and Decision

[105] The liability hearing was heard over 13 days spanning a period of eight months, with oral argument completed on February 28, 2017. Six witnesses testified – Mr. Haseeb, three witnesses from Imperial Oil, and two experts on immigration matters. In addition, approximately 430 documents were filed, including affidavits.

[106] The HRTO released its Liability Decision on July 20, 2018. Yola Grant, an Associate Chair of the HRTO, authored the decision. The delay in its release was due to the fact that she was on leave for part of the period preceding the decision’s release.

[107] In summarizing the evidence, the HRTO noted that Mr. Haseeb conceded that he had misled Imperial Oil on a number of occasions about his eligibility to work in Canada on a permanent basis. The HRTO also found, at para. 78 of the Liability Decision, that “[t]here was some agreement between the immigration experts that if all went smoothly, a [post graduate work permit] holder would obtain permanent residency status within 6-18 months of an application. In Ontario, that application could be filed after completing 1 year of full-time employment.”

[108] The Liability Decision goes on to deal with the issue of whether Mr. Haseeb had standing to bring the application since he did not have a work permit to work full-time when he went through the selection process. The HRTO found that he did have standing and, as noted, Imperial Oil, at the hearing of this application, did not seek to review this aspect of the Liability Decision.

[109] The HRTO next addressed the question of whether Imperial Oil’s policy that Mr. Haseeb be eligible to work in Canada on a permanent basis constituted direct discrimination on the basis of citizenship under s. 5 of the Code. In so doing, the HRTO referred to the following aspects of the legal framework that governed its decision:

(1) Section 5 of the Code provides that every person has a right to be free from discrimination with respect to employment on a number of bases, including citizenship.

(2) Section 9 of the Code states, among other things, that no one shall “infringe or do” anything directly or indirectly that infringes s. 5.

(3) Section 11 of the Code sets out the BFOR defence, which can be used when “a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member”.

(4) The onus of proof in human rights cases, namely that the applicant has the onus of proving, on a balance of probabilities, that a violation of the Code has occurred. The initial onus is on the applicant to establish a prima facie case of discrimination on a balance of probabilities. If the applicant establishes a prima facie case of discrimination, the onus shifts to the respondent to establish on a balance of probabilities a statutory defence and/or a non-discriminatory explanation for the treatment that formed the basis for the complaint. If the non-discriminatory explanation for the impugned treatment is not the only basis for that treatment and the other basis for the treatment is discriminatory, then the onus is not met. If the respondent’s onus is met, then the onus shifts to the applicant to establish that the respondent’s explanation is erroneous or a pretext for discrimination. The burden on the respondent to rebut discrimination is described as an “evidential burden” in the case law relied upon by the HRTO. The ultimate onus of proving discrimination never shifts, it remains on the applicant.

[110] At para. 100 of the Liability Decision, the HRTO accurately summarized the position of both parties on the issue of whether Imperial Oil had discriminated against Mr. Haseeb on the basis of citizenship. Those arguments echo the one advanced before us.

In the instant case, [Mr. Haseeb’s] contention is simple: all international students are non-citizens and all are disadvantaged by [Imperial Oil’s] policy. This constitutes discrimination on the basis of citizenship, notwithstanding the fact that not all non-Canadian citizens are disadvantaged by [Imperial Oil’s] “permanence requirement”. For its part [Imperial Oil] asserted that its policy does not disadvantage permanent residents who are not citizens, so the issue really amounts to a distinction made on the basis of “immigration status” rather than citizenship. If the issue is so characterized, [Imperial Oil] submitted that the Code offers no protection and [Imperial Oil’s] policy is not discriminatory. [Emphasis in original.]

[111] The HRTO pointed out that the issue was “somewhat novel to HRTO” as earlier cases involving allegations of discrimination on the basis of citizenship were ultimately decided “without resort to a detailed analysis of this ground in the Code and its relationship to various subgroups of non-citizens.” For example, in Washington v. Student Federation of the University of Ottawa, 2010 HRTO 1976, the HRTO dealt with whether an on-campus election requirement compelled the applicant to provide documentation to prove that he was a Canadian citizen or a permanent resident. The case was dismissed because the applicant was a permanent resident and did not suffer a disadvantage as a result of the requirement. However, the HRTO did find that the requirement violated s. 5 of the Code.

[112] With a view to interpreting the meaning of “citizenship” in s. 5(1) of the Code, the Tribunal turned to the other section of the Code where the word is used to ensure that a consistent meaning is attached to the term. Section 16 of the Code provides a statutory defence to an allegation on the basis of citizenship. Section 16(1) provides that s. 5 is not infringed “where Canadian citizenship is a requirement, qualification or consideration imposed or authorized by law.” Section 16(2) states that s. 5 is not infringed “where Canadian citizenship or lawful admission to Canada for permanent residence is a requirement, qualification or consideration adopted for the purpose of fostering and developing participation in cultural, educational, trade union or athletic activities by Canadian citizens or persons lawfully admitted to Canada for permanent residence.” Section 16(3) provides that s. 5 of the Code is not infringed “where Canadian citizenship or domicile in Canada with the intention to obtain Canadian citizenship is a requirement, qualification or consideration adopted by an organization or enterprise for the holder of chief or senior executive positions.”

[113] After examining s. 16, the HRTO found as follows at paras. 108-9:

In the Tribunal’s view, the very fact that the Legislature saw fit to deem that in certain situations, hiring preference for “Canadian citizens” and “permanent residents” is not discrimination, means that conversely, in the absence of the s. 16 defence, HRTO can find that preferential hire on the basis of Canadian citizenship and permanent residence status amounts to discrimination under the Code. The language chosen by the Legislature in formulating a defence in s. 16 clearly contemplated that “permanent residence” (or “domicile in Canada with intention to obtain citizenship”) as well as “Canadian citizenship” are requirements that in certain context may properly found a claim of discrimination on the ground of citizenship.

A plain reading of the text above indicates that the Legislature, in drafting the s. 16 Code defence(s) expressly associated “domicile in Canada”, “permanent residence” with the concept of “Canadian citizenship”. In the Tribunal’s view, this association supports the view that “permanent residence”, although not expressly a listed “ground”, is properly associated with the ground of “citizenship” (or lack thereof) under the Code. [Emphasis in original.]

[114] Thus, as put by the HRTO at para. 111 of the Liability Decision:

The fact that [Imperial Oil]’s requirement distinguished on the basis of “Canadian citizenship” and “permanent residence” does not morph the distinction to one based on “immigration status”. As in Washington above, it is sufficient that “Canadian citizenship” is engaged by [Imperial Oil’s] requirement for it to run afoul of the Code on the ground of citizenship. [Emphasis in original.]

[115] The HRTO also justified its conclusion on the basis of the case law concerning partial discrimination. In this case it found that the demarcation that the Code is seeking to capture is the demarcation between citizens and non-citizens. Only non-citizens are affected by Imperial’s requirement. The fact that some non-citizens (permanent residents) are not disadvantaged by the requirement does not mean that the requirement is not discriminatory on the basis of citizenship. As put by the HRTO at para. 110: “The case law is clear that [Mr. Haseeb] need only demonstrate that he belongs to a class of non-Canadian citizens; he need not demonstrate that all members of that class are disadvantaged by [Imperial Oil’s] requirement”.

[116] The HRTO concluded that Mr. Haseeb had established a prima facie case that he had suffered discrimination in employment based on citizenship.

The BFOR Defence

[117] Since the HRTO’s findings on this issue are not being challenged in this judicial review my summary of this aspect of the Liability Decision will be brief.

[118] First, the HRTO found that by its terms s. 11 of the Code, which sets out the BFOR defence, is only available in cases of indirect or “adverse effects” discrimination. Since the discrimination engaged in by Imperial Oil was direct discrimination, Imperial could not avail itself of the BFOR defence.

[119] However, the HRTO also went on to address whether, if the BFOR defence was available, it had been made out. The HRTO concluded that Imperial Oil had not met the first part of the three-part test for establishing the BFOR defence. Namely, that the requirement was adopted “for a purpose rationally connected to the function being performed” (emphasis in original). In particular, the HRTO found at para. 131 “that there was no evidence that the permanence requirement, while it purportedly pursued a business purpose of retention of trained personnel and succession planning, was rationally linked to any specific task to be performed by the Project Engineer.”

[120] The HRTO also found that Imperial Oil had failed to meet the second part of the test, that the requirement was adopted “in an honest and good faith belief that it was necessary to the fulfilment of that purpose.” Specifically, at para. 134, the HRTO found that there was no evidence as to “the climate in which the policy was adopted, to give evidence of honest and good faith belief in the necessity of the ‘requirement’”. Further, at para. 135, “[Imperial Oil’s] risks were not empirically or rationally assessed at the time of imposing the requirement. There was no evidence of an empirical assessment of ‘necessity’ to adopt the impugned policy/requirement for the purported purpose of minimizing the ‘risk’ [to Imperial Oil’s] succession planning or risk to investment in training new employees.”

[121] Finally, the HRTO concluded that Imperial Oil failed to meet the third component of the test, undue hardship.

[122] None of these findings are being challenged before us.

Mr. Haseeb’s Honesty

[123] The section of the Liability Decision that is most relevant to Imperial Oil’s first submission before us deals with Mr. Haseeb’s honesty or dishonesty. Imperial Oil’s position before the HRTO was that Mr. Haseeb’s dishonesty was a reasonable non-discriminatory explanation for rescinding his offer that had nothing to do with the fact that he was not a Canadian citizen or a permanent resident. Mr. Haseeb had lied, not once but numerous times, and lying could not be tolerated in an employee who is a member of a profession where personal integrity is a hallmark.

[124] The HRTO reviewed Imperial Oil’s evidence on this point, which included the numerous lies that Mr. Haseeb admitted he told and the testimony of John Blysniuk, a manager, who testified that on January 4, 2015, he considered Mr. Haseeb’s file and sent a direction by email that Mr. Haseeb’s December 2, 2014 conditional offer should be rescinded. By this time Mr. Haseeb had admitted to Imperial Oil that he could not satisfy the condition in their offer and had asked that an exception be made. Mr. Blysniuk testified that he made his decision on the basis of Mr. Haseeb’s dishonesty and nothing else.

[125] In assessing Mr. Blysniuk’s evidence the HRTO found at para. 153 that:

[T]here was no evidence in all the internal [Imperial Oil] correspondence or the phone and email communication to [Mr. Haseeb] that after December 11, 2014 [the date by which the conditional offer had to be accepted and proof provided that Mr. Haseeb was a Canadian citizen or a permanent resident], [Imperial Oil] was considering a waiver of the requirement [as requested by Mr. Haseeb on December 10, 2014] or that [Imperial Oil] had judged him to be unfit for hire as he had misled the recruiters regarding his status as a permanent resident or Canadian citizen.

The HRTO also noted that Imperial Oil’s rescission letter made no mention of Mr. Haseeb’s dishonesty.

[126] The Tribunal was prepared to accept that Mr. Haseeb’s dishonesty played some role in how Imperial Oil treated him. However, the HRTO was not prepared to accept that the citizenship requirement did not factor into the decision. In this regard, the HRTO correctly noted that the discriminatory factor need not be the only, or even the primary, factor in making the decision. At para. 163, the HRTO accepted “the evidence of Imperial Oil’s Human Resources Manager (in cross-examination) that [Mr. Haseeb], who was processed as ‘eligible’, would be working at [Imperial Oil] today if he had been able to produce the required documents to demonstrate citizenship or permanent resident status.” The HRTO found that by the time that Imperial sent the rescission letter in January of 2015, it was effectively rescinding an offer that had already “expired”.

[127] With respect to Mr. Haseeb’s lying, the HRTO accepted Mr. Haseeb’s explanation for the lies. Namely that he had heard that if he told the truth, he would be excluded from any interviews and would not be given the opportunity to try and “sell” himself to Imperial Oil by educating them on his route to permanent status. At paras. 164-66 of the Liability Decision, the HRTO found that:

Given the evidence of [Imperial Oil’s] Human Resources Manager that no exceptions had been granted up to December 2014 to entry level Project Engineers, the Tribunal finds that [Mr. Haseeb’s] fear was well-founded. It is clear that [Mr. Haseeb], a young graduate (age 24 at the time of the job search) did not appreciate that his ruse might be viewed unsympathetically as a measure of untrustworthiness, where trust is essential to his role as an engineer. In the Tribunal’s view, “but for” [Imperial Oil’s] permanence requirement, [Mr. Haseeb] would have no need for a ruse to circumvent the requirement. Thus, an issue regarding [Mr. Haseeb’s] honesty would not have arisen and in all likelihood, [Mr. Haseeb] would have been hired by [Imperial Oil] as he was ranked first among the candidates.

Even if the Tribunal accepted the fact that [Mr. Haseeb misleading Imperial Oil] may have factored in [Imperial Oil’s] decision to not grant a waiver and to not hire him, it is clear to the Tribunal that [Mr. Haseeb’s] inability to meet the permanence requirement contributed to [Imperial Oil’s] non-hire.

In the Tribunal’s view, [Imperial Oil’s] imposition of the permanence requirement is the impulse for [Mr. Haseeb’s] ruse that later formed the basis for viewing him as dishonest. The Tribunal views the ruse as inextricably linked to the “permanence requirement” and find that [Imperial Oil’s] requirement was a factor in its decision to not hire [Mr. Haseeb]. As noted above, the Tribunal finds that [Imperial Oil’s] “permanence requirement” is discriminatory and tainted the hiring process, resulting in discrimination in employment on the ground of citizenship.

Other Issues

[128] The only other issues addressed in the Liability Decision concern post-hearing submissions and discriminatory employment advertising and employment applications. Neither were the subject of the judicial review application. However, the HRTO found that given that Imperial Oil’s permanence requirement was discriminatory, it also infringed ss. 23(1) and (2) of the Code, which provide that discriminatory employment advertising and employment applications that contain questions aimed at discriminatory qualifications are also violations of s. 5 of the Code. In other words, merely asking the question about whether Mr. Haseeb was a Canadian citizen or a permanent resident was discriminatory conduct under the Code.

[129] I pause to note again that the Respondent’s s. 16(1) submission before us is not dealt with in the Liability Decision as it was not raised before the HRTO.

The Reconsideration Decision

[130] The Reconsideration Decision focuses on the way that the Liability Decision dealt with Imperial Oil’s post-hearing submissions. Thus, it contains nothing of relevance to the application before us.

The Remedy Decision

[131] The Remedy Decision was made by a different adjudicator, Vice Chair Mark Hart, as Ms. Grant had left the HRTO. There is one aspect of this decision that I do propose to touch on – the HRTO’s findings with respect to Mr. Haseeb’s dishonesty. This factor was considered in the Remedy Decision because Imperial Oil submitted that, “notwithstanding the Tribunal’s finding that [Mr. Haseeb’s] citizenship was a factor in its decision not to hire [Mr. Haseeb], [Mr. Haseeb] would not have been hired in any event due to his dishonesty in the hiring process.” This argument was relevant to the issue of remedy because of the “general remedial principle that [Mr. Haseeb] should be put in the position that he would have been in but for the violation(s) of his rights under the Code.”

[132] During its Remedy Decision, the HRTO deals with Mr. Haseeb’s testimony at the liability hearing that he felt that he was in a “Catch 22” situation when he was asked about his eligibility to work in Canada. He also testified that he felt that the question being asked of him was discriminatory and therefore he was not obliged to give a truthful answer to a discriminatory question.

[133] In response, Imperial Oil submitted at the remedy hearing that Mr. Haseeb had a number of other options available to him other than lying, even if the question was discriminatory. He could have answered the question truthfully and, if he was screened out, he could have made an application to the HRTO. He also either could have not answered the question or could have advised Imperial Oil that he felt that the question was discriminatory.

[134] Imperial Oil made the same argument before us on the judicial review application. In fact, it argued that even if the question posed to Mr. Haseeb was discriminatory, Imperial Oil was still justified in not hiring him because of the repeated lies that he told in response to the discriminatory question.

[135] In the Remedy Decision the HRTO dealt with Imperial’s submission on this point in two ways. First, at para. 27, the HRTO found that if Mr. Haseeb had adopted any of the other options, he would have avoided being untruthful, but he would have been “screened out of the hiring process at an early stage, and before he could establish (as he has done in the instant case) that he was the top-ranked candidate in the competition. Where a job candidate is screened out of a hiring process at an early stage, it is exceedingly difficult for the candidate to prove that they would have

been hired but for the consideration of a discriminatory factor.” Second, the HRTO found, at para. 50, that to deprive an applicant of a remedy because they lied in response to a discriminatory question

would potentially allow a respondent to do an “end run” around the Code. For example, consider a situation where a landlord on a phone call with a prospective tenant asks the person if they are White, and the person says yes. The person then shows up to sign the rental agreement, and the landlord discovers the person in fact is Black. Could the landlord refuse to rent the apartment to this person not because they are Black but because they lied in response to the question about whether they are White, on the basis that truthfulness and trustworthiness are fundamental to the landlord-tenant relationship? Similarly, could an employer ask a prospective employee whether he is gay or whether she is pregnant, be told no, later find out otherwise, and fire or refuse to hire the person not because of their sexual orientation or because they are pregnant but because they lied about it? In my view, the answer in these situations is clearly no, on the basis that the initial question itself is prohibited by the Code.

Issues Raised

[136] Imperial Oil made three main arguments on this application:

(a) The HRTO was unreasonable in failing to accept Imperial’s position that the sole reason it did not hire Mr. Haseeb was because of his dishonesty.

(b) In the alternative, the HRTO was unreasonable in finding that Imperial Oil’s permanence requirement was discrimination on the basis of citizenship under s. 5 of the Code.

(c) In the further alternative, Imperial Oil had a statutory defence to its discriminatory conduct under s. 16(1) of the Code.

Standard of Review

[137] The HRTO appeared primarily for the purpose of making submissions on the standard of review. According to the HRTO, the Court of Appeal’s recent decision in Longueépée v. University of Waterloo, 2020 ONCA 830, lends support to its view that the applicable standard of review is patent unreasonableness. In Longueépée, the Court of Appeal found that the decision it was reviewing was both unreasonable and patently unreasonable. In view of this, the Court stated at para. 10 that “[i]t is both unnecessary and unwise in this appeal to determine whether, post-Vavilov, decisions of the HRTO are subject to a ‘patent unreasonableness’ standard of review, and indeed whether, in this context, a review for ‘patent unreasonableness’ is something different from a ‘reasonableness’ review.”

[138] In the case at bar I find that the HRTO’s decisions were reasonable. Thus, there is no need for me to go further to consider whether the applicable standard is patent unreasonableness. In saying this, I am conscious of the fact that the Divisional Court has already issued several decisions on this subject.

The Dishonesty Issue

[139] Imperial Oil submitted that the HRTO’s rejection of Imperial’s position that Mr. Haseeb’s dishonesty was the sole reason that Imperial did not hire Mr. Haseeb was unreasonable because:

(i) The HRTO ignored the uncontradicted evidence of Mr. Haseeb’s dishonesty and the uncontradicted evidence from Mr. Blysniuk that the sole reason he directed that the offer to Mr. Haseeb be rescinded was because Mr. Haseeb had lied during the recruitment process. According to Imperial, the HRTO also conflated the reason why Imperial decided not to hire Mr. Haseeb with the subject matter of his lies. The subject matter of the lies did not motivate Imperial’s decision; the fact that he lied did. Ontario law gives employers the right not to employ a job candidate who lies during the hiring process.

(ii) The HRTO erred in its factual analysis when it found that the December 2,2014 offer that Imperial had made to Mr. Haseeb had expired by the time Imperial rescinded its offer on January 8, 2015. This error was central to its unreasonable treatment of Mr. Blysniuk’s evidence. The HRTO also unreasonably placed the burden of proof on Imperial Oil to prove that it had not discriminated against Mr. Haseeb. At all times the burden was on Mr. Haseeb to prove that he had been discriminated against. According to Imperial, once Mr. Blysniuk testified, Imperial had discharged its preliminary evidentiary burden of offering a non-discriminatory explanation for the conduct at issue and the burden then shifted to Mr. Haseeb to establish that Mr. Blysniuk’s evidence was either false or a pretext. Imperial Oil states that these errors in the HRTO’s reasoning appear at para. 161 of the Liability Decision, which reads:

Finally, it is noteworthy that the offer letter to [Mr. Haseeb] required him to accept by December 11, 2014 and that offer expired with the passage of time. Blysniuk’s [sic] effectively rescinded an already expired offer letter. In the result, the Tribunal finds that there is insufficient evidence to demonstrate on a balance of probabilities that [Mr. Haseeb’s] dishonesty was the sole reason for his non-hire. In the Tribunal’s view, the expiry date of the offer letter that contained the discriminatory requirement that he could not meet is the date on which [Mr. Haseeb’s] loss as a job seeker crystallized. There was no evidence from [Imperial Oil] that it considered waiving the requirement as requested by [Mr. Haseeb] on December 10, 2014 and in so doing, extended the offer deadline past December 11. In the Tribunal’s view, [Imperial Oil’s] reason for the rescission of an already expired and unmet conditional offer is immaterial, except to the extent that it may relate to remedy.

(iii) The HRTO unreasonably concluded that Mr. Haseeb’s dishonesty was justified by Imperial’s permanence requirement. According to the HRTO, this argument is equivalent to saying that “the end justifies the means”. Imperial challenged the HRTO’s conclusion that Mr. Haseeb had to lie in order to get considered as a candidate for the job at issue. In particular, Imperial points to evidence (accepted by the HRTO in the Liability Decision) that it had waived the permanence requirement for a few candidates, although not for any entry level project engineer candidates. In the Liability Decision, the HRTO found that after rescinding its offer to Mr. Haseeb, Imperial made an offer to S., the fifth ranked candidate, whom Imperial knew only had an international student visa. However, I note that by the time of the Remedy Decision, this evidence was clarified and the HRTO confirmed in the Remedy Decision that no offer was ever made to S.

[140] It is inaccurate to suggest that the HRTO “ignored” either Mr. Haseeb’s evidence that he lied or Mr. Blysniuk’s evidence that the only reason he directed that the offer to Mr. Haseeb be rescinded is because of those lies. In the Liability Decision, the HRTO reviewed in detail the evidence regarding Mr. aHHa HH Haseeb’s interactions with Imperial, including the fact that he misled Imperial on a number of occasions about his ineligibility to work in Canada on a permanent basis.

[141] At para. 51 of the Liability Decision, the HRTO noted that “[a]t the hearing, [Mr. Haseeb] conceded that he had misled [Imperial Oil] regarding his then ineligibility to work permanently in Canada … Furthermore, [Mr. Haseeb] conceded that in fall 2014 through to [Imperial Oil’s] deadline for acceptance of its conditional offer, [Mr. Haseeb] was ineligible to work full-time with any off-campus employer.”

[142] On the subject of Mr. Blysniuk’s evidence, at para. 153 of its Liability Decision, the HRTO states: “[Imperial Oil] lead evidence through John Blysniuk, a manager, that on January 4, 2015 he gave consideration to [Mr. Haseeb’s] file and issued a direction by email to rescind the offer to [Mr. Haseeb] … He testified that he decided on the basis of [Mr. Haseeb’s] dishonesty”. The HRTO then went on to evaluate this evidence in the context of the other evidence. It did not ignore the evidence.

[143] According to Imperial, Mr. Haseeb’s admitted lies, and Mr. Blysniuk’s oral testimony that the only reason he directed that the offer to Mr. Haseeb be rescinded is because of those lies, were sufficient to discharge the onus that Imperial had once a prima facie case of discrimination was established. The HRTO discussed this question at para. 96 of the Liability Decision:

Drawing on well established human rights jurisprudence summarized in Garofalo v. Cavalier Hair Stylists Shop Inc., 2013 HRTO 170 at paras. 154-155, the onus on the parties is as follows:

The applicant has the onus of proving, on a balance of probabilities, that a violation of the Code has occurred. A balance of probabilities means that it is more likely than not a violation has occurred. Clear, convincing and cogent evidence is required in order to satisfy the balance of probabilities test. See F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41, at para. 46.

The initial onus is on the applicant to establish, on a balance of probabilities, a prima facie case of discrimination. A prima facie case is one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a finding in the applicant’s favour in the absence of an answer from the respondent. See Ontario Human Rights Comm. v. Simpsons-Sears, 1985 18 (SCC), [1985] 2 S.C.R. 536, at para. 28. If the applicant establishes a prima facie case of discrimination, the respondent must establish, on a balance of probabilities, a statutory defence and/or a credible non-discriminatory explanation for the impugned treatment. If the respondent is able to rebut the applicant’s prima facie case of discrimination, the burden returns to the applicant to establish, on a balance of probabilities, that the respondent’s explanation is erroneous or a pretext for discrimination. See Wedley v. Northview Co-operative Homes Inc., 2008 HRTO 13, at para. 52. The ultimate issue is whether the applicant has proven, on a balance of probabilities, that a violation of the Code has occurred. Although an evidentiary burden to rebut discrimination may shift to the respondent, the onus of proving discrimination remains on the applicant throughout. See Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593, 102 O.R. (3d) 97, at paras. 112 and 119. [Emphasis added.]

[144] At para. 161 of the Liability Decision, the paragraph Imperial seeks to impugn, the HRTO found that “there is insufficient evidence to demonstrate on a balance of probabilities that [Mr. Haseeb’s] dishonesty was the sole reason for his non-hire.” In other words, while the HRTO heard and appreciated Mr. Blysniuk’s evidence of a non-discriminatory reason (dishonesty) being the sole reason for Mr. Haseeb’s non-hire, it did not accept that this evidence constituted the sole reason for Imperial’s conduct. The HRTO considered the timing of Mr. Blysniuk’s decision to rescind, which was after the deadline in the Offer Letter, and the fact that no documentary evidence filed by Imperial supported Mr. Blysniuk’s evidence that the sole reason to not hire Mr. Haseeb was due to his dishonesty. As put by the HRTO in its Liability Decision at para. 153:

Aside from Blysniuk’s viva voce testimony, there was no evidence in all the internal [Imperial Oil] correspondence or the phone and email communication to [Mr. Haseeb] that after December 11, 2014, [Imperial Oil] was considering a waiver of the requirement or that [Imperial Oil] had judged him to be unfit for hire as he had misled the recruiters regarding his status as a permanent resident or Canadian citizen.

[145] Certainly, the rescission letter sent on January 8, 2015, “made no mention of honesty as a factor in the rescission and no mention of whether a waiver was considered and declined”: Liability Decision, at para. 157. While the letter was a pro forma letter, the evidence submitted by Imperial confirmed that an internal direction was given to rescind Mr. Haseeb’s offer on the basis that he could not satisfy the permanence requirement. On January 5, 2015, an email was sent from one staff member at Imperial Oil to another that said: “Please send Muhammed Hasseeb [sic] and rescind offer letter since he is not permanently eligible to work in Canada and the business does not want to pursue an exception.” Thus, consistent with the framework set out at para. 96 of the Liability Decision, the HRTO found that Imperial had not met its evidentiary burden of rebutting discrimination, which required establishing that the discriminatory factor played no part in Imperial’s decision not to hire Mr. Haseeb.

[146] Imperial Oil relies on the decision of the Ontario Court of Appeal in Peel Law Association v. Pieters, 2013 ONCA 396, 116 O.R. (3d) 81, for its submission that assessing Mr. Blysniuk’s uncontradicted non-discriminatory explanation was not something that the HRTO should have done at the second stage of its inquiry. To do so resulted in a reversal of the onus of proof.

[147] In Pieters, the Court of Appeal also dealt with an argument that the HRTO had reversed the onus of proof in its decision. In that case the focus was on the HRTO’s finding that there were sufficient facts “to require the respondents to provide an explanation for their actions to support their position that the decision to question the applicants was not tainted by race or colour”: Pieters, at para. 63. The Court of Appeal rejected this submission, but in the course of doing so discussed the shifting of the burden in human rights cases. First, the Court clarified that the burden that shifts to the respondent is an “evidential burden” not a “burden of proof”. Next, it pointed out that this was common in other legal contexts, including criminal law cases on recent possession of stolen goods and medical malpractice cases. After making these observations the Court went on to state at paras. 73-74:

In discrimination cases as in medical malpractice cases, the law, while maintaining the burden of proof on the applicant, provides respondents with good reason to call evidence. Relatively “little affirmative evidence” is required before the inference of discrimination is permitted. And the standard of proof requires only that the inference be more probable than not. Once there is evidence to support a prima facie case, the respondent faces the tactical choice: explain or risk losing.

If the respondent does call evidence providing an explanation, the burden of proof remains on the applicant to establish that the respondent’s evidence is false or a pretext.

[148] According to Imperial Oil, this means that once Mr. Blysniuk stated that he directed that the offer to Mr. Haseeb be rescinded solely because he had lied, Imperial’s evidential burden was satisfied and it was then up to Mr. Haseeb to establish that Mr. Blysniuk’s evidence was false or a pretext. Further, nowhere in the Liability Decision did the HRTO make a finding that Mr. Blysniuk’s explanation was false or a pretext.

[149] While Mr. Blysniuk may have testified that the reason he directed that a rescission letter be sent to Mr. Haseeb was because Mr. Haseeb lied, the Tribunal was still entitled to find that this explanation was not the sole reason for Imperial Oil’s conduct and that the discriminatory factor also played a role in Imperial’s decision not to hire Mr. Haseeb. As noted by the Tribunal, Mr. Blysniuk’s involvement came after Mr. Haseeb had been sent an offer on December 2, 2014, that was conditional on proof being sent of Canadian citizenship or Canadian permanent residency status. At no point, before or after the expiry date of this offer, did Imperial indicate to Mr. Haseeb that it was prepared to waive this condition. When Mr. Haseeb asked for a waiver on December 10, 2014 (the day before the deadline for accepting the offer and providing proof that he met the condition), no one from Imperial Oil communicated to him that they were considering waiving the condition and that the deadline for accepting the offer would be extended until a decision was made on the waiver question. Further, no one from Imperial ever told him that he was no longer entitled to an offer because he had lied. Finally, when the actual letter rescinding the offer came, no mention was made of dishonesty. The only explanation given was based on the discriminatory factor. Given this assessment of the evidence, which was accurate, the HRTO reasonably found that Imperial had not met the required evidential burden of providing a non-discriminatory explanation for the impugned conduct. In doing so, the HRTO evaluated the evidence before it and made a factual finding. Absent exceptional circumstances, this court must refrain from reweighing evidence or interfering with factual findings: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at para. 125.

[150] One of the exceptional circumstances that may jeopardize the reasonableness of a decision maker’s factual findings is when that decision maker has “fundamentally misapprehended” the evidence before it. According to Imperial, the HRTO made such an error when it found that Mr. Blysniuk “effectively rescinded an already expired offer”. I disagree. While one can debate whether the offer of December 2, 2014, had “expired”, one cannot debate the following: the offer was a conditional one; the condition had to be satisfied by December 11, 2014; the condition was not satisfied by December 11, 2014; the deadline for satisfying the condition was never extended; and the condition was never waived. Thus, by the time the formal rescission letter was sent on January 8, 2015, there was no longer an offer on the table that was capable of being accepted.

[151] Imperial also questions the reasonableness of the HRTO’s finding that Mr. Haseeb’s lies were inextricably connected to Imperial’s conduct in asking Mr. Haseeb a discriminatory question. While this issue may be relevant to the issue of remedy (for the reason cited by the HRTO in its Remedy Decision), once the HRTO found that Mr. Haseeb’s dishonesty was not the sole reason for Imperial Oil failing to hire Mr. Haseeb (and that the discriminatory factor played a role in the decision), from a liability perspective, it does not matter whether the dishonesty was driven by the discriminatory conduct or whether the dishonesty itself could have justified the decision. In any event, the HRTO’s findings on this issue were factual and, as noted above, absent exceptional circumstances, a reviewing court should refrain from interfering with a tribunal’s factual findings.

Discrimination on the Basis of Citizenship Issue

[152] Imperial Oil submits that it was unreasonable for the HRTO to decide that Imperial’s permanence requirement constituted discrimination on the basis of citizenship.

[153] First, Imperial questions the Liability Decision because at para. 101, the HRTO states: “‘Citizenship’ is a listed ground in the prohibitions against discrimination contained in both the Code and the equality provisions of the Canadian Charter of Rights and Freedoms”. As Imperial correctly points out “citizenship” is not a listed ground in s. 15 of the Charter; it is an analogous ground. This alleged error makes no difference to the analysis. Citizenship is a prohibited ground of discrimination under the Charter.

[154] Second, Imperial Oil submits that the HRTO set an unreasonably low standard for establishing discrimination on the basis of citizenship under the Code. The HRTO found that Mr. Hasseb only needed to demonstrate a link between his personal characteristic as a non-citizen of Canada and his alleged discriminatory treatment. According to Imperial, this aspect of the decision was unreasonable because Mr. Haseeb’s immigration status as a non-citizen was a mutable characteristic.

[155] Third, Imperial Oil argues that the Liability Decision was unreasonable because the HRTO conflated the prohibited ground of citizenship under the Code with immigration status, which is a mutable characteristic that is not covered by the Charter or the Code.

[156] Fourth, the Liability Decision is unreasonable because the decision does not reference or deal with the central authority relied upon by Imperial in its submissions on this issue before the HRTO: Irshad (Litigation Guardian of) v. Ontario (Minister of Health) (2001), 2001 24155 (ON CA), 55 O.R. (3d) 43, 197 D.L.R. (4th) 103 (C.A.).

[157] Fifth, the Liability Decision is unreasonable because it does not follow the Irshad case, which was a binding precedent on the same or similar issue.

[158] Sixth, the Liability Decision unreasonably found that the use of Canadian citizenship as a criterion for eligibility, even if not the sole criterion, was sufficient to support a finding of discrimination based on citizenship on the part of Imperial. According to the HRTO, the fact that there was a second criterion, permanent residence, did not change the analysis to one concerning immigration status. Imperial argues that this finding was unreasonable because citizenship was never a requirement for working at Imperial. Citizenship was just one of the ways that a candidate could prove that they were eligible to work in Canada on a permanent basis. The other forms of proof included a Canadian birth certificate or a certificate of permanent residence.

[159] In making its submission on this issue, Imperial Oil is attacking the HRTO’s finding that Mr. Haseeb had established prima facie discrimination under ss. 5(1), 23(1), and 23(2) of the Code. In dealing with Imperial’s arguments it is important to keep in mind certain basic principles that govern decisions under the Code. These are:

(a) The Code requires a broad, liberal and purposive interpretation consistent with its remedial objectives: see, for example, Canadian National Railway Co. v. Canada (Canadian Human Rights Commission), 1987 109 (SCC), [1987] 1 S.C.R. 1114; Robichaud v. Canada (Treasury Board), 1987 73 (SCC), [1987] 2 S.C.R. 84; and Brooks v. Canada Safeway Ltd., 1989 96 (SCC), [1989] 1 S.C.R. 1219.

(b) All members of a Code protected group need not be impacted equally in order to prove discrimination: Brooks, at p. 1249.

(c) To establish prima facie discrimination, an applicant has the burden of showing that there is a connection between the prohibited ground of discrimination and the impugned conduct. The prohibited ground must have played a role in the impugned conduct; it need not be the sole cause of the conduct: Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39, [2015] 2 S.C.R. 789, at paras. 43-52.

[160] The main issue that the HRTO had to grapple with was the issue it articulated in its decision – was Mr. Haseeb subjected to discrimination because of his immigration status or because of his citizenship?

[161] The Court of Appeal addressed a similar issue in Irshad. In Irshad, the Court dealt with the question of whether Ontario’s 1994 health care regime violated s. 15 of the Charter. Residency has always been a prerequisite for health care coverage under the Ontario Health Insurance Plan (“OHIP”) regime. In 1994, in the face of escalating health care costs and a recession, the Ontario government enacted provisions that restricted the definition of “resident” to exclude people who were only temporarily resident in the province (with some rare exceptions). Thus, to qualify for OHIP, there was a two-step process. First, a person had to be “ordinarily resident” in Ontario as that term was defined in the applicable regulation. For example, if a person came to Ontario from outside Canada, they would be regarded as ordinarily resident if they intended to make their permanent home in Ontario and if they were present in Ontario for five of the six months, and six of the 12 months, immediately preceding their application for OHIP. Second, people who were ordinarily resident in Ontario had to bring themselves within one of the 11 categories set out in the regulation. These categories were largely based on immigration status. They include Canadian citizens, Status Indians, landed immigrants, people applying for landed immigrant status who had passed the medical examination, convention refugees, people who have made a claim for refugee status that has been determined to be eligible for a hearing, persons working temporarily in Ontario under a permit granted by immigration (and their spouses and dependent children), members of the clergy who have signed a contract of employment for at least six months (and their spouses and dependent children), and persons who were granted employment status as nannies and domestics.

[162] The applicants before the Court of Appeal in Irshad were all people who satisfied the “ordinary residence” definition, but could not bring themselves within one of the 11 categories specified in the regulation. For example, one applicant, who had cerebral palsy, was denied entry to Canada as a landed immigrant, but was permitted to enter under a type of Minister’s permit. This permit did not make him eligible for OHIP. At paras. 134-35, the Court found that:

[T]he distinction made in the regulation is a distinction between those persons who are ordinarily resident in Ontario and whose status under federal immigration law is such that they are entitled or will shortly be entitled to be permanent residents of Ontario, and those persons who are ordinarily resident in Ontario but who, by virtue of their immigration status, are not entitled to become permanent residents in Ontario. For ease of reference, I will refer to the former as permanent residents and the latter as non-permanent residents.

A person’s status as a permanent or non-permanent resident of a province is not a ground enumerated in s. 15 of the Charter. Nor, in my view, is it an analogous ground.

[163] The Court’s determination that residency was not an analogous ground was based on its finding that residency was a mutable characteristic.

[164] In Irshad, the applicants also challenged the three-month waiting period provided for in the regulation, alleging that its effect was to discriminate against “new immigrants”, non-citizens, and persons of nationalities other than Canadian. The Court did not accept this characterization; it found that this aspect of the regulation did not create a distinction between different groups or persons.

[165] I do not agree that the HRTO’s failure to follow or deal with Irshad rendered its decision unreasonable. Irshad is not a Code case interpreting and applying the ground of citizenship in the Code to the facts. Irshad was a Charter case where the Court found that the legislation made distinctions based on residency, not citizenship. In other words, on the facts before the Court, the demarcation was not between citizens and non-citizens. The only distinction was between classes of non-citizens – ones who were on their way to becoming permanent residents and ones who were not. In the case at bar, the HRTO found that the real demarcation was between Canadian citizens and non-citizens, with an exception being made for one class of non-citizens, permanent residents.

[166] In coming to this conclusion, the HRTO reasonably looked to its own legislation to determine the meaning of “citizenship” under the Code. As put by the HRTO at para. 107 of the Liability Decision: “To interpret the meaning of the ground of ‘citizenship’ in s. 5(1) of the Code, the Tribunal found it useful to examine the Code for other usage(s) to ensure that a consistent meaning was attached to the term.” In doing so the HRTO turned to s. 16 of the Code, which outlines the statutory defences to an allegation of discrimination based on citizenship. For ease of reference, s. 16 is reproduced:

Canadian Citizenship

16(1) A right under Part I to non-discrimination because of citizenship is not infringed where Canadian citizenship is a requirement, qualification or consideration imposed or authorized by law.

(2) A right under Part I to non-discrimination because of citizenship is not infringed where Canadian citizenship or lawful admission to Canada for permanent residence is a requirement, qualification or consideration adopted for the purpose of fostering and developing participation in cultural, educational, trade union or athletic activities by Canadian citizens or persons lawfully admitted to Canada for permanent residence.

(3) A right under Part I to non-discrimination because of citizenship is not infringed where Canadian citizenship or domicile in Canada with the intention to obtain Canadian citizenship is a requirement, qualification or consideration adopted by an organization or enterprise for the holder of chief or senior executive positions.

[167] The HRTO interpreted the defences in s. 16, particularly s. 16(2), as meaning that in certain situations a hiring preference for Canadian citizens or permanent residents is not discrimination. At para. 108 of the Liability Decision the HRTO stated:

[C]onversely, in the absence of the s. 16 defence, HRTO can find that preferential hire on the basis of Canadian citizenship and permanent residence status amounts to discrimination under the Code.

[168] The HRTO found that the language chosen by the Legislature in s. 16 expressly contemplated that in certain situations discrimination on the basis of citizenship or permanent residence could constitute discrimination on the basis of citizenship. This conclusion was reasonable. If discriminating on the basis of citizenship or permanent residence status cannot constitute discrimination on the basis of citizenship, why put in the defence?

[169] The conclusion is particularly reasonable in the face of an employment requirement that expressly mentions Canadian citizenship in conjunction with permanent residence. It was also reasonable given the Supreme Court of Canada’s decision in Bombardier, which stands for the principle the HRTO applied – to establish prima facie discrimination under the Code on the basis of citizenship, Mr. Haseeb need only establish that Imperial Oil’s decision not to hire him was connected to his status as a non-citizen. That status does not have to be the sole reason for his failure to be hired.

[170] Imperial Oil’s submission that there was no requirement for Canadian citizenship, only a form of proof, fails to give effect to the principle that the Code is remedial legislation that is meant to be applied in a purposive way. It would be inconsistent with a broad and purposive interpretation to find that proof of Canadian citizenship was a factor in getting hired at Imperial, but that this proof of Canadian citizenship did not constitute discrimination because it was not worded as a requirement; it was only worded as a form of proof. Making such a finding would amount to putting form over substance.

[171] The HRTO also looked at its own jurisprudence to find if there was anything in that jurisprudence that was inconsistent with its conclusion. According to Vavilov, at para. 131: “Whether a particular decision is consistent with the administrative body’s past decisions is also a constraint that the reviewing court should consider when determining whether an administrative decision is reasonable.” While this was, as the HRTO noted, in many ways a case of first impression, there was one prior decision, Washington, where the HRTO found (although it did not have to) that a student federation’s requirement that candidates for election be Canadian citizens or permanent residents was a violation of the Code, as it disqualified candidates on the basis of citizenship.

[172] Finally, the HRTO dealt with the argument that not all non-citizens were affected by Imperial’s requirement. In doing so, the HRTO reasonably found that to establish discrimination on the basis of a prohibited ground, not all members of the class need to be disadvantaged by the discriminatory requirement. In this case, the HRTO acknowledged correctly that while no citizens were disadvantaged by the requirement, some non-citizens (permanent residents) were also not disadvantaged.

[173] In Brooks, the Supreme Court dealt with a similar argument. In that case the Court was considering whether a company accident and benefit plan that exempted pregnant women from benefits constituted discrimination on the basis of sex under the Manitoba human rights code. The Tribunal, and the courts below, had found that discrimination on the basis of pregnancy was not discrimination on the basis of sex as the exemption did not affect women who were not pregnant. The Supreme Court disagreed, finding at p. 1248 that “[t]he fact that discrimination is only partial does not convert it into non-discrimination.” While not all women would be affected by the exemption, only women would be affected; not men.

[174] The reasoning in Brooks is applicable to the case at bar. The fact that not all non-citizens were disadvantaged by Imperial Oil’s requirement does not detract from the fact that only non-citizens were disadvantaged by it; citizens were not.

The Section 16(1) Defence

[175] According to Imperial Oil, the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (“IRPA”), makes distinctions that put citizens and permanent residents in a special category – they are the only ones eligible to work in Canada on a permanent basis. Under s. 16(1) of the Code, “[a] right under Part I to non-discrimination because of citizenship is not infringed where Canadian citizenship is a requirement, qualification or consideration imposed or authorized by law.” According to Imperial its permanence requirement was a “consideration” “authorized by law”, and thus, s. 16(1) constitutes a complete defence to its actions.

[176] In the Liability Decision no mention is made of this argument, nor is it dealt with. That is because Imperial did not advance this argument before the HRTO. That reason alone is a reason to reject Imperial’s submission on this point. Raising matters on judicial review for the first time undermines one of the fundamental principles that govern such proceedings – deference to the Legislature’s decision to put certain decisions into the hands of administrative tribunals, not the courts. The court’s role is limited to reviewing those decisions. The court’s role is not to make those decisions. Allowing the argument at issue to be advanced for the first time on a judicial review application also deprives the court of the benefit of the HRTO’s opinion on the subject.

[177] Having said this, I do propose to deal with the submission, primarily because it illustrates how important it is to emphasize that interpreting the Code requires keeping in mind its remedial objectives. If an allegation of discrimination on the basis of citizenship could be defended merely on the basis that the IRPA makes distinctions between citizens and non-citizens, then the prohibited ground would lose all meaning. This would make a mockery of a piece of legislation that has been described as “quasi constitutional” in nature.

[178] The IRPA did not “authorize” Imperial Oil to impose a permanence requirement, so that only Canadian citizens or permanent residents could apply for employment. The IRPA does state that only Canadian citizens or permanent residents are eligible to work in Canada on a permanent basis, but it was Imperial that decided that this was a necessary condition for employment and chose to impose it. The IRPA would have been an appropriate consideration under s. 16(1) if Mr. Haseeb had no status to work in Canada at the time he commenced his employment with Imperial. The HRTO made clear findings against Imperial on this question.

Conclusion

[179] For these reasons I would dismiss the application.

Sachs J.

Released: June 1, 2021

CITATION: Imperial Oil Limited v. Haseeb , 2021 ONSC 3868

DIVISIONAL COURT FILE NO.: 528/19

DATE: 20210601

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Sachs, Lederer and Mew, JJ

BETWEEN:

IMPERIAL OIL LIMITED

Applicant

– and –

MUHAMMAD HASEEB and the HUMAN RIGHTS TRIBUNAL OF ONTARIO

Respondents

REASONS FOR JUDGMENT

Released: June 1, 2021

[^1]: Farris v. Staubach Ontario Inc., 2004 11325 (ON SC) at para. 11: Human rights legislation occupies a uniquely protected sphere in law. It exists independent of and in addition to rights of citizens to enforce their common law rights to sue for breach of contract and tortious conduct. It enjoys quasi-constitutional status and can only be overridden by express and unequivocal legislative language: Ford Motor Co. of Canada Ltd. v. Ontario (Human Rights Commission) (2001), 2001 21234 (ON CA), 209 D.L.R. (4th) 465 at para.47 (Ont. C.A.). And see: Canadian Union of Public Employees, Local 79 v. Toronto (City), 2012 ONSC 1158 at paras. 48 and 51; Gale v. Miracle Food Mart (No. 4), 1992 14237 (ON HRT) at para. 20, referring to Winnipeg School Division No. 1 v. Craton (1985), 1985 48 (SCC), 6 C.H.R.R. D/3014 (S.C.C.) at para. 24270 [p. D/3015]; Mathurin v. University of Toronto, 2012 HRTO 602 at para. 6, Rycroft v. Minhas, 2015 HRTO 1654 at para. 9 and Piette v. Girones Lawyers, 2009 HRTO 1837 at para. 10 all three referring to Ouwroulis v. New Locomotion, 2009 HRTO 335 at paras. 4-7;

[^2]: R.S.O. 1990, c. H.19

[^3]: I am indebted to my colleague Mew J. for the recitation of the Facts as provided herein.

[^4]: Human Rights Code, supra (fn.2) at s. 45.8

[^5]: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 SCR 190 at para. 34

[^6]: 2019 SCC 65, 441 DLR (4th) 1, 59 Admin LR (6th) 1, 312 ACWS (3d) 460

[^7]: Intercounty Tennis Association v. Human Rights Tribunal of Ontario, 2020 ONSC 1632 446 DLR (4th) 585 at para. 30 quoting from Canada (Minister of Citizenship and Immigration) v. Vavilov, ibid at para. 17

[^8]: Intercounty Tennis Association v. Human Rights Tribunal of Ontario, supra (fn.[ ] ) at para. 42

[^9]: The issue was raised in Longueépée v. University of Waterloo, 2020 ONCA 830 but not dealt with. The resolution of the question would not have affected the overall disposition of the case: In my view, it is both unwise and unnecessary for the proper disposition of this appeal, to embark on the analysis that the HRTO asks this court to undertake: that is, to determine whether post-Vavilov the statutory standard of review in s. 45.8 of the Code should be given effect, and if so, whether a court’s review of an administrative decision for “patent unreasonableness” would be different from a review for “reasonableness”. It is unwise to do so because these issues should be decided in a case where the standard of review makes a difference to the outcome, and where the parties with a stake in the dispute have joined issue on the point. It is unnecessary in this case because the result would be the same under both standards of review. (para. 56)

[^10]: Canada (Minister of Citizenship and Immigration) v. Vavilov, supra (fn. 9) at para. 13

[^11]: Ibid at para. 13

[^12]: Ibid at para. 81

[^13]: Ibid at para. 85

[^14]: Ibid at para. 86

[^15]: Ibid at para. 15

[^16]: Ibid at para. 96 referring to Delta Air Lines Inc. v. Lukács, 2018 SCC 2, [2018] 1 S.C.R. 6 at paras. 26-28

[^17]: Haseeb v. Imperial Oil Limited, 2018 HRTO 957 at para.32

[^18]: Ibid at para.117

[^19]: Ibid at para. 125

[^20]: Ibid at para. 11

[^21]: Ibid at para.110 where the following is said: Residence status and work entitlement are subject to change over time (i.e. they are mutable) within the class of non-citizenship. Citizenship, on the other hand, has attributes that are not mutable and the status of “citizen” is subject to revocation only in rare circumstances.

[^22]: On the other hand, the HRTO was critical of Imperial Oil for not providing what it referred to as “experience data” concerning employees it had waived: The Tribunal notes that IO did not rely on its own personnel files to extract “experience data” of the employees for whom it waived the requirement and who subsequently obtained permanent residency within 3 years. This data of IO’s actual experience with PGWP holders becoming permanent residents did not inform IO’s 2004 policy in the first place, nor did IO demonstrate that it made any effort to update its policy after a decade, to align with the changing nature of the Immigration Act that permitted new graduates from participating institutions to become permanent residents, without the need for IO’s sponsorship or any other involvement.

[^23]: Ibid at para. 155

[^24]: Haseeb v. Imperial Oil Limited, 2019 HRTO 1174 at para. 28

[^25]: Ibid at para. 93. Section 5(1) of the Ontario Human Rights Code is the section that identifies the right to employment without discrimination. It states: Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability. [Emphasis added]

[^26]: R.S.C., 1985, c. C-29, s. 2(1)

[^27]: S.C. 2001, c. 27, s. 2(1)

[^28]: Haseeb v. Imperial Oil Limited, 2018 HRTO 957 at para. 98 and 99

[^29]: Ibid at para. 104

[^30]: Ibid at para. 102

[^31]: Ibid at para. 104

[^32]: Ibid at para. 107

[^33]: Ibid at para. 108

[^34]: Ibid at para. 107(3) I point out that the fact of a distinction between “domicile” and “permanent residency” was recognized by the HRTO in Washington v. Student Federation of the University of Ottawa, 2010 HRTO 1976 at para. 74: Nor do the circumstances align with the exception provided for at subsection 16(3). I am not convinced that, in this case, the requirement applied only to “chief or senior executive positions.” In any event, subsection 16(3) contemplates citizenship or domicile in Canada with the intention of obtaining citizenship. The SFUO’s requirements were citizenship or permanent residency. The case is reviewed in greater detail herein beginning at para. [59 ]

[^35]: Ibid at para. 109

[^36]: Toussaint v. Ontario (Health and Long-Term Care), 2011 HRTO 760 at para. 19. The case is reviewed in greater detail herein beginning at para. [64]

[^37]: 2010 HRTO 1976

[^38]: Haseeb v. Imperial Oil Limited, 2018 HRTO 957 at para. 104

[^39]: Washington v. Student Federation of the University of Ottawa, supra (fn. 34) at para. 1. One might wonder whether student elections are demonstrative of “employment”. This was raised: The respondent argued that the applicant and the respondent have never had an employment relationship and that, as a result, section 5 of the Code does not apply in the circumstances. (para. 88) But not decided: Because I find that the respondent did not discriminate against the applicant, it is not necessary for me to determine whether the social area of employment is relevant to the circumstances. (para. 91)

[^40]: Ibid at para. 45

[^41]: Ibid at para. 4

[^42]: Ibid at para. 77

[^43]: Ibid at para. 69

[^44]: Ibid at para. 77

[^45]: Ibid at para. 79

[^46]: Ibid at para. 9

[^47]: Ibid at para. 75

[^49]: Ontario Human Rights Code, supra (fn. 2), s. 1

[^50]: Toussaint v Ontario (Health and Long-Term Care, supa (fn. 46) at paras. 6 and 12

[^51]: Ibid at paras. 2, 13 and 17

[^52]: Haseeb v. Imperial Oil Limited, 2018 HRTO 957 at para. 105

[^53]: 2001 24155 (ON CA), 55 O.R. (3d) 43, 197 D.L.R. (4th) 103 (C.A.).

[^54]: Ibid at para. 132

[^55]: Ibid at para. 133

[^56]: Ibid at para. 136

[^57]: Ibid at para. 138

[^58]: Ibid at para. 135

[^59]: Factum of the Applicant at para. 42 and see Haseeb v. Imperial Oil Limited, 2018 HRTO 957 at paras. 24 and 100

[^60]: Haseeb v. Imperial Oil Limited, 2018 HRTO 957 at para. 111

[^61]: Ibid at para. 104

[^62]: Supra (fn. 4) at para. 141 quoted in Longueepee v. University of Waterloo, supra (fn. 7) at para. 90

[^63]: Ibid (Vavilov) at para. 142 quoted in ibid (Longueepee) at para. 90