The rights of foreign-trained workers just got stronger

When a young and enthusiastic international medical school graduate student arrives in Canada, they are largely unprepared for what lies ahead. The student must have a medical degree recognized by the World Health Organization, and they must obtain an Ontario certificate of independent practice from the College of Physicians and Surgeons of Ontario. In other words, they must be Canadian citizens or have permanent-resident status in Canada.   

Recently, the Ontario Human Rights Tribunal released a precedent-setting decision whereby this seemingly inequitable landscape could change. In Haseeb v. Imperial Oil Limited (2018 HRTO 957), the HRTO found that where the employer, in this case Imperial Oil, required a job applicant prove that he or she was eligible to work in Canada through citizenship or permanent residency, the employer engaged in prima-facie discrimination and overtly violated the Human Rights Code based on a prohibited ground — citizenship.   

The utility of the decision is enormous. There are more than 7,000 foreign-trained doctors residing just in Ontario. The total number in Canada exceeds 10,000 each year. Annually, according to CIC, more than 2,000 general practitioners and specialists are predicted to arrive in Canada as federal immigrants.

A 2012 report by the federal immigration department revealed that of 50,000 cab drivers across Canada, 200 were doctors or had PhDs, while a shocking 20 per cent had an undergraduate or master’s degree. But, according to the Fraser Institute, Canada is in the midst of a physician shortage.

Jeffrey Reitz, professor and director of the ethnic, immigration and pluralism studies program at the Munk School of Global Affairs and Public Policy at the University of Toronto, in his essay titled “Taxi Driver Syndrome: Behind-the-scenes immigration changes are creating new problems on top of old ones,” wrote:

“Are immigrant professionals still driving taxis? The answer is yes. They are also mopping floors, bagging groceries, guarding office buildings, delivering pizzas, waiting tables and working at call centres. . . . The problem is known as ‘brain waste’ and some economists estimate its cost to Canada as totaling at least $3 billion a year, not to mention the ruined dreams suffered by the immigrants themselves.”

The utility of the Imperial Oil decision to foreign-trained professionals is explosive.

In the decision, the applicant applied for the position of project engineer, which would have commenced following his graduation from McGill University. Although ineligible to work in Canada, Muhammad Haseeb decided to check “permanent resident” on his job application, because he knew that failing to do so would be fatal to his application.

At the time of his application, Imperial Oil had a policy dating back to 2004 that offered entry-level positions to only candidates eligible to work in Canada on a permanent basis. At the hearing, Imperial Oil defended its policy on the premise that the requirement guaranteed the longevity of the employment relationship with its employees, as well as helped to realize the aim of developing lifelong corporate employees within the company.

The tribunal found that the permanence requirement imposed by the employer throughout the hiring process constituted a violation of the code, which did not fall into any statutory exceptions or exemptions; nor did it amount to a bona fide occupational requirement. The employer had engaged in “direct” discrimination. In the decision, associate chairperson Yola Grant held:

“. . . citizenship and non-citizenship are clear demarcations that are captured by the Code, with non-citizenship serving to capture all individuals in Ontario who are not Canadian citizens. Among non-citizens, there are individuals with varying residence status and different degrees of entitlement to work in Canada. 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. To obtain protection from discrimination under the Code on the basis of ‘citizenship’, the applicant need only establish that the alleged discriminatory treatment is linked to his personal characteristic of being a non-citizen of Canada (or non-Canadian citizen)…”

Grant was also not persuaded that Imperial Oil had demonstrated that the permanency requirement was either necessary in the circumstances or linked to the essential elements of the work to be performed. With respect to the applicant’s deception regarding his residency status, the HRTO did not grant Imperial Oil much sympathy, finding that “but for” the discrimination, the applicant would have “no need for a ruse to circumvent the requirement.”

What’s more? The HRTO criticized Imperial Oil for intentionally discriminating against applicants by having the requirement blatantly placed in job postings and on its written application forms.

The decision provides the first fulsome interpretation of the application of the ground of “citizenship status” in the context of job applications and hiring, and it has far-reaching implications. Barriers to employment and career realizations for foreign-trained professionals in Canada are not new, nor are they stagnant. According to a report released in January 2016, nearly 850,000 Canadians — more than 60 per cent of whom are immigrants — end up under-employed or unemployed because their credentials aren’t recognized in Canada.

What’s the bottom line, then? Canada’s foreign policy combined with the corporate upper hand is no joke — but in 2018, foreign-trained workers have some options.

Tara Vasdani is a 2017 call and a civil litigator at Mills & Mills LLP. Her practice is centred on employment, estates, real estate and business litigation.