Humber College

Bachelor of Paralegal Studies

Immigration and Refugee Law - PLBA - 3000 - OLB

Haseeb v Imperial Oil

Arghawan Habibi N01397136

Professor Jennifer R. Ansell

Nov 13, 2023

Imperial Oil Limited v Haseeb, 2023 ONCA 364

Facts:

The appellant, Mr. Mohammad Haseeb, was an international student and about to graduate with
a technical engineering degree from McGill University. He was neither a Canadian Citizen nor a
Permanent resident. Upon graduation, he will be able to work for at least three years anywhere in
Canada, under the Federal Post-Graduate Work Permit Program (“the PGWP”) Which will
provide access to permanent Canadian residency after one year of full-time employment. Haseeb
received a conditional offer of employment as a project engineer from Imperial Oil Limited,
which required him to have permanent residency status. This had already been discussed during
the pre-employment interviews, but the appellant, throughout the recruitment process, mislead
the company about his ability to work in Canada on a permanent basis. But Mr. Haseeb revealed
to Imperial that he was not a permanent resident, which resulted in the withdrawal of the job
offer. then Mr. Haseeb subsequently brought a human rights application against Imperial Oil Ltd.
alleging discrimination based on citizenship, contrary to the Ontario Human Rights code (the
“code”)

Issues:

1. Whether the tribunal’s decision that the defence under s. 16(1) of the code was not
available to imperial reasonable?
2. Whether the tribunal’s finding of a prima facie claim of employment discrimination on
the basis of citizenship reasonable?
3. Whether the tribunal’s decision that the appellant had a standing to file an application
claiming discrimination on the basis of citizenship reasonable?
4. Whether the tribunal’s decision that Imperial Oil withdrew the job offer because the
appellant was not a Canadian Citizen or Permanent resident, rather than being dishonest
toward them sounds reasonable?

Legal Reasoning:
 1. The Divisional Court:

As per The Human right Tribunal of Ontario’s decision, which was found in the appellant’s
Favour in a decision issued on July 20, 2018. Such as the appellant had standing under s.34 of
the code to bring his application; (2) it was a direct discrimination for imperial to require
applicants to prove their Canadian citizenship or PR status to be eligible to work. (3) the main
reasons beyond withdrawal of the job offer were appellant’s dishonesty and lack of citizenship
status (4) Imperial had not proven that its permanence requirement was in fact, a bona fide
occupational requirement. Furthermore, the tribunal rejected the reconsideration application filed
by the Imperial. Awarded the appellant almost $120,360.70 in damage for lost income, losing
self-respect, and pre-judgement interest. But The Majority of the Divisional Court (Sachs, J
dissenting) overturned the Tribunal’s decision and granted the application for judicial review,
found that The Human Rights Tribunal of Ontario’s decision was unreasonable and rejected to
remit the matter to the tribunal for a new hearing. The divisional court decided that there could
be no direct or indirect discrimination based on the clause that an employee be a permanent
resident; in doing so, it approved that “Permanent residence” is not protected ground under the
Ontario Human Rights code.

Meanwhile, Sachs J., in dissent, found that the tribunal’s decision was reasonable, would have
dismissed the judicial review application. She started by setting out many principles governing
the interpretation of human rights legislation. Basically, she found reasonable the tribunal’s
interpretation of the defenses to discrimination on the basis of citizenship in s.16 of the code as a
tool to interpret the scope of citizenship discrimination. Sachs J. Further found that the tribunal’s

conclusion that imperial discriminated against Mr. Haseeb based on citizenship was consistent
with the burden in human rights litigation that a claimant need only establish that a decision not
to hire is connected to their status as a non-citizen (i.e., the protected ground), and this didn’t
stop here.

2. The Court of Appeal:

The appellant appealed the Divisional Court decision to the Court of Appeal. The Ontario Court
of Appeal restored the tribunal’s ruling on the basis that the Divisional Court erred in applying
the reasonableness standard. Because they breached rules of Procedural fairness and failed to
provide convincing reasons for rejecting the applicant’s claim for a new hearing and considering
a BFOR defence which had been abandoned by Imperial; furthermore, the majority of the
Divisional Court failed to apply the principle of partial discrimination, incorrectly applied the
reasonableness standard by misinterpreting the tribunal’s reasons for claiming discrimination on
the basis of citizenship, and they further erred in concluding the tribunal’s finding that the
appellant had established Prima Facie direct discrimination which was unreasonable, and in
doing so, the majority erred in its approach to the concept of discrimination itself.

Imperial argued that the tribunal’s decision was unreasonable because they wanted to be more
certain about the immigration status of their employees. It is considered appropriate for the
permanent residents to be eligible for the position. But the policy carved out an exception for
permanent residents, the fact that the policy discriminated against some non-citizen because of
their citizenship was sufficient ground for a finding of Prima Facie discrimination. Furthermore,
the court found that Prima Facie discrimination was made out, and the letter sent by imperial to
Haseeb regarding the revocation of his job offer cited only lack of eligibility to work
permanently without mentioning anything about dishonesty or lying to them about his status in
Canada.

Conclusion:

I personally believe that the tribunal decision is fair and reasonable and that the Divisional Court
incorrectly applied the reasonableness standard of review in overturning the tribunal’s decision.
But luckily the Ontario court of appeal restored the decision of the Human Right Tribunal of
Ontario which had successfully found that Imperial Oil had discriminated against a job applicant
by asking proof of Canadian Citizenship or PR. Furthermore, the court of appeal found that
s.16(1) has an exception that would permit an employer to impose such Canadian Citizenship
clause, but only authorized by law.