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Human Rights (Ontario) - Bona Fide Occupational Requirement (BFOR). Imperial Oil Limited v. Haseeb
In Imperial Oil Limited v. Haseeb (Ont CA, 2023) the Court of Appeal considered the distinction between direct and indirect discrimination, particularly how it bears on the HRC s.11 BFOR (bona fide occupational requirements) provisions:(e) The tribunal’s finding that the discrimination was direct rather than indirect was reasonable
[173] In my view, the tribunal’s finding that Imperial’s discrimination against the appellant was direct is reasonable. However, if there is any doubt about whether the discrimination ought to have been characterized as adverse impact, in the circumstances of this case it would have no impact on the result.
[174] As I have explained above, given the jurisprudence and legislation concerning the availability of a BFOR defence under s. 11 of the Code, the only relevance to whether the discrimination in this case is characterized as direct or adverse impact is the availability of the BFOR defence. The tribunal found that the discrimination was direct, but went on, in the alternative, to consider whether Imperial had established a BFOR defence (in the event that the discrimination was better characterized as adverse impact). The tribunal found on the record before it that Imperial failed to establish a BFOR defence. Imperial did not seek review of that finding in the Divisional Court or raise it in this court. Thus, whether the discrimination was reasonably characterized as direct or indirect had no impact on the outcome. I will address each of these points in turn.
[175] As I have summarized above, direct discrimination occurs where an employer adopts a practice or policy which on its face discriminates on a prohibited ground. Adverse impact discrimination occurs where an employer’s practice or policy is neutral on its face, but has a discriminatory effect on a prohibited ground on an employee or a group of employees by imposing obligations or restrictions on them not imposed on other employees.
[176] The tribunal found that Imperial’s discrimination against the appellant (and all PGWP-holders) was direct. The tribunal reached this conclusion because it found that, on its face, Imperial’s policy discriminated against a subset of non-Canadian citizens. The tribunal found that this was so because the policy was clear that the only people eligible for employment were Canadian citizens and permanent residents. On its face, the policy excluded all non-Canadian citizens apart from permanent residents. It excluded a subset of non-Canadian citizens, and only non-Canadian citizens.
[177] In my view, particularly given the standard of review and the difficulty recognized in the jurisprudence of characterizing whether discrimination is direct or adverse impact, I find that the tribunal’s conclusion that the discrimination was direct is reasonable.
[178] Reading the job posting and Imperial’s policy, as well as its communications with the appellant, the effect is: We will hire Canadian citizens and also will hire a subset of non-Canadian citizens (i.e., permanent residents). On its face, Imperial’s policy is clear that a subset of non-Canadian citizens eligible to work in Canada is excluded from hiring, and it is only non-Canadian citizens who are excluded.
[179] Having said this, I accept that on this particular issue, reasonable people could differ on whether to characterize the discrimination as direct or indirect.[11] It may be that one could conceptualize the discrimination as being adverse impact if the requirement imposed by Imperial’s policy were characterized as “permanent eligibility to work in Canada.” Given the policy’s express reference to Canadian citizenship, I am not persuaded that this would be the best characterization of the policy. For this reason, I do not view this case as a situation where this court’s decision in Entrop would suggest characterizing the discrimination as adverse impact in order to leave open a BFOR defence. However, if the distinction made by the policy were characterized as being on the basis of “permanent eligibility to work in Canada”, the policy would be neutral on its face, but have an adverse impact on non-Canadian citizens. All Canadian citizens are eligible to work under the policy. But only a subset of non-Canadian citizens are eligible – permanent residents. This policy has an adverse impact on PGWP-holders, like the appellant, and the adverse impact is connected to their non-Canadian citizenship. Only non-Canadian citizens are impacted by the policy (although not all non-Canadian citizens are impacted because of the exception for individuals with permanent resident status).
[180] As I have adverted to above, and discuss further below, many non-Canadian citizens do not have the broad right to work that PGWP-holders have. As a practical matter, the claims of many non-Canadian citizens would founder on the s. 16(1) defence. But PGWP-holders, like the appellant, are legally eligible to work full-time, for any employer, anywhere in Canada. They are legally eligible to hold the job the appellant applied for. But Imperial’s policy, even if characterized as a requirement of eligibility to work permanently in Canada, has an adverse effect on PGWP-holders that is connected to their non-Canadian citizenship.
[181] In light of this possibility to characterize the discrimination as adverse impact rather than direct, if I had concluded that the tribunal’s finding that discrimination in this case was direct rather than indirect was unreasonable, is there any possibility that the outcome of this case would have been different? In my view, there is not. In the circumstances of this appeal, whether the discrimination is characterized as direct or adverse impact has no impact on the outcome.
[182] As I have outlined above, the only practical effect in this case of whether the discrimination is characterized as direct or adverse impact is that, in Ontario, a BFOR defence under s. 11 of the Code is only available as a defence to a finding of adverse impact discrimination, and not available as a defence to direct discrimination.
[183] Although the tribunal concluded that the discrimination was direct, and thus a BFOR defence was not available pursuant to s. 11 of the Code, the tribunal went on to consider the BFOR defence on the merits, in the alternative.
[184] The tribunal found that Imperial had not established a BFOR defence on the merits. I do not summarize the reasons why the tribunal came to this conclusion because Imperial did not contest that finding in its application for judicial review to the Divisional Court. Nor does it contest that finding in its response to the appeal in this court.
[185] As Imperial did not contest the reasonableness of the tribunal’s alternative finding that a BFOR defence was not established, even if the tribunal’s conclusion that the discrimination was direct rather than adverse impact were found to be unreasonable, the characterization of the discrimination as direct had no impact on the outcome of the proceedings before the tribunal. . Wallwork v. Toyota Manufacturing Canada Inc.
In Wallwork v. Toyota Manufacturing Canada Inc. (Div Ct, 2021) the Divisional Court addressed some basics of employment discrimination:[37] As set out in Longueépée v. University of Waterloo, 2020 ONCA 830, at para. 66, once the employee has demonstrated that an employer’s requirement is prima facie discriminatory, the employer has the burden of proving that:a. the standard was adopted for a purpose or goal that is rationally connected to the function being performed;
b. that it adopted the standard in good faith in the belief that it was necessary for the fulfilment of that purpose or goal; and
c. that the standard was reasonably necessary to accomplish its purpose, in the sense that the employer cannot accommodate the person without undue hardship.
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