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Immigration - General

. Imperial Oil Limited v. Haseeb

In Imperial Oil Limited v. Haseeb (Ont CA, 2023) the Court of Appeal, in an Ontario human rights case, reviewed the immigration Post-Graduate Work Permit (“PGWP”) program:
[2] Ontario’s Human Rights Code, R.S.O. 1990, c. H.19 (the “Code”), prohibits discrimination in employment on the basis of citizenship. In the time period relevant to this appeal, the appellant was not a Canadian citizen or permanent resident (he has since become a Canadian citizen). He was an international student in Canada about to graduate with a mechanical engineering degree. As a matter of federal immigration law, upon graduation, he would be entitled to a Post-Graduate Work Permit (“PGWP”), which would allow him to work full-time, anywhere in Canada, for any employer, for up to three years. This entitlement forms part of a scheme of immigration legislation and regulation designed to attract skilled workers to settle in Canada, become permanent residents, and ultimately, Canadian citizens.

[3] During his last semester of university, the appellant applied for an entry-level engineering job with Imperial. Imperial had a policy that required, as a condition of employment, permanent eligibility to work in Canada, as established by proof of either Canadian citizenship or permanent resident status. The appellant was the top candidate for the job. Imperial offered him the job, conditional on permanent eligibility to work in Canada, as established by proof of either Canadian citizenship or permanent resident status. When the appellant disclosed that he was neither a Canadian citizen nor a permanent resident, and would have to initially work on the three-year PGWP, Imperial withdrew its job offer.

[4] For reasons I explain below, I conclude that the tribunal’s decision that Imperial discriminated against the appellant on the basis of citizenship was reasonable. I would allow the appeal and restore the tribunal’s order.

(1) The appellant’s status in Canada and eligibility to work

[5] In the fall of 2014, the appellant was a student in his final semester of a mechanical engineering degree at McGill University. He was scheduled to complete his studies in December 2014, and to formally graduate in January 2015.

[6] The appellant was, at that time, a citizen of Pakistan. He was in Canada on a student visa. Upon graduation from his university program, he would be eligible for a PGWP for a period of three years. The appellant’s entitlement to a PGWP was conditional only on his providing a letter from the university attesting to the completion of his degree. The PGWP would permit him to work full-time, for any employer, anywhere in Canada. That is, it would give him an unrestricted right to work in Canada, subject only to the three-year time limit.

[7] The PGWP program is part of a federal immigration program aimed at attracting international students to attend Canadian universities and colleges, in order to provide a source of skilled labour to Canada. The PGWP program is designed as a pathway to Canadian citizenship.[1] It has three stages. First, while an international student is still in school, federal immigration law permits them to work up to 20 hours per week during academic sessions, and full-time during scheduled breaks in academic sessions. Second, once an international student, like the appellant, graduates, they are eligible for a PGWP, which allows them to work full-time, for any employer, anywhere in Canada, for up to three years. Third, once the individual is working under the PGWP, they are eligible to apply for permanent resident status from within Canada after they have one year of full-time work experience in Canada. The finding of the tribunal, based on the evidence of immigration experts who testified before it, was that if all went smoothly, a PGWP-holder would obtain permanent residency status within 6-18 months of applying for it.
The court further considers the specific Ontario HRC to federal immigration law context at paras 140-158.

. R. v. Berhe

In R. v. Berhe (Ont CA, 2022) the Court of Appeal considers the degree of knowledge of immigration consequences that may effect the validity of a guilty plea:
[68] In R. v. Wong, 2018 SCC 25, [2018] 1 S.C.R. 696, the Court recognized that a plea will be uniformed if the accused person was unaware of a legally relevant collateral consequence – i.e., an immigration consequence: see also R. v. Girn, 2019 ONCA 202, 145 O.R. (3d) 420, at para. 52 and R. v. Davis, 2020 ONCA 326, 391 C.C.C. (3d) 385, at para. 10. A plea may be withdrawn on this basis if it is established that the accused person suffered subjective prejudice by proving that they would have either opted for a trial, or pleaded guilty with different conditions: Wong, at para. 6.

(a) The Knowledge Component

[69] In my view, Mr. Berhe has failed to establish that he lacked the necessary degree of knowledge about his immigration status. This issue has been addressed in a number of decisions from this court.

[70] In R. v. Shiwprashad, 2015 ONCA 577, 328 C.C.C. (3d) 191, the appellant was a permanent resident who committed a number of offences. His penultimate convictions resulted in him being declared inadmissible to Canada on the basis of “serious criminality” under s. 36(1) of IRPA. Like Mr. Berhe, the appellant’s removal order was stayed for a four-year period on certain conditions, including that he not commit any criminal offences, and that he observe certain reporting requirements if charged and/or convicted of a criminal offence. The stay order included the following:
IMPORTANT WARNING

This stay or removal is cancelled and your appeal is terminated by operation of law and you may be removed from Canada, if you are convicted of another offence referred to in subsection 36(1) of the Immigration and Refugee Protection Act (sentence of more than six months imposed or punishable by a term of imprisonment of at least ten years) before your case has been finally reconsidered.
[71] In dismissing the appeal, Weiler J.A. said, at para. 3: “While the appellant may not have been aware of the precise extent of his jeopardy at the time he pleaded guilty, he knew that deportation was a possible consequence.”

[72] In Girn, Watt J.A. observed, at para. 75, that the courts have “resisted imposition of a fixed quantum or standard of information necessary to characterize the plea as ‘informed’. Instead, the jurisprudence counsels a case-by-case analysis consistent with both the subjective nature of guilty pleas and the level of understanding of the consequences of entry of guilty pleas generally.” He further wrote that “[n]o case suggests that knowledge of ‘consequences’ includes knowledge of appellate rights and their limitations”: at para. 75; see also R. v. Coffey, 2017 BCCA 359, at para. 44. In Girn, like Shiwprashad, the court concluded that the appellant had sufficient information to know that further criminality would impact negatively on his immigration status: at para. 78.

....

[76] In short, Mr. Berhe had sufficient knowledge of the negative immigration implications of pleading guilty to criminal harassment, on not just one, but two occasions. This case is different from R. v. Davis, 2020 ONCA 326, 391 C.C.C. (3d) 385, in which the court concluded that the appellant had been misled as to the impact of his guilty plea on his immigration status by his trial counsel erroneously advising him that he would suffer no immigration consequences: at para. 17. That did not happen in this case.



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Last modified: 26-05-23
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