In a prior blog article, we wrote about an important decision from the Human Rights Tribunal of Ontario (“HRTO”) concerning discriminatory hiring practices. That case was Haseeb v. Imperial Oil, and the decision involved Imperial Oil’s policy of requiring all project engineer job applicants to hold either Canadian citizenship or permanent residency in order to be eligible for employment.
This practice meant that qualified individuals living legally in Canada, and eligible to work pursuant to a government-issued permit, were nonetheless barred from employment with Imperial Oil. Haseeb was one such person who, according to Imperial Oil, was not suitable for employment. Haseeb applied anyway and lied about his residency status when asked. Imperial Oil eventually offered Haseeb a job, only to later revoke its offer when Haseeb disclosed his actual residency status. In response, Haseeb took Imperial Oil to the HRTO alleging the Company’s actions breached the Human Rights Code (the “Code”).
In an interim decision issued in July 2018, the HRTO found that by instituting a hiring requirement for “permanent residency”, Imperial Oil had violated s. 5(1) of the Code. The matter of a remedy for Haseeb, however, was put over for future hearing date.
Haseeb’s dishonesty
Almost a year later, the HRTO finally issued its decision on what penalty Imperial Oil would face for its hiring practice discrimination.
Imperial Oil sought to reduce its liability by arguing that Haseeb’s dishonesty during the hiring process should disentitle him from any remedy. The HRTO disagreed, pointing out that such a defence, if allowed, may set a dangerous precedent to allow employers to discriminate by proxy. As explained by the Tribunal:
…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. [emphasis added]
The damages order
When considering Haseeb’s remedy, the HRTO assessed damages pursuant to three separate heads: 1) lost income; 2) injury to dignity, feelings and self-respect; and 3) public interest.
For Imperial Oil, the most painful of these categories was lost income. Here the HRTO measured Haseeb’s lost income over a four-year period: from the date Haseeb was to have started work to about one month prior to the remedy hearing. Backing out Haseeb’s earned income during that same time, the HRTO ordered Imperial Oil pay Haseeb $101,363.16 in lost earnings.
The HRTO’s decision on this point is notable for employers, who often forget that the Tribunal does not follow judicial concepts of severance/reasonable notice when determining quantum of wage loss. Indeed, the HRTO felt the need to reiterate this point again in its decision, writing:
…it is well-established that in human rights cases, an award for lost income is not limited to the period of reasonable notice, as in a wrongful dismissal claim, but extends over such period of time as is required to restore an applicant to the position they would have been in but for the discrimination. [emphasis added]
Instead of reasonable notice, the HRTO will determine the period of assessment for income loss based on two factors:
the worker’s commitment to employment with the employer (the “applicant’s perspective”); and
the likely period the employer would have retained the services of the worker (the “employer’s perspective”).
Imperial Oil lost out on both sides of this equation. Haseeb led evidence that the position offered by the Company was his “dream job.” Likewise, an employer witness testified that Imperial Oil hires engineers specifically with the objective of maintaining their employment long-term. In light of this evidence, the HRTO had no objection to assessing Haseeb’s income loss over his suggested period of four years.
In addition to lost income, the HRTO further ordered that Imperial Oil pay Haseeb $15,000.00 for injury to dignity, feelings and self-respect (i.e. damages for the emotional impact of the discrimination itself, as opposed to related wage loss) and $3,997.54 in pre-judgment interest. All toll, that amounted to a bill of $120,360.70. No public interest remedy was awarded, however, as prior to the remedy hearing, Imperial Oil ceased its practice of requiring permanent residency for project engineer job applicants.
Lessons Learned
The Imperial Oil case stands as a stark reminder to all Canadian employers of the costs related to discriminatory hiring practices. Imperial Oil was required to pay out monies equal to almost 1.5 years’ pay to a job applicant it never even employed. The case also garnered significant media attention on a subject that hardly cast Imperial Oil in a favourable light. To avoid failing victim to a similar fate, employers are encouraged to review their hiring practices on a periodic basis and ensure that any specified job requirements or screening criteria are in strict compliance with human rights legislation.
This article was originally published on October 18, 2019 on First Reference Talks.
Vey Willetts LLP is an Ottawa-based employment and labour law boutique that provides timely and cost-effective legal advice to help employees and employers resolve workplace issues in the National Capital Region and across Ontario. To speak with an employment lawyer, contact us at: 613-238-4430 or info@vwlawyers.ca.