Partial Discrimination Is Still Discrimination Court Rules

By Daniel Standing, LL.B., Editor at First Reference Inc.

In 2023 ONCA 364, the Court of Appeal for Ontario has written the latest chapter in an ongoing legal saga about whether the ground of discrimination of “citizenship” is distinct from the concept of “permanent residence.” In the jurisprudential sense though, it is a first chapter, since this is the first time the interpretation of discrimination in employment on the basis of citizenship has come before the Court.

It concerns the plight of an international student who, having lied on his job application, was offered a job, only to have it rescinded when he was unable to give proof of eligibility to work permanently in Canada. His human rights complaint alleged discrimination on the basis of citizenship. We’ve previously looked at the decision of the Divisional Court, which concluded that the Human Rights Tribunal of Ontario was wrong to decide the two concepts were synonymous in determining there was a prima facie claim of employment discrimination based on citizenship.

On appeal, the central question was whether the Tribunal’s finding of direct discrimination was reasonable. Unlike in the court below, the Court of Appeal ruled that it was.

The court said that by excluding people who aren’t permanent residents from jobs, the company’s policy was still discriminatory on the basis of citizenship. The court said it’s a basic principle of human rights law that “policies that only partially discriminate on the basis of a prohibited ground are not saved on the basis that they only partially discriminate.” That those eligible to work in Canada permanently weren’t affected by the policy didn’t cure it. People in the same situation as the student had three years of eligibility to work, yet were cut out of the workforce because of the policy.

Parsing the citizenship/residence conundrum was a complicated endeavour, as evidenced by the court’s statutory interpretation and analysis of federal immigration law, which lent credence to the Tribunal’s conclusion.

Going forward, this decision is liable to be one of the leading cases of citizenship discrimination.