Facts
H was an international student studying in Canada. At the relevant time, he was neither a Canadian citizen, nor a permanent resident. Upon graduation, H was entitled to a postgraduate work permit (“PGWP”) that would enable him to legally work full-time, anywhere in Canada, for any employer, for up to three years. H applied for a job with IO to commence after his graduation. IO had a hiring policy that required permanent eligibility to work in Canada, established either by Canadian citizenship or permanent residency. H was the top candidate and IO offered him the job, conditional upon him providing proof that he satisfied the requirement of permanent eligibility to work in Canada. After H disclosed that he was not a Canadian citizen or permanent resident, IO rescinded the job offer.
H applied to the Human Rights Tribunal of Ontario, alleging discrimination on the prohibited ground of citizenship. The Tribunal ruled in H’s favour and awarded him over $120,000 in damages. It concluded that IO discriminated against H on the basis of citizenship by imposing an employment condition that excluded PGWP-holders, who were all non-citizens. IO brought an application for judicial review before the Divisional Court. A majority of the Divisional Court found that the Tribunal decision was unreasonable and that the claim of discrimination based on citizenship had not been established. The majority stated that the Tribunal conflated citizenship with permanent residency and created a new ground of discrimination based on permanent residency that was not protected by the Ontario Human Rights Code. A dissenting judge concluded that the Tribunal decision was reasonable and would have dismissed the application. H appealed the decision to the Court of Appeal.
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