To commence a human rights complaint, the applicant must first have “standing”. Status to bring the complaint is allowed to any person who believes that their rights have been violated. The application must then seek a remedy available under the relevant code.
This issue is significant in Ontario and B.C. as these jurisdictions do not require a body such as the human rights commission to commence the complaint.
A claim of a public interest nature must be brought by the Ontario Human Rights Commission or a similar body in other jurisdictions. This is not an application that may be made by an individual.
There is a third alternative which allows, with the consent of the impacted person, another person or organization to file an application on behalf of the concerned person. 1
Ontario Court of Appeal on Standing
The Ontario Court of Appeal considered this issue in a recent decision. 2
The Ontario Code prohibits adverse treatment due to citizenship. In the relevant time period, the complainant did not have Canadian citizenship. He was in Canada as an international student and at the time of his application, he was soon to graduate from his degree program in mechanical engineering. Upon successful graduation, he was to be entitled to a work permit, known as a Post-Graduate Work Permit. {“PGWP”) This would allow him the right to work anywhere in Canada for up to three years. This was all part of a federal immigration program implemented to attract qualified persons to come to Canada, become permanent residents and then acquire citizenship.
While in his undergraduate program, the applicant applied for employment with Imperial Oil. The company then required that all persons hired show that they were permanently eligible to work in Canada. This could be accomplished by showing permanent resident status or citizenship. The applicant then had neither of these qualifiers. When he was offered employment, it was conditioned by this requirement. Initially he misled the company with his response. Ultimately he did disclose the truth as a consequence of which, the offer was rescinded.
The applicant was eligible for status under the PGWP as soon as he graduated, which again would allow him the right to work in Canada for a three year period. Once in this program, he could and did apply for permanent resident status. The evidence showed that this would normally take six to eighteen months. He did graduate in January of 2015, obtained the PGWP and permanent resident status in June of 2017 and became a citizen in March of 2022.
When he was denied employment by Imperial Oil, he explained to the company the above process, his expected three work permit and the road to citizenship as set out above.
Before the tribunal, Imperial had argued that its policy did not treat the applicant adversely due to citizenship, but rather was based on the need to work legally in Canada, that is, “immigration status” as permanent resident status was acceptable. The company also raised the question of standing to bring the complaint.
Standing
Imperial had argued that the applicant did not have standing to bring the complaint as he did not have the right to work in Canada at time he applied for employment. The Tribunal found for the applicant on this issue, a position which was sustained by the Court of Appeal. The Tribunal found the test for standing was the allegation that the human rights of the applicant had been violated. He must show that he has a direct interest at stake in the complaint. Further, it is clear that the Code protected pre-employment issues, including the interview process. The Court of Appeal noted:
As the tribunal noted, s. 34(1) of the Code provides for a broad grant of standing. Any person who “believes that any of his or her rights under Part I have been infringed” has standing to apply to the tribunal for a remedy. One could imagine scenarios where there is no factual basis for a person’s belief that their rights have been infringed, and on that basis the assertion of standing would be speculative. But that is not the case here.
The Court of Appeal also observed that the objective of the standing requirement is to ensure that the applicant have “ a real legal interest in the proceeding that they are seeking to vindicate, rather than just a “sense of grievance”… The facts showed that the applicant had such a direct interest in the employment practices of the company limiting employment to permanent residents and Canadian citizens. The Tribunal decision hence passed the test of a reasonable conclusion and was upheld. 3