On July 15, 2013, the Ontario Human Rights Commission (“OHRC”) released its Policy on Removing the “Canadian Experience” Barrier (the “Policy”). The purpose of the Policy is to address the fact that new immigrants, with university educations and/or work experience, are denied opportunities for jobs or career advancement because they lack “Canadian Experience” (i.e. Canadian based work experience) and their foreign educational qualification or work experience are not recognized. The Policy arose because of academic studies and Statistics Canada results and the OHRC’s own survey which demonstrate, on an empirical basis, the obstacles immigrants face in securing employment because they lack Canadian based experience and this is arbitrarily used against them to deny them job opportunities and/or advancement.
Section 5 of the Ontario Human Rights Code (“Code”) governs discrimination in employment. The OHRC has said that a distinction based on “where” a person acquired their work experience may directly and/or indirectly discriminate against an individual on the prohibited grounds of “race, ancestry, colour, place or origin and ethnic origin”.
The OHRC has stated that its position is “that a strict requirement for Canadian Experience is prima facie discrimination (discrimination on its face) and can only be used in very limited circumstances. The onus will be on employers and regulatory bodies to show that a requirement for prior work experience in Canada is a bona fide requirement. That is:
- Was the standard adopted for a purpose or goal that is rationally connected to the function being performed;
- Was the standard adopted in good faith, in the belief that it is needed to fulfill the purpose or goal; and
- Is the standard reasonable necessary to accomplish its purpose or goal, because it is impossible to accommodate the claimant without undue hardship.
The OHRC has stated, “for an employment or accreditation requirement, such as having Canadian experience to be found to be legitimate or “bona fide”, an organization must show that they have made the requirement as inclusive as possible and that they have taken steps to accommodate those covered by the Code.
If it’s not a bona fide requirement, then employers should assess ALL prior work experience, regardless of where it was obtained.
The OHRC offers best practices for Ontario based employers to consider for “recruitment, selection, hiring, accreditation and advancement” to ensure potential obstacles are identified and removed to bring compliance with the Policy. Employers in Ontario are reminded to have a comprehensive anti-discrimination policy that takes the Policy into account.
The Policy should be commended for addressing a systemic issue that many new immigrants face once they arrive in Canada. The bona fide requirement legal analysis should offer guidance to employers across Ontario in determining whether their requirement for Canadian experience is legitimate or not. However, we will only get a true sense on how the Policy is interpreted when the first few cases make their way through the Ontario Human Rights Tribunal.
Simon Heath LL.B, M.I.R.
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