Many immigrants who have chosen Canada as their home have settled in Ontario. Statistics Canada reports that in Toronto, “almost half of the population (47.3%) is foreign born, the highest share for any major city in the developed world, including New York, Miami and Sydney.”
Section 5 of the Code states that every person in Ontario has a right to be free from discrimination in employment based on race, ancestry, colour, place of origin and ethnic origin. People should not experience barriers to employment based on characteristics that are associated with any of these grounds.
Section 6 of the Code states that every person in Ontario has a right to be free from discrimination with respect to membership in any trade or occupational association or self-governing profession based on race, ancestry, colour, place of origin and ethnic origin. Therefore, the bodies that govern regulated professions and compulsory trades should avoid using membership or licensing criteria that could discriminate against people based on these grounds.
Discrimination under the Code can be direct: for example, an employer may refuse to grant a job to someone because of prejudices related to the person’s place of origin. But the Code also prohibits discrimination that results from requirements, qualifications or factors that may appear neutral but which have a negative effect on people identified by the Code. This is often called “adverse effect” or “constructive” discrimination. A job ad, hiring or accreditation process that limits the opportunity to people with Canadian experience can have an adverse impact on recent immigrants. Most newcomers to Canada will not yet have Canadian work experience, even though they may have relevant international experience and be qualified to do the job or be professionally accredited. One respondent to the OHRC’s survey stated:
The specifics of the experience outlined in the job advertisement could not possibly have been gained outside of Canada. For instance, most of the jobs in my field require that I have knowledge of the Canadian banking regulations which I obviously can’t have having not worked or been educated here.
A distinction based on where a person acquired their work experience may indirectly discriminate based on Code grounds such as race, ancestry, colour, place of origin and ethnic origin.
Barriers in the recruitment, selection and hiring of employees, or in the accreditation processes of regulatory bodies may result in systemic discrimination. Systemic or institutional discrimination consists of patterns in an organization’s behaviour, policies or practices that create or continue a position of relative disadvantage for people identified by the Code. These appear neutral on the surface, but can exclude people identified by Code grounds. Systemic or institutional discrimination can be a major barrier to newcomers to Ontario who are trying to find decent employment or become accredited members of their professions.
Example: A regulatory body requires all applicants to complete a 10- month internship program in Canada as a condition of the licensing process. Even though all applicants must meet this condition, many newcomers to Canada have a harder time getting internships because of characteristics associated with race, ancestry, colour, place of origin and ethnic origin. As a result, this requirement will likely have an adverse impact on newcomers.
The courts have emphasized the importance of ensuring “substantive equality” in human rights law. Substantive equality looks at the impact of laws, policies or actions on disadvantaged groups, and tries to make sure that rules, requirements or treatment do not indirectly draw distinctions based on prohibited grounds.
Section 23(1) of the Code prohibits employers from publishing or displaying employment ads or invitations to apply that directly or indirectly classify or indicate qualifications by a prohibited ground of discrimination. References to Canadian experience in job ads may discourage newcomers, who would otherwise be qualified for the position, from submitting an application. An employer that publishes ads that include requirements for Canadian experience risks violating the Code.
Section 23(2) of the Code prohibits using an employment application form or asking the applicant written or oral questions that directly or indirectly classifies them based on a prohibited ground of discrimination. At the application stage, employers should not ask whether a candidate has Canadian experience. Doing so may reveal Code-related characteristics about the applicant. Employers should only ask about the candidate’s relevant trade, professional or other qualifications and prior experience, regardless of where they got it.
Under section 23(3) of the Code, an employer might be able to ask about Canadian experience in a job interview or state that Canadian experience is preferred, but only if they can show that work experience in Canada is a legitimate requirement, and that providing accommodation would cause undue hardship. The legal test for such requirements is a high one and is set out below. Otherwise, employers should not ask questions about where an applicant got their experience.
Section 23(4) of the Code prevents an employer from using an employment agency to hire people based on preferences related to Code grounds. Some respondents to the OHRC’s survey said that the barriers they encountered were put in place by employment agencies. For example, one person wrote: “a number of jobs to which I applied directly were also on the portals of some recruiters and the recruiters did not shy away from saying that the employer is looking for people with Canadian work experience.” Section 23(4) prohibits an employer from using an employment agency to recruit, select, screen or hire people based on whether they have Canadian work experience.
Employers and regulatory bodies should assess all prior work experience, regardless of where it was obtained. Often, there are easy ways to assess a person's skills and abilities without having to contact a Canadian reference or insist on prior work experience in Canada.
Example: An employer is looking for a typist/receptionist. Even if the person received their training in another country, there are several options available to verify skills, including standardized tests (typing tests, for example), letters of reference or probationary periods.
Employment requirements and duties should be reasonable, genuine and directly related to doing the job. Similarly, in the case of regulatory bodies, accreditation requirements should be reasonable, genuine and directly related to the applicant’s competence. The OHRC’s position is that a strict requirement for “Canadian experience” is discriminatory on its face and can only be used in limited circumstances. The onus will be on employers and regulatory bodies to show that a requirement for Canadian experience is a bona fide requirement, based on the legal test set out below.
 Garnett Picot, “Immigrant Economic and Social Outcomes in Canada: Research and Data Development at Statistics Canada,” Statistics Canada, 2008, available online at: www.publications.gc.ca/collections/collection_2008/statcan/11F0019M/11f0019m2008319-eng.pdf (date retrieved: May 24, 2012)
 Section 11 of the Code allows the person or organization responsible for accommodation to show that the requirement, qualification or factor is reasonable and bona fide by showing that the needs of the group to which the complainant belongs cannot be accommodated without undue hardship. For more discussion, see the section entitled, “Legitimate employment requirements.”
 From C. Agocs, “Surfacing Racism in the Workplace: Qualitative and Quantitative Evidence of Systemic Discrimination” ” (2004) 3:3 Canadian Diversity 25 at 25. Other definitions have been offered, for example:
…practices or attitudes that have, whether by design or impact, the effect of limiting an individual’s or a group’s right to the opportunities generally available because of attributed rather than actual characteristics…. [from Action Travail des Femmes v. Canadian National (1984), 5 C.H.R.R. D/2327 (C.H.R.T.), aff’d (1987), 8 C.H.R.R. D/4210 (S.C.C.)
…systemic discrimination…results from the unintended consequences of established employment systems and practices. Its effect is to block employment opportunities and benefits for members of certain groups. Since the discrimination is not motivated by a conscious act, it is more subtle to detect and it is necessary to look at the consequences or the results of the particular employment system. [from National Capital Alliance on Race Relations v. Canada (Health and Welfare) (1997), 28 C.H.R.R. D/179 (C.H.R.T.) [at para. 164.]