1. RECRUITMENT AND
RETENTION OF IMMIGRANTS
IN YOUR WORKFORCE
An Employers’ Guide
Note: The information in this presentation is intended as an overview and is not provided, nor should be relied upon, as legal advice.

2. AGENDA
1. The Duty to Accommodate
2. ‘Canadian’ Experience
3. Over-qualification
4. Unpaid Internships

3. The Duty to Accommodate
The duty to accommodate requires employers to make
accommodations for employees in the workplace when two
requirements are met:
1. The accommodation is linked to an enumerated ground under
applicable Human Rights law.
2. It would not place undue hardship on the employer to provide the
requested accommodation.

4. Undue Hardship
Practical Examples:
Accommodation Required Undue Hardship
Allowing time off for parents to attend
a child’s appointment.
Allowing a driver with an alcohol
addiction to retain all original job
duties.
Purchasing an ergonomic keyboard
for an employee.
Firing of an a unrelated employee to
open a job for another.
Removing lifting requirements from
job duties.
Long leave times for the sole
employee of a mom and pop store.
Construction of a building entry ramp. Construction of a new building.

5. The Duty to Accommodate
in Action
• A teacher had back surgery; could not do the 30 minute drive to work.
• Requested to move to the school located around the corner from his home.
• The School Board refused and instead offered a teaching position where it
was short-staffed at a school located a 5-10 min drive or 15 minute bus ride
(which allowed the teacher an opportunity to stand, sit, stretch as necessary
to ease any back discomfort).
• Board’s accommodation was held to be reasonable.
• Was not the perfect or preferred accommodation, however, it met the
teacher’s needs.

6. ‘Canadian’ Work Experience
• The [Ontario Human Rights Commission’s] 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,
based on the legal test this policy sets out.
Source: 2013 Ontario Human Rights Commission’s Policy on Removing the “Canadian experience” barrier

7. Advice for Employers
1. Bona Fide Requirement: employers must be able to show that a
requirement for prior work experience is rooted in a legitimate
reason which is directly related to job performance.
2. Hiring: do not setup arbitrary barriers to entry; consider whether
what you require is actually domestic qualification or rather certain
skills that often are associated with domestic qualification.
3. Retention: Ensure that internal advance is not hampered by
artificial requirements for Canadian experience or qualifications.

8. Overqualification
“While I agree that over-qualification can provide a discriminatory
pretext, if a person is in fact over-qualified for a job, that fact can
create genuine, non-discriminatory reasons for not offering
employment…”
Reiss v. CCH Canadian Limited, 2013 HRTO 764

9. Dr. Sangha v. Mackenzie Valley Land and Water Board,
2007 FC 856
• Dr. Sangha had emigrated to Canada in 1996.
• He applied for a position in Yellowknife as a Regulatory Officer;
flown up from Vancouver and interviewed along with 11 others.
• Dr. Sangha was unsuccessful in the job competition. He scored
well, but it was decided that he was over-qualified and it was
thought due to the entry-level nature of the position he would
not be challenged, and would.

10. Dr. Sangha v. Mackenzie Valley Land and Water Board,
2007 FC 856
To prove discrimination, it had to be shown that:
1. he possessed the basic qualifications for the job;
2. he is a visible minority immigrant;
3. he is overqualified vis-à-vis the job in question;
4. the overqualified status was one of the reasons why he
was not hired; and
5. there is a correlation between visible minority immigrant
status and overqualified status.

11. Unpaid Internships
“The prevalence of unpaid internships is growing, but typically
these positions are illegal and violate the minimum employment
standards. It has been estimated that young workers engage in
over 300,000 illegal unpaid internships every year across
Canada and collectively forego tens of millions of dollars in
wages, vacation pay and contributions to Employment Insurance
and Canadian Pension Plan.”
Andrew Langille – Youth Worker Advocate

12. Unpaid Internships
Criteria for legal unpaid internships in Ontario:
1. The person must be receiving training.
2. The training is similar to that which is given in a vocational school.
3. The training is for the benefit of the intern. The intern receives some benefit
from the training, such as new knowledge or skills.
4. The employer derives little, if any, benefit from the activity of the intern
while he or she is being trained.
5. The training doesn't take someone else's job.
6. The employer isn't promising a job at the end of the training.
7. The intern has been told that they will not be paid for their time.

13. Results from MOL 2014
Summer Blitz
$48,543 assessed as
owing to employees.
Most common violations
were for:
• Minimum wage
• Vacation pay
• Public holiday pay

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