Further to our last article where we discussed the caution employers should exercise when requesting proof of citizenship or permanent residency status in the job application process, employers may soon face an additional level of scrutiny in connection with job postings and applications.

Ban on the “Canadian Experience” Requirement

The Ontario government has proposed to make legislative changes to the Employment Standards Act, 2000 (the ESA), which are set to come into force on a date to be proclaimed by the Lieutenant Governor. We have previously written in detail about the legislative changes that are already in force.

As part of such changes, employers will be prohibited from including requirements relating to Canadian work experience in job postings or associated application forms:
Canadian Experience
8.3 (1) No employer who advertises a publicly advertised job posting shall include in the posting or in any associated application form any requirements related to Canadian experience . . . .

Exception
(2) Subsection (1) does not apply to a publicly advertised job posting that meets such criteria as may be prescribed [by regulation] . . . .

This new legislation appears to be aimed at reducing barriers for newcomers in Ontario seeking employment and to allow those who have work experience outside of Canada to be considered for job interviews.

Key Takeaways

Though this provision is not in force yet, employers can preemptively review their hiring policies to ensure compliance with this change. Employers can remove Canadian work requirements from their job advertisements and application forms, which will also assist in avoiding claims of discrimination. It is important to note that “Canadian experience” is not currently defined in the ESA, nor is “publicly advertised”. As we learn more, we will provide further updates.

The author would like to acknowledge the support and assistance of Lucia Chiara Limanni, an articling student in law.

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Author Bio

Khalfan Khalfan is a Partner, in the Employment & Labour Group, at Stikeman Elliott LLP. Khalfan practices all aspects of employment and labour law on behalf of employers in Ontario and advises clients on a broad range of issues including employment standards, employee privacy, corporate immigration, human rights, occupational health and safety, and employee terminations.

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