A Closer Look at Bill 149 Part 2: Banning Canadian Experience Requirements

Ontario’s Working for Workers Four Act, 2023 (“Bill 149”) received royal assent on March 21, 2024, but many of its new employment standards requirements will only come into force as changes to Ontario's Employment Standards Act, 2000 (the "ESA") on “a date to be proclaimed”.

The Process Legal’s previous blog tackled some of the implications of Bill 149 for employers’ uses of artificial intelligence (“AI”) in employee recruitment and hiring.

In this follow-up blog, I take a closer at a different employment standard introduced by Bill 149: the ban on Canadian experience requirements in job postings and application forms. Once in force, the new employment standard will read:

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. 

There will be exceptions to this requirement, which will be set out in regulations yet to be released by the Government of Ontario.

Existing restrictions on Canadian experience requirements

The Government of Ontario has proposed that these new restrictions are intended to ban employers from including Canadian experience as a requirement for employment.

However, as noted by opposition party critics, this restriction on employers’ job postings and applications already likely existed under the Ontario Human Rights Code. Specifically, in its 2013 Policy on Removing the “Canadian Experience” barrier, the Ontario Human Rights Commission made known its view 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.”

This means that Ontario employers already have good reason for ensuring that job advertisements and applications do not include requirements for Canadian experience.

What has changed as a result of Bill 149.

Bill 149 introduces two key changes for employers to remain aware of when it comes to Canadian experience requirements:

1. The bona fide exception: Unless new ESA regulations state otherwise, employers will be banned from including requirements for Canadian experience in job postings and applications even if a bona fide reason for the requirement exists; and

2. ESA enforcement powers: Employers suspected of breaching this new ESA requirement may also now be subject to the complaint and enforcement mechanisms of the ESA, which can include being subject to an investigation by Ontario’s Ministry of Labour, Immigration, Training and Skills Development.   

   
   

Best practices

In its Policy on Removing the “Canadian Experience” barrier, the Ontario Human Rights Commission lists a number of best practices for employers when it comes to meaningfully ensuring that Canadian experience does not serve as a barrier to employment. Those best practices broadly include:

• Identifying and addressing barriers faced by employees who are newcomers to Canada.

• Adopting flexible and individualized approaches to assessing employees’ skills and abilities, including through short-term contracts and probationary periods.

• Identifying employee skill gaps and providing employees with ample training and mentorship opportunities to address these gaps.

Contact inquiries@theprocesslegal.com to book a consultation on preparing your organization for the changes brought about by Bill 149.