Docket: IMM-2659-14
Citation:
2014 FC 941
Vancouver, British Columbia, October 3, 2014
PRESENT: The
Honourable Madam Justice Mactavish
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BETWEEN:
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FRONTLINE FRAMING LTD.
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Applicant
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and
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THE MINISTER OF EMPLOYMENT AND SOCIAL DEVELOPMENT CANADA
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Respondent
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JUDGMENT AND REASONS
[1]
Frontline Framing Ltd. seeks judicial review of
an Employment and Social Development Canada Officer’s refusal to issue a
positive Labour Market Opinion on the grounds that the company had not demonstrated
the existence of a labour shortage for experienced carpenters able to provide
framing services for residential properties. A positive Labour Market Opinion
would have allowed the company to hire a non-Canadian under the Temporary
Foreign Worker Program.
[2]
The company also seeks an extension of the
statutory time limit for the bringing of this application.
I.
The Extension of Time
[3]
Reviews of decisions made under the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 are to be conducted in
a summary fashion. Paragraph 72(2)(b) of the Act requires that an
applicant commence its application for judicial review within 15 days of
receiving the decision in issue. This application was not filed until 41 days
after the company received the decision now being challenged. As a result, the
application was commenced 26 days late.
[4]
To be entitled to an extension of time, the
applicant must establish first, that it had a continuing intention to pursue
the application; second, that there is some merit to the application; third,
that no prejudice to the respondent arises as a result of the delay; and
fourth, that there is a reasonable explanation for the delay: Canada
(Attorney General) v. Hennelly, (1999)167 F.T.R. 158, 244 N.R. 399
(F.C.A.).
[5]
The underlying consideration when deciding a
request for an extension of time is that justice be done between the
parties: Grewal v. Canada (Minister of Employment and Immigration),
[1985] 2 F.C. 263, 63 N.R. 106.
[6]
Given that leave was granted in this case, I am
prepared to accept that it is arguable that there is some merit to the
application. The respondent has not argued that it was prejudiced by the delay,
with the result that the third requirement of the Hennelly test has also
been met.
[7]
There is, however, no evidence before the Court
to demonstrate that the company had a continuing intention to pursue the
application, or that it has a reasonable explanation for the delay.
[8]
The decision under review in this case does not finally
determine the rights of the applicant for all time. It remains open to the
company to reapply for a Labour Market Opinion, should one still be required,
and there is no evidence before me to show that doing so will cause the company
hardship. In these circumstances, the motion for an extension of time is
refused.
II.
The Merits of the Application
[9]
Given my conclusion with respect to the
extension of time, it is not strictly speaking necessary to address the merits
of the case. Had it been necessary to do so, however, I would have dismissed
the application on its merits.
[10]
It was reasonably open to the Employment and
Social Development Canada Officer to conclude that Frontline Framing Ltd. had
not demonstrated the existence of a labour shortage, particularly in light of
the admission by one of the company’s owners that it had been able to hire
Canadian carpenters on several occasions in the past. The company’s real
problem seemed to be that these individuals left the company after only three
or four months.
[11]
Indeed, the owner acknowledged that the company
had “retention issues”, and that she hoped that
hiring a non-Canadian under the Temporary Foreign Worker Program would help Frontline
Framing Ltd. achieve a measure of stability in its workforce. That is not the
purpose of the Temporary Foreign Worker Program, and it was thus entirely
reasonable for Employment and Social Development Canada to refuse the
application on that basis.
III.
Conclusion
[12]
The application for judicial review is
dismissed. I agree with the parties that the case does not raise a question for
certification.
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