Docket: IMM-3644-14
Citation: 2015 FC 507
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BETWEEN:
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EURO RAILINGS
LTD
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Applicant
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and
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THE MINISTER OF
EMPLOYMENT AND SOCIAL DEVELOPMENT
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Respondent
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REASONS
FOR JUDGMENT
PHELAN J.
I.
Introduction
[1]
This is the judicial review of a decision by a
Program Officer, Foreign Worker Program [Officer] wherein the Applicant was
refused a positive labour market opinion [LMO] to hire a foreign worker – a
highly skilled welder for a specialized metal railing business. A LMO is
required as part of the approval to hire a foreign worker and must generally
show a labour shortage in the particular trade.
II.
Background
[2]
To say that outlining the facts in this case is
a challenge is to downplay the word “challenge”. The Certified Tribunal Record
can only be described as a mess. Its inadequacy was compounded by its
incompleteness remedied only recently when the Officer found documents behind a
cabinet.
[3]
The record in this case was sufficiently
deficient that the Respondent, without leave of the Court, filed both an affidavit
from the Officer purporting to explain the reasons for her decision and an
affidavit from the Officer’s supervisor [Director] in part explaining the
program as she saw it and the duties of an officer assessing labour markets.
Both affidavits are submitted to buttress the Officer’s decision – to make up
for the obvious deficiencies in it.
[4]
The Applicant was rightly concerned that the
Respondent was trying to manipulate the process of judicial review. At the
hearing I ordered the Director’s affidavit struck from the record as improper
evidence in a judicial review. I neglected to similarly strike the Officer’s
affidavit for the same reason. The final judgment will do so.
[5]
The process at issue is governed by s 203(3) of
the Immigration and Refugee Protection Regulations, SOR/2002-227.
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203. (3) An opinion provided by the
Department of Employment and Social Development with respect to the matters
referred to in paragraph (1)(b) shall, unless the employment of the
foreign national is unlikely to have a positive or neutral effect on the
labour market in Canada as a result of the application of subsection (1.01),
be based on the following factors:
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203. (3)
Le ministère de l’Emploi et du Développement social fonde son avis relatif
aux éléments visés à l’alinéa (1)b) sur les facteurs ci-après, sauf
dans les cas où le travail de l’étranger n’est pas susceptible d’avoir des
effets positifs ou neutres sur le marché du travail canadien en raison de
l’application du paragraphe (1.01) :
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(a) whether the employment of the foreign
national will or is likely to result in direct job creation or job retention
for Canadian citizens or permanent residents;
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a) le travail de l’étranger entraînera ou
est susceptible d’entraîner la création directe ou le maintien d’emplois pour
des citoyens canadiens ou des résidents permanents;
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(b) whether the employment of the
foreign national will or is likely to result in the development or transfer
of skills and knowledge for the benefit of Canadian citizens or permanent
residents;
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b) le travail de l’étranger entraînera ou
est susceptible d’entraîner le développement ou le transfert de compétences
ou de connaissances au profit des citoyens canadiens ou des résidents
permanents;
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(c) whether the employment of the
foreign national is likely to fill a labour shortage;
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c) le travail de l’étranger est susceptible
de résorber une pénurie de main-d’oeuvre;
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(d) whether the wages offered to the
foreign national are consistent with the prevailing wage rate for the
occupation and whether the working conditions meet generally accepted
Canadian standards;
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d) le salaire offert à l’étranger correspond
aux taux de salaires courants pour cette profession et les conditions de
travail qui lui sont offertes satisfont aux normes canadiennes généralement
acceptées;
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(e) whether the employer will hire or
train Canadian citizens or permanent residents or has made, or has agreed to
make, reasonable efforts to do so;
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e)
l’employeur embauchera ou formera des citoyens canadiens ou des résidents
permanents, ou a fait ou accepté de faire des efforts raisonnables à cet
effet;
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(f) whether the employment of the
foreign national is likely to adversely affect the settlement of any labour
dispute in progress or the employment of any person involved in the dispute;
and
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f) le travail de l’étranger est susceptible
de nuire au règlement d’un conflit de travail en cours ou à l’emploi de toute
personne touchée par ce conflit;
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(g) whether the employer has fulfilled
or has made reasonable efforts to fulfill any commitments made, in the
context of any opinion that was previously provided under subsection (2),
with respect to the matters referred to in paragraphs (a), (b)
and (e).
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g) l’employeur a respecté ou a fait des
efforts raisonnables pour respecter tout engagement pris dans le cadre d’un
avis précédemment fourni en application du paragraphe (2) relativement aux
facteurs visés aux alinéas a), b) et e).
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[6]
The Applicant is a specialty custom railing company.
It began advertising for a welder in October 2013, requesting someone with five
years’ experience. Although the Applicant received numerous applications for
the welding position, 90% were from individuals who did not meet the
requirements.
[7]
The Officer informed the Applicant on April 9,
2014, of the negative LMO. The LMO letter was not sent that day so as to permit
the Applicant’s representative to make submissions. The submissions, made the
next day, were to the effect that there was a labour shortage for welders and
this occupation was listed as an occupation on the Federal Skills Trade Program
[FSTP] indicating a need for such skills in Canada.
[8]
The LMO refusal letter was based on:
•
the absence of a demonstrable labour shortage in
this occupation; and
•
Service Canada labour market information and
analysis for the Ontario region indicates there is no demonstrable shortage of
workers in this occupation in Ontario.
[9]
The Applicant has raised a breach of procedural
fairness in this decision; firstly, because the decision had been made on April
9 despite accepting submissions on April 10; and, secondly, the reasons were
either non-existent or inadequate. The first issue is a form of bias, the
second is either part of a challenge to the reasonableness of the decision or a
challenge to the procedural right to reasons itself – inadequacy of reasons is
no longer a standalone grounds for review.
[10]
The overarching challenge is to the procedural
fairness of the decision. As such, the standard of review is correctness (Canada
(Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339).
[11]
The Applicant, particularly in oral argument,
made a number of submissions suggesting that the record of decision had been
manipulated. That allegation was not established in my view. The Respondent
did attempt to manipulate the judicial review with improper evidence. That has
been dealt with. The Applicant should be reminded of the saying “Do not attribute to malice that which can be explained by
incompetence”.
[12]
More importantly, turning to the substantive
challenge, this Court in Frankie’s Burgers Lougheed Inc v Canada (Employment
and Social Development), 2015 FC 27, while holding that the procedural
rights on a LMO application are minimal, held that an applicant has a right to
reasons that are intelligible.
[13]
This means more than the grammar and syntax
produce coherent sentences. It means that the reasons are intelligible against
the background of the material before the Officer.
[14]
In this case, the reasons are not intelligible
against the background of the material before the Officer. An applicant is at
least entitled to an explanation – short, sharp and crisp – for the rejection
of key evidence.
[15]
The Officer had before her the NOC list
indicating that welders were in demand in Canada. The Officer also had before
her evidence from the Applicant showing the efforts to secure sufficiently
skilled welders and the inability to find such persons.
[16]
The Respondent’s counsel has suggested that the
reason for such an inability is because the Applicant was offering too low a
wage. Not only does the Officer not say this but notes that the hourly rate
criteria is “Met”. The Applicant was entitled to
at minimal an explanation of why its concrete evidence was rejected.
[17]
The Officer, in her post-decision affidavit,
attempts to explain why the NOC evidence – a basis upon which people seek work
visas and on which they are granted – was rejected. Such evidence is too
convenient and improper.
[18]
This is a decision which requires the Court’s
intervention.
III.
Conclusion
[19]
The judicial review will be granted, the
decision will be quashed and the matter remitted back to be decided forthwith
by a different officer.
[20]
The Applicant asks for costs. In the normal
course, costs would not be granted. However, to indicate to the Respondent the
Court’s concern for its filing post-decision evidence, the partial award of
$2,500.00 will be ordered.
[21]
There is no question for certification.
"Michael L. Phelan"
Ottawa, Ontario
April 21, 2015
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