Docket: IMM-7236-14
Citation:
2015 FC 1075
Toronto, Ontario, September 15, 2015
PRESENT: The
Honourable Mr. Justice O'Reilly
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BETWEEN:
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CANADIAN
REFORMED CHURCH OF CLOVERDALE B.C.
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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
I.
Overview
[1]
In 2014, the Canadian Reformed Church of
Cloverdale, British Columbia submitted a Labour Market Impact Assessment in
order to hire a translator from outside Canada. Employment and Social
Development Canada (ESDC) dismissed the assessment because the Church had not shown
that it had made reasonable efforts to hire or train a Canadian employee.
[2]
This was the Church’s second application. A
previous assessment that had been turned down because the wage offered was too
low. The Church then increased the wage and re-advertised the position,
identifying the location of work as Surrey, BC.
[3]
ESDC refused the Church’s second assessment because
the advertisements did not include the business address where the translator
would be working, even though ESDC had previously told the Church that this was
a mandatory requirement.
[4]
The Church argues that the ESDC officer who
dealt with its proposed assessment fettered her discretion by relying exclusively
on internal guidelines, rather than on the language in the applicable
regulations. It also maintains that the officer rendered an unreasonable
decision because she required that the advertisements include a specific
business address rather than a general location where the work would be done. The
Church asks me to quash the officer’s decision and order another officer to
reconsider its assessment.
[5]
I agree with the Church that the officer
fettered her discretion and arrived at an unreasonable decision. Therefore, I
will allow this application for judicial review.
[6]
A decision that is the product of a fettering of
discretion is, by definition, unreasonable (Frankie’s Burgers Lougheed Inc v
Canada (Minister of Employment and Social Development), 2015 FC 27 at para
24). Therefore, I need only consider whether the officer fettered her
discretion.
II.
Did the officer fetter her discretion?
[7]
In her affidavit, the officer explains that
different business names and addresses for the Church appeared in documents
submitted to ESDC. She informed a representative of the Church of the usual
advertising requirements, including the minimum duration and the need for a
business address. In another affidavit, an ESDC director added that the
regulatory requirements will “typically not be
satisfied” if the advertisements for the position are not accurate and
complete.
[8]
The Church’s representative states that the
officer only discussed with him the need for a business address in job
advertisements. He also points out that the Church’s business address was set out
on its website, and that advertisements typically included map links to the
place of work.
[9]
One of the factors that must be taken into
account in determining whether to approve an assessment is whether the employer
“has made, or has agreed to make, reasonable efforts”
to hire or train Canadian citizens or permanent residents (s 203(3)(e)
of the Immigration and Refugee Protection Regulations, SOR/2002-227 –
see Annex). The applicable guidelines (Stream for Higher-skilled Occupations)
stipulate that advertisements “must include the . . .
business address”.
[10]
Guidelines can serve as a useful benchmark when interpreting
regulatory requirements, but they cannot be treated as binding (Bajwa v
Canada (Minister of Citizenship and Immigration), 2012 FC 864 at para 44; Ishaq
v Canada (Minister of Citizenship and Immigration), 2015 FC 156 at para 51;
Frankie’s Burgers Lougheed Inc v Canada (Employment and Social Development),
2015 FC 27 at para 92).
[11]
In my view, the record shows that the sole
reason why the officer refused the Church’s assessment was because of the
absence of a business address in the advertisements. Her notes to file state
simply that the assessment was refused because the Church had not met the minimum
advertising requirement of listing a business address. The officer did not determine
whether the Church had actually made reasonable efforts to hire or train a
Canadian in accordance with the regulatory standard but rather rejected the
assessment for the solitary reason that the advertisements lacked a business
address. The officer appears to have treated the guidelines as mandatory
obligations.
[12]
While the officer was entitled to consider the
absence of a business address as a factor in the exercise of her discretion, that
was not a sufficient basis in the circumstances for rejecting the Church’s
assessment. The officer’s approach amounted to a fettering of her discretion.
III.
Conclusion and Disposition
[13]
By treating the applicable guidelines as
mandatory requirements, the officer fettered her discretion and arrived at an
unreasonable decision to reject the Church’s assessment. I must, therefore,
allow this application for judicial review and order another officer to
reconsider the assessment. Neither party proposed a question of general
importance for me to certify, and none is stated.
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