Dockets: IMM-2996-14
IMM-2997-14
Citation:
2015 FC 27
Ottawa, Ontario, January 8, 2015
PRESENT: THE
CHIEF JUSTICE
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Docket: IMM-2996-14
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BETWEEN:
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FRANKIE'S BURGERS LOUGHEED INC (DBA FATBURGER LOUGHEED)
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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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Docket: IMM-2997-14
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AND
BETWEEN:
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SETON FB LTD. DBA FATBURGER
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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]
These reasons concern two virtually identical
decisions by Ms. Nimira Sandhu, an officer with Employment and Social
Development Canada [ESDC], to refuse positive labour market opinions [LMOs]
sought by the Applicants.
[2]
The LMOs were sought in respect of the hiring of
foreign nationals, pursuant to the Temporary Foreign Worker Program [TFWP], as
food counter attendants at two restaurant locations operated by the Applicants
under the “Fatburger” banner. One of those locations is in Lougheed, British Columbia, while the other is located in Seton, Alberta.
[3]
The decision that is the subject of Court file
IMM-2996-14 pertains to the Lougheed location, while the decision that is the
subject of Court file IMM-2997-14 pertains to the Seton location.
[4]
The Applicants seek to have the officer’s
decisions set aside on the following grounds:
A.
The officer’s assessment was unreasonable,
including as it relates to the conclusions that the Applicants:
i.
should have made a greater effort to recruit
part-time workers to fill the vacant positions;
ii.
failed to demonstrate the existence of a labour
shortage; and
iii.
had not met the minimum advertising requirements
for the positions they were seeking to have filled.
B.
The officer failed to provide an opportunity to
address her concerns regarding the authenticity of certain advertisements that
were posted in respect of the restaurant in Seton, Alberta.
C.
The officer fettered her discretion in assessing
their applications, by not taking their particular circumstances into account
and by relying on operational guidelines issued by the ESDC in refusing those
applications.
[5]
For the reasons that follow, the application in
Court file IMM-2996-14 will be dismissed and the application in Court
file IMM-2997-14 will be granted, as set forth in the attached Judgment.
I.
Background
[6]
The Applicants are part of a related group of
companies that, in aggregate, operate restaurants in approximately 60 locations
in Western Canada. Approximately 16 of those restaurants are operated by
Frankie’s Burger Enterprises Inc. [Frankie’s] under the Fatburger banner in British Columbia, while approximately 18 of them are operated by Frankie’s under that
banner in Alberta.
[7]
In November 2013, Ms. Dianna Lasenby, the Senior
Concept Leader and President of Frankie’s, submitted applications to the
Department of Human Resources and Skills Development Canada [HRSDC] on behalf
of the Applicants for LMOs under the TFWP for unnamed temporary foreign
workers, to fill four food counter attendant [FCA] positions at the Lougheed location
and ten FCA positions at the Seton location. HRSDC has since been renamed the
Department of Employment and Social Development Canada [ESDC].
[8]
In support of those applications, Ms. Lasenby
provided documentary evidence of the unsuccessful efforts that she and a duly
authorized third party representative [Third Party] had made to recruit
Canadian citizens or permanent residents to fill the FCA positions.
[9]
In February 2014, in further support of the
applications, Ms. Lasenby provided supplementary documentation to show ongoing
efforts to recruit Canadian citizens or permanent residents to fill the FCA
positions.
[10]
In April 2014, Ms. Lasenby provided additional
evidence of such efforts.
[11]
Ms. Lasenby also spoke with the officer on
several occasions in March 2014 and on April 2, 2014. In those discussions, the
officer stated that she was assessing the applications based on the information
provided at the time they were submitted. She added that although ongoing
recruitment efforts are required, changes made to advertisements, such as
adding the addresses of the restaurant locations, would not change the
assessment of the applications, as originally filed.
[12]
The officer also expressed various concerns to
Ms. Lasenby. In particular, the officer was concerned that the advertisements
that had been included with the applications in November 2013 only mentioned
full-time positions, and did not mention the business addresses of the
restaurants in question. She was also concerned as to whether sufficient
efforts had been made to target underrepresented groups, as the applications
initially did not include supporting documentation or other information to
indicate how long the advertisements targeted at such groups had been posted.
In addition, the officer requested details regarding the individuals who had
applied for the advertised positions and the reasons why they were not hired.
II.
Relevant Legislation and ESDC Guidelines
[13]
The TFWP was established pursuant to the
Immigration and Refugee Protection Act, SC 2001, c 27, and the Immigration
and Refugee Protection Regulations, SOR/2002-227 [Regulations]. Its
implementation is carried out pursuant to various administrative arrangements
and related policies and procedures established between ESDC, Citizenship and
Immigration Canada [CIC] and the Canada Border Services Agency.
[14]
To work in Canada legally, a temporary foreign
worker must have a permit.
[15]
Pursuant to paragraph 200(1)(c) of the
Regulations, a CIC officer shall issue a work permit to a foreign national upon
the satisfaction of certain conditions. Those conditions include the making of
a positive determination under paragraphs 203(1)(a) to (e) of the Regulations.
For the purposes of this decision, the relevant provision in section 203 is
paragraph 203(1)(b), which requires the CIC officer to determine, on the basis
of an LMO from ESDC, whether the employment of the foreign national is likely
to have a neutral or positive effect on the labour market in Canada.
[16]
Pursuant to subsection 203(3), an LMO by an ESDC
officer shall be based on a consideration of the following seven factors:
(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;
(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;
(c) whether the employment of the foreign
national is likely to fill a labour shortage;
(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;
(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;
(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
(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).
[17]
For the purposes of these reasons, only two of
the foregoing factors are relevant namely, (c) and (e).
[18]
It bears underscoring that it is the decisions
of the ESDC officer refusing the LMOs that are the subject of the Applicants’
applications for judicial review in this Court.
[19]
Attached as Exhibit “A” to an affidavit filed by
Michele Morandini, Director, TFWP, Western and Territories Region, Citizen
Service Program Delivery Branch of ESDC, on behalf of the Respondent, is a
document downloaded from ESDC’s website, entitled Stream for Lower-skilled
Occupations [Guidelines]. That document is described as setting out ESDC’s
LMO advertising and recruitment requirements with respect to lower-skilled
occupations, the TFW stream that is relevant to these proceedings.
[20]
Among other things, the Guidelines state that
recruitment advertisements must include the business address, the terms of
employment and the location of work (local area, city or town). In addition,
they state that “[e]mployers must demonstrate that they
meet the advertising requirements by providing proof of advertisement and the
results of their efforts to recruit Canadian citizens and permanent residents
(e.g. and information to support where, when and for how long the position was
advertised).”
[21]
Under the heading "How to Apply", the
Guidelines stipulate that applicants for an LMO will be expected to meet the
minimum recruitment efforts.
III.
Standard of Review
[22]
The standard of review applicable to the issues
that have been raised regarding the reasonableness of the conclusions reached
by the ESDC officer is reasonableness (Dunsmuir v New Brunswick, 2008
SCC 9, at paras 51-53 [Dunsmuir].
[23]
The procedural fairness issue that has been
raised is reviewable on a standard of correctness (Dunsmuir, above at
paras 79 and 87; Canada (Minister of Citizenship and Immigration) v
Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, at para 43).
[24]
With respect to the fettering of discretion
issue that has been raised, it is not necessary to definitively determine
whether the standard of review is correctness or reasonableness, since the
result is the same: a decision that is the product of a fettered discretion
must per se be unreasonable (Stemijon Investments Ltd v Canada
(Attorney General), 2011 FCA 299, at paras 20-24).
IV.
Analysis
A.
Was the officer’s assessment unreasonable?
(1)
Overview
[25]
The officer’s virtually identical decisions to
refuse to issue the LMOs sought by the Applicants were communicated in what Ms.
Morandini described as being the “standard language”
used by ESDC to ensure consistency.
[26]
Those decisions were based on three principal
findings.
[27]
First, the officer determined that the
Applicants had not sufficiently demonstrated that there was a reasonable
employment need in their business for the jobs they posted, namely, full-time
jobs alone. This determination related to paragraph 200(5)(b) of the
Regulations, which requires an assessment of whether a job offer is consistent
with the reasonable employment needs of the employer, in the overall
determination of whether an offer of employment is genuine.
[28]
Second, the officer found that the Applicants
had not demonstrated that a labour shortage exists, as contemplated by
paragraph 203(3)(c) of the Regulations.
[29]
Third, the officer determined that the
Applicants had not demonstrated sufficient efforts to hire Canadian citizens or
permanent residents for the vacant positions, as contemplated by paragraph
203(3)(e) of the Regulations.
[30]
The Applicants submit that each of these
determinations was unreasonable.
[31]
In assessing the Applicants’ submissions, it
must be kept in mind that the overall focus of this Court’s review will be on
the reasonableness of the officer’s ultimate decisions to refuse to issue the
LMOs. Those decisions were made after the officer concluded that the Applicants
had not demonstrated that the employment of the unnamed foreign nationals they
sought to employ would likely have a neutral or positive effect on the labour
market in Canada, as required by paragraph 203(1)(b) of the Regulations.
[32]
The reasonableness of the officer’s overall
decision to refuse the LMOs will be considered at the end of this section, in
Part IV.A.(5) below, after considering the various submissions made by the
Applicants.
(2)
The officer’s conclusion regarding the need to
advertise for part-time positions
[33]
After stating that the Applicants had not
sufficiently demonstrated that there is a reasonable employment need for the
jobs that they had advertised, the officer provided the following explanation: “Service Canada is unable to issue a positive labour market
opinion for a position where the requirement(s) is/are limited to full-time
given that such conditions are not the norm for the industry and deemed to be
excessive.”
[34]
The officer elaborated upon her concern in her
Notes to file, where she stated the following: “Advised
[the Applicant] that the norm in the industry is PT and if [sic] she has
considered hiring PT staff? [The Applicant’s] response was that was not the
norm with Fatburger.” The officer’s Notes to file added that the
approximately 59% of the workforce is part-time and 41% full-time, with 61%
being between the ages of 15 and 24. Later, under the heading "DECISION:
REFUSE," the officer stated: “Not a reasonable
employment need (Norm in industry is PT – [Terms of employment] on ad’s [sic]
don’t list PT.” PT refers to part-time.
[35]
The Applicants submit that their failure to
advertise for part-time positions was not a valid basis for the officer to
refuse to issue an LMO. They assert that an employer must be given discretion
as to whether to seek full-time or part-time employees. In this regard, they
note that it may cost more to hire, train and schedule multiple part-time
employees, relative to hiring fewer full-time employees, and that the quality
and consistency of part-time employees’ work may be inferior to that of
full-time employees.
[36]
In support of their position, the Applicants
rely on Justice Zinn’s statement in Construction and Specialized
Workers’ v Canada (Citizenship and Immigration), 2013 FC 512, at para 142 [Specialized
Workers] that “an employer must be given some
latitude in its hiring even within the TFWP.” I agree with this as a
general principle, although I would add that, of course, it has limits and
cannot be extended to the point that it is inconsistent with the scheme set
forth in the Regulations. I also agree with Justice Zinn’s observation, in the
next sentence, that “[t]he real question is whether there
was anything before the officer from which he should reasonably have concluded
that the applicant had failed to make reasonable efforts to hire Canadians.”
[37]
In that case, Justice Zinn noted that there was
a labour shortage in the mining industry, that one of the respondents had an
application that was approved for the same project only 12 months earlier, and
that it and another respondent had both engaged in recruitment. It was readily
apparent from these observations that Justice Zinn was satisfied that there was
not in fact anything before the officer from which he should reasonably have
concluded that the applicant had failed to make reasonable efforts to hire
Canadians.
[38]
The facts that formed the basis for the
officer’s decisions in these proceedings were very different from those in Specialized
Workers. As discussed below, the Applicants did not establish the existence
of a labour shortage in their particular business. Moreover, as the officer
observed, the norm in that business was to hire part-time workers. This was
reflected in the above-mentioned statistics that were cited in the officer’s
Notes to file. Those statistics may, at least to some extent, explain why the
Applicants’ advertisements generated so few responses from potential recruits.
[39]
I recognize that it may well cost the Applicants
more to hire, train, and schedule part-time workers, relative to full-time
workers, and that the latter may well perform better and be more reliable over
the long-run than the former.
[40]
However, the Applicants did not direct my
attention to anything that would support the proposition that the
reasonableness of the officer’s decision should be assessed primarily by
reference to these considerations. Indeed, it is readily apparent from
subsection 203(3) of the Regulations that the reasonableness of the officer’s
decisions should be assessed by reference to the ultimate test of whether “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.” The seven specific criteria set forth in paragraphs
203(3)(a) – (g) reinforce this orientation, and do not in any way allude to or
contemplate the types of considerations or latitude emphasized by the
Applicants.
[41]
Ms. Morandini’s uncontested evidence is that the
purpose of the TFWP is to enable employers to hire foreign workers on a
temporary basis to fill immediate skills and labour shortages when there are
not sufficient Canadian citizens or permanent residents available to fill the
positions in question.
[42]
Considering that the majority (59%) of workers
in the restaurant business are part-time, and that approximately 61% of them
are between the ages of 15 and 24, it was not unreasonable for the officer to
be concerned that Canadian citizens or permanent residents who may otherwise
have been available to fill the Applicants’ FCA positions had not been provided
with the opportunity to apply for those positions. Indeed, this concern was
rooted firmly in paragraph 203(3)(e) of the Regulations.
[43]
Contrary to what the Applicants’ position would
imply, the TFWP was not intended to be used as a means to allow employers to
change industry standards by excluding segments of the workforce in Canada, such as students or other young people, who traditionally have filled particular
positions through part-time work. Moreover, ESDC was not under any obligation
to provide employers advance notice of this in the Guidelines.
[44]
The fact that the website of WorkBC, the
provincial counterpart of the National Job Bank, did not permit the posting of
just a single advertisement for both full-time and part-time workers until
earlier this year does not assist the Applicants. In part, this is because the
other advertisements posted for the positions at the restaurant in Lougheed, British Columbia prior to when the applications for the LMOs were submitted also
mentioned only full-time positions. Moreover, as noted by the Respondent, there
was no good reason why separate postings for part-time and full-time positions
could not have been made on the website of WorkBC.
[45]
Likewise, it does not help the Applicants that
they amended their advertisements in February and March 2014 to state the
following: “Even though this position is a full time
position but [sic] we encourage part-time candidates to apply as well.”
The Guidelines make it very clear that employers are expected to at least meet
the minimum recruitment efforts required for lower skilled occupations before
they apply for an LMO. This is an entirely reasonable position, as ESDC
officers need to be able to assess requests for LMOs at a point in time. There
is nothing unreasonable about taking the position that such time is when the
application is submitted. The fact that ongoing recruitment efforts are also
required simply ensures that employers will continue to endeavour to find
Canadian citizens or permanent residents to fill the vacant positions until a
positive LMO is issued.
[46]
In passing, I observe that the above-quoted
statement (encouraging part-time recruits to apply) that was added to the
Applicants’ advertisements appeared in most of them towards the end of the
posting. In several cases, this was on the second or third page of the amended
advertisement. In my view, this did not constitute a reasonable effort to make
it clear to potential applicants that there were part-time positions available,
particularly given that the references to full-time positions were made in
prominent places at the very outset of the advertisements.
[47]
Considering the foregoing, I am satisfied that
it was not unreasonable for the officer to have refused to issue the positive
LMOs, in part because the Applicants had not indicated a willingness in their
advertisements to hire part-time workers.
[48]
I will deal in Part IV.B of these reasons below
with the fact that some of the advertisements posted with respect to the vacant
positions at the restaurant in Seton, Alberta contained the above-quoted
sentence directed towards part-time candidates, and were dated prior to when
the Applicants submitted their requests for LMOs.
(3)
The officer’s conclusions regarding the
Applicants’ failure to demonstrate the existence of a labour shortage
[49]
The officer’s determination that the Applicants
had failed to demonstrate the existence of a labour shortage, as contemplated
by paragraph 203(3)(c) of the Regulations, appears to have been based on a
finding that such a shortage had not been established by the results of their
recruitment efforts.
[50]
In her Notes to file with respect to both of her
refusal decisions, the officer observed that the Applicants were unable to
provide accurate results in respect of their recruitment efforts. The explanation
provided by the Applicants was that those efforts had been undertaken by the
Third Party, who had combined the results for the FCA positions with
recruitment results for food services supervisor [FSS] positions.
[51]
With respect to the Lougheed location, the
officer’s Notes to file stated that 18 applications had been received for the
FCA and FSS positions combined prior to November 18, 2013. Of those, 14 were
from Canadian citizens or permanent residents and four were from foreign
nationals. It was then noted that all of them had been contacted by the Third
Party, who reported that two had found jobs, one had provided an incorrect
telephone number, two were not looking for full-time work, and five did not
return the Third Party’s telephone calls. Later, the officer noted that the
Third Party had clarified that 13 of the applications had been for the FCA
positions, while five of them had been for the FSS positions. In addition, it
was noted that the Third Party had reported that none of the applicants for the
FCA positions had been hired, because they could not be contacted, were out of
the country, had found other employment, or were otherwise unavailable. The
officer added that the Third Party and the employer had been unable to provide
the details of the candidates for each position. Finally, she noted that only
two of the seven labour market indicators for the job category in question (NOC
6641) indicated a potential labour shortage, and that the overall regional
unemployment rate for British Columbia is 6.5%.
[52]
With respect to the Seton location, the
officer’s Notes to file stated that eight applications had been received for
the FCA position, and that none of the applicants had been hired because they
were either unavailable or out of the country. It was then observed that
whereas no staff had been employed at this location at the time the request for
the LMO was initially made in November 2013, eight “walk-ins” were subsequently
hired. The officer was clearly concerned that this development reflected the
lack of a genuine prior effort to hire Canadian citizens or local residents.
[53]
The Applicants maintain that they provided a
reasonable summary of the results pertaining to the candidates who applied for
the FCA positions. In addition, they note that neither the Guidelines nor any
other information available on ESDC’s website describes the level of detail
required to be provided in respect of recruitment results. They therefore
assert that they cannot be expected to conform to un-published requirements.
[54]
With respect to the location in Seton, Alberta, the Applicant in Court file IMM-2997-14 observes that data included at pages 43
and 44 of the Certified Tribunal Record report the unemployment rate for Calgary, Alberta to have been 4.5% and 5.0% in February and March 2014, respectively. The
Applicant submits that this does not support the conclusion reached by the
officer regarding the existence of a labour shortage, particularly given that
ESDC currently processes low-skilled applications if the work location is in an
area of low unemployment, which ESDC allegedly defines as below 6%.
[55]
On the particular facts of the Applicants’
cases, I am satisfied that it was not unreasonable for the officer to have
concluded that the Applicants had not demonstrated the existence of a labour
shortage. The information they provided was scant and vague. It was reasonably
open to the officer to determine that it fell well below the level of detail
that was required in the circumstances to meet their burden.
[56]
With respect to the Lougheed location, the fact
that only two of the seven labour market indicators for the job category in
question (NOC 6641) indicated a potential labour shortage provided additional
support for the officer’s conclusion.
[57]
With respect to the Seton location, such
additional support was provided by the fact that eight “walk-ins” were hired
after the Applicant claimed the following in its application: “After extensive recruitment efforts, we are unable to find
local Canadians/PR’s [sic] to fill this vacancy with our company.” The
fact that the unemployment rate for Calgary as a whole was reported to be 4.5%
and 5.0% in February and March 2014, respectively, does not, in and of itself,
establish that there is a labour shortage for FCA positions.
(4)
The officer’s conclusions regarding the
Applicants’ failure to meet minimum advertising requirements
[58]
The officer’s conclusions on this point related
to her determination that the Applicants had not demonstrated sufficient
efforts to hire Canadian citizens or permanent residents for their vacant
positions, as contemplated by paragraph 203(3)(e) of the Regulations.
[59]
This determination appears to have been based
primarily on the fact that the Applicants’ advertisements did not include the
full addresses of the restaurants, as set forth in the Guidelines. Under the
heading “DECISION: REFUSE,” the officer’s Notes to file state: “insufficient recruitment (no business address).”
Elsewhere in those notes, it is stated that the advertisements were exactly the
same as the advertisements that Ms. Lasenby had contemporaneously submitted in
connection with a request for LMOs in Edmonton, Alberta, which had been refused
due to missing business addresses. The officer observed that since she had
refused the requests for LMOs in Edmonton on this basis, the results for the
Lougheed and Seton locations would be the same, because the advertisements were
the same. Her Notes to file indicate that she advised Ms. Lasenby of this
decision in a telephone call on March 11, 2014 and that Ms. Lasenby informed
her the following week that she would submit written confirmation of her
withdrawal of her requests for the LMOs. However, it appears that approximately
two weeks later, the Third Party advised the officer to proceed with her
assessments of the Applicants’ requests.
[60]
In the officer’s Notes to file regarding the
Lougheed location, it was noted that the five advertisements submitted in
support of the request for an LMO identified the address as being either
"Lougheed, Vancouver BC," " Lougheed, Burnaby," " Lougheed Hwy, Burnaby BC" and "various locations in Vancouver." With respect
to the Seton location, it was noted that the advertisements submitted with the
request identified the addresses as being either "Seton, Calgary, Alberta," "Seton, Calgary "or "Seton" (under a heading
"various locations in Calgary"). The Notes to file stated that these
addresses were not sufficient. A subsequent entry observed that amended
advertisements containing the full business addresses were submitted after Ms.
Lasenby was advised of the missing information. That entry refers to a dispute
that I will deal with separately, in Part IV.C. of these reasons below.
[61]
Leaving aside that separate dispute for the
moment, the officer’s determination that the Applicants’ advertisements were
insufficient because they did not include the full addresses of the employment
locations was not unreasonable. This is particularly so given that (i) the
Guidelines made it very clear that advertisements must include both the “location of work (local area, city or town)” and the
business address of the place of employment, and (ii) it is reasonable to
expect that potential candidates for part-time positions in a restaurant may
well want to know this information before applying for a advertised position.
In this latter regard, I accept Ms. Morandini’s uncontested evidence that
if “an employer’s advertisements do not contain the basic
information required by the TFWP about the position, potential Canadian
candidates are not provided with a fair opportunity to evaluate their
suitability or interest in the position.” This is especially so with
respect to new locations, such as the restaurant in Seton. The Applicants did
not adduce any evidence to support the proposition that their restaurants in
Lougheed and Seton are so well known by the general public that it was not
reasonably necessary for them to have included the specific addresses of those
restaurants, so that potential candidates could make an informed decision as to
whether the vacancies might be of interest to them.
[62]
The fact that the Applicants may have amended
their advertisements, subsequent to their request for the LMOs in November
2013, is irrelevant. As noted at paragraph 45 above, the Guidelines make it
very clear that employers are expected to at least meet the minimum recruitment
efforts required for lower skilled occupations before they apply for an
LMO. For the reasons explained in that paragraph, this is not an unreasonable
position. I note that Ms. Lasenby confirmed in her affidavit that she was
advised by the officer in March 2014 that although ongoing recruitment efforts
are required until the point in time at which a decision is made on a request
for an LMO, “changes made such as the addition of
addresses will not change the assessment of the original application.”
Moreover, in the applications, Ms. Lasenby checked off the box beside the
following statement: “I am aware of and I have complied
with the published recruitment and advertising requirements set by [ESDC].”
[63]
In addition to her concern regarding the lack of
full business addresses, the officer’s Notes to file reflect a second concern
with respect to the efforts made by the Applicants to target under-represented
groups. With respect to the Lougheed location, those Notes to file stated that
the Applicant had not provided evidence of efforts to target under-represented
groups. As a result, the Applicants were requested to provide the exact dates
and duration of such efforts, together with contact information and the content
of advertising. A subsequent entry in the officer’s notes indicates that the
follow-up information provided by the Third Party did not indicate the time and
duration of the efforts to target under-represented groups.
[64]
With respect to the Seton location, the Notes to
file stated that, in April 2014, the Third Party had provided a list of
under-represented groups targeted. However, as with the Lougheed location, no
indication was provided of the dates or duration of the advertisements.
[65]
In her affidavits, Ms. Lasenby explained why she
was unable to confirm when the advertisements targeting under-represented
groups were posted, and for how long. In brief, after she sent an advertisement
to various organizations, together with a request that it be posted on the
organization’s bulletin board, she did not receive any response from the
organizations confirming how long the advertisement had been posted. Ms.
Lasenby further explained that after the officer requested the names of the
persons who had been contacted at those organizations, she supplied such
information in April 2014.
[66]
The fax transmission sheets attached to Ms.
Lasenby’s affidavit indicate that many of the requests were sent to the
organizations in question in mid-August 2013. With respect to the Seton
location, there is a dispute between the parties regarding whether some of that
documentation had in fact been sent to the officer. In any event, I am
satisfied that it was not reasonable for the officer to have insisted upon the
additional information, regarding precisely when and for how long the
advertisements were posted by the organizations in question.
[67]
As noted by the Applicants, paragraph 203(3)(e)
of the Regulations requires an assessment of whether reasonable efforts
have been made to hire or train Canadian citizens or permanent residents. In
turn, the Guidelines simply suggest that employers target under-represented
groups by "trying" to recruit workers from organizations such as
local or provincial/territorial employment centres and services centres for Aboriginal
youth. This is precisely what the Applicants endeavoured to do. Assuming that
they did in fact supply to the officer the information that they faxed to the
organizations in question, together with the information regarding their
contact persons at those organizations, it was unreasonable for the officer to
have required additional information regarding the duration and timing of the
posting of the advertisements by the organizations. This information was not
readily available to the Applicants or the Third Party.
[68]
It is not necessary to dwell on this particular
issue, because the principal reason why the officer found the Applicants’
recruitment efforts to have been insufficient was because the advertisements
initially supplied with their requests for an LMO did not include the business
addresses of the Lougheed and Seton locations. With that in mind, I am
satisfied that the officer’s overall conclusion regarding the insufficiency of
those efforts was reasonable. This is subject to my assessment below of whether
the officer erred by failing to provide an opportunity to the Applicants to
address her concerns regarding the authenticity of some of the advertisements
that were provided in connection with the Seton location.
(5)
The overall reasonableness of the officer’s
refusal to issue the LMOs
[69]
The officer’s refusal to issue the positive LMOs
requested by the Applicants was based on three principal grounds, namely, the
Applicants’ failure to demonstrate (i) that there was a reasonable employment
need in their business for the full-time jobs they posted, (ii) the existence
of a labour shortage for the FCA positions, and (iii) that they had made
sufficient efforts to hire Canadians for their vacant positions.
[70]
As noted at the outset of Part IV.A of these
reasons, those determinations related to paragraphs 200(5)(b), 203(3)(c) and
203(3)(e) of the Regulations, respectively. After making those determinations,
the officer concluded that the hiring of foreign workers for the Applicants’
vacant positions “would have a negative impact on the
Canadian labour market, specifically, the availability of employment
opportunities for Canadians and permanent residents.” In other words,
the officer implicitly concluded that the Applicants had not demonstrated that
the employment of the unnamed foreign nationals they sought to hire would
likely have a neutral or positive effect on the labour market in Canada, as required by paragraph 203(1)(b) of the Regulations.
[71]
Given that each of the determinations made by
the officer in relation to the three principal issues which she identified was
reasonable, her decision on the paramount issue of whether the employment of
the unnamed foreign nationals would likely have a neutral or positive impact on
the labour market in Canada was also reasonable.
B.
Did the officer err by failing to provide an
opportunity to address her concerns regarding the authenticity of certain
advertisements?
[72]
The Applicant in file IMM-2997-14 submits that
the officer erred by failing to provide it with an opportunity to address her
concerns regarding the authenticity of certain advertisements that it provided
to the officer in March and April 2014. Several of those advertisements appear
to have been posted in August 2013 and to have contained both the full address
of the Seton location as well as an encouragement to “part-time
candidates to apply as well.”
[73]
The requirements of procedural fairness will
vary according to the specific context of each case (Baker v Canada
(Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at para 21 [Baker]).
In the context of applications by employers for LMOs, a consideration of the
relevant factors that should be assessed in determining those requirements
suggests that those requirements are relatively low. This is because, (i) the
structure of the LMO assessment process is far from judicial in nature, (ii)
unsuccessful applicants can simply submit another application (Maysch v
Canada (Citizenship and Immigration), 2010 FC 1253, at para 30; Li v
Canada (Citizenship and Immigration), 2012 FC 484, at para 31 [Li]),
and (iii) refusals of LMO requests do not have a substantial adverse impact on
employers, in the sense of carrying “grave,” “permanent,” or “profound”
consequences (Baker, above, at paras 23-25).
[74]
Nonetheless, employers have a legitimate
expectation that they will be afforded an opportunity to respond to any
concerns that an ESDC officer may have regarding their credibility or the
authenticity of documentation that they supply in support of a request for a
positive LMO (Baker, above, at para. 26; Hassani v Canada (Minister
of Citizenship and Immigration), 2006 FC 1283, at para 24; Ma v Canada
(Minister of Citizenship and Immigration), 2009 FC 1042, at para 13; Li,
above, at para 33).
[75]
Accordingly, I agree that the officer erred by
failing to provide the Applicant with an opportunity to address her concerns
regarding the authenticity of the advertisements in question. This alone is a
sufficient basis upon which to set aside the officer’s decision in respect of
the Seton location.
[76]
In her Notes to file, under the heading
"DECISION: REFUSE," and immediately below the list of the three
principal reasons for refusing the Applicant’s request for an LMO, the officer
stated the following:
“NOTE: Original
recruitment provided with application used to render decision on recruitment.
[Employer] has provided hard copies of SAME AD’S (same job order number and
print dates) however they have been altered – very evident (different fonts
used to alter location) specifically job bank and kijiji – issues of
credibility and authenticity.” (My emphasis)
[77]
Further down on the same page of the officer’s
note, the officer wrote “Authenticity of ads targeting
underrepresented groups.”
[78]
These entries into the officer’s notes make it
readily apparent that the officer’s concerns regarding the authenticity of the
information supplied by the Applicant played a significant role in her decision
to refuse the LMO in connection with the Seton location.
[79]
The officer’s concerns in this regard were not
unreasonable, particularly given the following: (i) the advertisements in
question were submitted to her in March 2014, after the officer advised Ms.
Lasenby of her concerns, yet those advertisements were purportedly posted in
August 2013, (ii) some of those advertisements were posted by the same entities
(Service Canada’s Job Bank, Kijiji, Craigslist and AllStarJobs) as those whose
advertisements were provided to the officer in November 2013, but did not
contain the new information, (iii) the print font in which the business
addresses were displayed in the Kijiji advertisements was different from the
font in the rest of the advertisement, and (iv) some of the advertisements in
question contained the very same language encouraging part-time candidates to
apply that only appeared in the advertisements for the Lougheed location in
March 2014.
[80]
Nonetheless, given that the officer’s concerns
related to the authenticity of advertisements that contained the full business
address of the Seton location and purportedly were posted in August 2013, it
cannot be said that the failure of the officer to provide the Applicant with an
opportunity to address her concerns was immaterial. This is because it is
possible that the Applicant may have been able to alleviate those concerns, in
which case the officer may well have reached a different conclusion regarding
the Applicant’s failure to include a full business address for the Seton
location in its advertisements. Since this was the principal reason why the
officer concluded that the Applicant had not met the minimum advertising
requirements set forth in the Guidelines, the officer’s conclusion on this
point may well have been different.
[81]
In turn, had the officer’s conclusion on this
latter point been different, it is possible that her overall conclusion to
refuse the LMO requested by the Applicant also may have been different.
Although such an outcome would appear to be unlikely, due to the officer’s
findings on the other issues discussed in these reasons for judgment, it cannot
be said to be remote. Stated differently, it cannot be said that the officer’s
ultimate conclusion was inevitable, even if she had accepted the authenticity
of the advertisements in question (Hassani, above, at paras 35 – 44).
[82]
Given my conclusion on this point, the officer’s
decision in respect of the Seton location will be set aside and the matter will
be remitted to a different officer for reconsideration in accordance with these
reasons.
C.
Did the officer fetter her discretion?
[83]
Notwithstanding the conclusion that I have
reached immediately above, I will proceed to consider this issue because it has
been raised by the Applicants with respect to the officer’s decisions in
respect of both the Lougheed and the Seton locations.
[84]
The Applicants submit that the officer fettered
her discretion in assessing their requests for a positive LMO because she “blindly followed” ESDC’s policy, as expressed in the
Guidelines, without taking their individual circumstances into account. The
Applicants maintain that although the ESDC’s policies may be used to assist the
officer, the officer should be prepared to make exceptions on the basis of an
individual’s case.
[85]
More specifically, the Applicants submit that
the officer refused their application exclusively or primarily on the basis
that their advertisements did not contain the business addresses of their
restaurant locations. They maintain that while this requirement may be
identified in the Guidelines, paragraph 203(3)(e) of the Regulations simply
requires an assessment of whether an employer has made reasonable efforts
to hire or train Canadian citizens or permanent residents.
[86]
In support of their position, the Applicants
rely on Justice Zinn’s observation in Specialized Workers, above, at
paragraph 137, that “it might very well have been a
‘fettering of discretion’ to strictly follow HRSDC recruitment policies, i.e.
if the information otherwise indicated that HD Mining’s recruitment efforts
were ‘reasonable’.” In that case, the officer did not strictly
follow the HRSDC’s policies in deciding to grant the LMOs. Justice Zinn
declined to set aside the officer’s decision on this ground, after implicitly
determining that the information otherwise indicated that HD Mining’s
recruitment efforts were “reasonable.”
[87]
In contrast, the materials that have been filed
in these proceedings do not “otherwise indicate”
that the Applicants’ recruitment efforts were reasonable, such that a departure
from the Guidelines was warranted. By comparison with the extensive
documentation that was before Justice Zinn in Specialized Workers,
above, evidencing HD Mining’s recruitment efforts, the information that the
Applicants provided in support of their requests for positive LMOs was sparse
and uncompelling. There was nothing about the Applicants’ particular
circumstances, as reflected in the materials before the officer, that required
a departure from the Guidelines or an explanation as to why no such departure
was made.
[88]
The Applicants also rely on this Court’s
decisions in Xiao v Canada (Minister of Citizenship and Immigration),
[1998] FCJ No 731, at para 11 [Xiao], and Campagna v Canada (Minister of Citizenship and Immigration), 2014 FC 49, at paras 11-15 [Campagna].
[89]
Those cases involved applications for permanent
residence and spousal sponsorship, respectively, that were returned to the
applicants on the grounds of incompleteness, just before statutory changes were
made which disadvantaged the applicants. In each case, the decision-maker
relied on operational policies in returning the applications. The question was whether
the applicants were entitled to have the applications that they resubmitted
assessed in accordance with the statutory regime that existed at the time they
filed their initial applications. The Court in both cases essentially held that
the decision-maker’s policies could not be relied on to support the position
that the applications had not been submitted under the prior statutory regime.
[90]
In reaching this conclusion in Xiao,
above, the Court stated that the Minister’s authority to impose mandatory requirements
that have binding legal effect must be found in explicit and positive language
in a relevant statute or regulation, and cannot be contained in guidelines or
other non-binding instruments. That decision was followed in Campagna,
above, after the Court determined that there was no clear authority in the
Regulations for the decision by an officer to treat an incomplete application
for spousal sponsorship as if it did not exist. It did not matter that the
CIC’s operational manual appears to have clearly stated that an application
does not exist until it is complete.
[91]
It is trite law that administrative guidelines
are not binding and cannot be applied in a manner that unduly fetters a
decision maker’s discretion, unless they constitute delegated legislation,
having the full force of law (Canada (Minister of Citizenship and
Immigration) v Thamotharem, 2007 FCA 198, at paras 62-72; Herman v
Canada (Minister of Citizenship and Immigration, 2010 FC 629, at para 28).
I was not referred to anything that might support the view that the Guidelines
constitute such delegated legislation.
[92]
So long as the Guidelines are not binding on
officers, and are applied in a manner that permit departures where warranted,
it is not unreasonable for officers to apply and follow them in the majority,
or even the substantial majority of cases.
[93]
In her affidavit, Ms. Morandini stated that
thousands of work permits are issued to TFWs each year. This suggests that ESDC
must process a very large volume of requests for LMOs annually. In this
context, it is not reasonable to expect that the ESDC should explain why
departures from the Guidelines are not made, unless the particular
circumstances of an applicant’s case are such that it would be reasonable for
such a departure to have been given serious consideration. One would expect
that such circumstances would be somewhat exceptional or unusual in nature.
[94]
Broad adherence to the Guidelines in this type
of flexible manner can be generally expected to have many public benefits.
These include increased administrative efficiency, reduced backlogs, decreased
scope for arbitrariness and increased certainty and predictability. Published
operational policies such as Guidelines also serve the useful role of giving
rise to legitimate expectations regarding the assessment framework that will be
followed by a public agency such as the ESDC (Agraira v Canada (Public
Safety and Emergency Preparedness), 2013 SCC 36, at para 98 [Agraira]).
They can also be expected to enhance the quality of the agency’s decision-making
(Malik v Canada (Minister of Citizenship and Immigration), 2009 FC 1283,
at para 33).
[95]
Moreover, documents such as the Guidelines can
serve as “a useful indicator of what constitutes a
reasonable interpretation” of legislation such as paragraph 203(3)(e) of
the Regulations (Agraira, above, at para 85).
[96]
The facts in the Applicants’ cases are
distinguishable from those in Xiao, above, and Campagna, above,
most importantly because the Guidelines appear to be flexibly applied by the
officer and others at ESDC. This is reflected in the officer’s Notes to file
and in several passages of Ms. Morandini’s affidavit.
[97]
In her Notes to file, the officer observed that
Ms. Lasenby had stated that she had been informed by the Third Party that the
officer had accepted other files with the same recruitment information. In this
regard, the officer stated: “Advised [Ms. Lasenby] that
each file is based on it’s own merit (and facts on hand).” Although the
officer proceeded to note that “since government
introduced change (July 31, 203 [sic] mandatory advertisements must be met,”
I am prepared to give her the benefit of the doubt, particularly given the
first of her two quoted statements immediately above, and given Ms. Morandini’s
evidence.
[98]
At paragraph 20 of her affidavit, Ms. Morandini
stated the following in relation to advertising requirements: “ESDC does consider variations on these requirements in a
variety of occupations where the labour market conditions or the advertising
and recruitment norms for the occupation support a variation.” To some
extent, this is reflected in the Guidelines. The Guidelines also explicitly
provide flexibility regarding the methods of advertising and targeting
under-represented groups.
[99]
ESDC’s flexible approach to the Guidelines appears
to be reflected elsewhere in Ms. Morandini’s affidavit. For example, at
paragraph 21 of her affidavit she states: “As such,
without accurate and complete advertising completed prior to the date of the
LMO application, the requirement to make sufficient efforts to hire Canadians
and permanent residents under s. 203(3)(e) will typically not be
satisfied.” (My emphasis.) She then proceeds in paragraph 22 to state: “If the under-represented groups have not had the opportunity
to apply for these positions, the employment of the foreign national could
have a negative impact on the labour market in Canada.” (My emphasis.)
[100] In view of the officer’s Notes to file and Ms. Morandini’s
uncontested evidence, I am satisfied that the officer did not fetter her
discretion by “blindly following” the Guidelines
in refusing the Applicants’ requests for a positive LMO.
[101] Notwithstanding the foregoing, the Guidelines could be much clearer
regarding their flexible application. In this regard, an explicit statement at
the beginning of the Guidelines, stating that departures from them may be made
in appropriate circumstances, would have been helpful. In any event, in
applying the Guidelines, officers would be well advised to avoid using language
that may suggest that the Guidelines are binding in all circumstances.
[102] In a related submission, the Applicants also assert that the officer
“cannot consider only one factor (business address) and
refuse the application without assessing the application as a whole.”
[103] It should be readily apparent from my assessment of the officer’s
decisions that she did not, in fact, refuse the Applicants’ requests for
positive LMOs based solely on their failure to include the business addresses
of their restaurants in their advertisements. As discussed at the outset of
Part IV.A. of these reasons for judgment, those requests were refused for three
principal, and different, reasons.
V.
Conclusion
[104] Given the foregoing, the application in Court file IMM-2996-14 will
be dismissed and the application in Court file IMM-2997-14 will be granted. The
decision that is the subject of the latter application is set aside and will be
remitted to a different officer for reconsideration in accordance with these
reasons.
[105] No question for certification was suggested by the parties. I am
satisfied that none arises on the particular facts of these applications.
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