Docket: IMM-8314-14
Citation:
2016 FC 197
Toronto, Ontario, February 12, 2016
PRESENT: The
Honourable Mr. Justice Shore
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BETWEEN:
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FARAZ AHMED AND
CHEECH GLASS LTD.
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Applicants
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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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JUDGMENT AND REASONS
I.
Overview
[1]
When and under what conditions can a Canadian
employer engage a temporary foreign worker for a vacant position? When a
Canadian labor market shortage exists in respect of the position and its inherent
qualifications; and, then, only, according to the latest posted determined
government hourly wage (reference is also made to paragraphs 39 and 40 of Toto
Babic and Brada Construction Ltd. v Canada (Minister of Employment and Social
Development), 2016 FC 174).
II.
Background
[2]
This is an application for judicial review by
the Applicants pursuant to subsection 72(1) of the Immigration and Refugee
Protection Act, SC 2001, c 27 [IRPA] of a decision dated December 1,
2014, wherein a Program Officer [Officer] from Employment and Social Development
Canada refused to issue a positive Labour Market Impact Assessment [LMIA] as
sought by the Applicants.
[3]
The Applicant, Faraz Ahmed, is a manager at the
Applicant, Cheech Glass Ltd. The Applicants sought to hire a temporary foreign
worker [TFW] through the Temporary Foreign Worker Program [TFWP].
[4]
The Applicants submitted a first application for
a Labour Market Opinion [LMO] to the Department of Employment and Social
Development Canada [ESDC] on June 19, 2014. The Applicants were advised on
July 11, 2014, that their first application was refused as an incorrect
application form was used; not all fields in the form were filled out; and, the
required documents were not included in the application. The Applicants
submitted a second application, a LMIA as opposed to a LMO, on July 30,
2014. On August 2014, the Applicants received an email from an officer from
ESDC informing them that their second application was rejected because it was
incomplete as the “Business Information” section
of the LMIA form was not filled out; and, that certain requested documents were
not missing from their application: Schedule C – Employer Transition Plan and
Proof of Recruitment. Subsequently, on September 10, 2014, the Applicants
received another email, from a Business Expertise Advisor, wherein there was a
confirmation that the decision of the responsible officer was indeed confirmed;
and, their second application was rejected because the Provincial/Territorial
workplace safety and insurance clearance letter/certificate was missing from
their second application.
[5]
A subsequent LMIA application [Application] was
submitted on October 3, 2014 and on October 28, 2014, the Applicants’
representative sent a letter to the Service Canada LMO Processing Centre
informing them that the Applicants were publishing another Job Bank
Advertisement (7647402) from October 27, 2014 to February 21, 2015,
with a wage of $27.97/hour, as the previous advertisement (7427451) was set to
expire on October 29, 2014. After conducting two phone interviews with the
Applicant, Faraz Ahmed, the Application was rejected on December 1, 2014;
mainly because the Application did not demonstrate that the Applicants had made
sufficient efforts to hire Canadians in the stated occupation; and, the
employment of the foreign national in the described occupation was not likely
to result in the filling of a labour shortage. Moreover, the Officer found that
the Applicant had not conducted sufficient recruitment efforts to hire Canadian
citizens and permanent residents before offering a job to a temporary foreign
worker. Finally, the Officer found that there is no demonstrable shortage of
workers in this occupation for the region indicated in the Application.
III.
Position of the Parties
[6]
The Applicants argue that the Application should
have been dealt with and processed in accordance with the law and regulations
at the time they were submitted, not decided (Kanes v Canada (Minister of
Citizenship and Immigration), [1993] FCJ No 1472). Additionally, the
Application should have been processed in accordance with the “legitimate expectation” of the Applicants (Baker v
Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; Canada
(Minister of Citizenship and Immigration) v Bendahmane, 8 Imm LR (2d) 20
(FCA)); and, that the conduct of the Respondent gives rise to promissory
estoppel (Mount Sinai Hospital Center v Quebec (Minister of Health and
Social Services), [2001] 2 S.C.R. 281, 2001 SCC 41). Namely, it was unfair for
the Respondent to change the guidelines and instructions on a continuing basis;
to refuse the Application due to the prevailing wage for the occupation in the
Toronto region, which was increased after the Application was submitted; to
reject the Application based on unclear and seemingly minor issues; and, to
refuse the Application because the advertisement was no longer available at the
time of the assessment of the Application by the Officer. Moreover, the
decision-maker relied on extrinsic evidence to reject the Application without
providing an opportunity for the Applicants to refute the evidence in
possession of the decision-maker (Olorunshola v Canada (Minister of
Citizenship and Immigration), 2007 FC 1056; Begum v Canada (Minister of
Citizenship and Immigration), 2004 FC 165). As a result, the Applicants
submit the Officer committed an error of law and the judicial review should be
granted because of the alleged breach of procedural fairness.
[7]
Conversely, the Respondent submits that given
that the Applicants only, of late, raised the issues of procedural fairness,
the Respondent limited his submissions to those particular issues. Firstly, the
Respondent submits that there was no procedural unfairness in applying
published guidelines to assess the Application. Remembering that the TFWP is a
program of last resort where no qualified Canadian or permanent resident is
available to work, the requirement for an employer to advertise for the
position throughout the period in which the Application is being assessed is
justified by the fact that if advertising efforts are insufficient, there is a
risk that qualified Canadians may not apply for the available occupation. The
procedural fairness owed the Applicants by the Officer was that the Officer
would assess the Application in accordance with the requirements of the guidelines.
Since the Officer, in assessing the Application, applied the guidelines, he met
his duty of procedural fairness. Secondly, the Respondent submits that there is
no merit to the argument that the Applicants’ advertisement was assessed
according to a newly published median wage. On October 3, 2014, the
Working in Canada website, which is the website on which the Officer relied on,
in respect of the prevailing wage, indicated that the prevailing wage for
marketing consultants for the Toronto region was $31.25/hour. Consequently, as
the Applicants’ published advertisement of October 27, 2014, indicated a
rate of $27.97, the Officer met his duty of procedural fairness by relying on
the October 3, 2015 rate as this rate pre-dates the date on which the
advertising was published. The Applicants had the obligation to verify prior to
making their advertisement that the prevailing wage had not changed.
Furthermore, the Respondent submits that there were other grounds on which the
Officer relied by which to reject the Application: the Applicants did not
demonstrate having made sufficient efforts to hire Canadians; the Applicants
did not demonstrate the degree to which the extensive qualifications sought
were in fact necessary for the position; the inconsistencies regarding the
required qualifications as published in the advertising and those stated by the
Applicant, Faraz Ahmed, during the interview with the Officer; and, there is no
labour shortage of marketing consultants in the Toronto region. As a result, it
was correct in respect of procedural fairness for the Officer to decide as he
did; and, there was no breach of procedural fairness by the Officer.
IV.
Standard of Review
[8]
Whether the Officer breached a duty of
procedural fairness is an issue of law reviewable on a standard of correctness
(Frankie’s Burgers Lougheed Inc. v Canada (Minister of Employment and Social
Development), 2015 FC 27 at para 23 [Frankie’s Burgers]; Dunsmuir
v Nouveau-Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9 at paras 79 and 87; Canada
(Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 at
para 43).
V.
Analysis
[9]
The Court notes, as submitted by the Respondent,
that the Applicants only raised issues regarding an alleged breach to
procedural fairness by the Officer; they did not argue that the Officer’s
decision was unreasonable. Therefore, the central issues to be determined by
the Court are:
1)
Did the Officer rely on policy requirements
which were not in place at the time of the submission of the Application?
2)
Did the Officer fail to provide an opportunity
to reply to extrinsic documentary evidence?
[10]
In assessing a LMIA (previously a LMO), the
degree of procedural fairness owed to the Applicant is relatively low, as
stated by Chief Justice Paul S. Crampton in Frankie’s Burgers at para 73:
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).
[11]
The order, dated August 21, 2015, by
Justice Richard G. Mosley, granted leave to the Applicants for the decision
dated December 1, 2014, by a Program Officer within the confines of the TFWP
at ESDC.
[12]
In its decision dated December 1, 2014, the
Officer employed the “standard language” used by
the ESDC to reject the Applicants’ LMIA application. Firstly, the Officer found
that the Applicants did not demonstrate sufficient efforts to hire Canadians for
the occupation (section 203(3)(e) of the IRPR). Secondly, the Officer found
that the Applicants did not demonstrate that the employment of the foreign
national in the described occupation is likely to result in the filling of a
labour shortage (section 203(3)(c) of the IRPR). Although the Applicants stated
that the “reasons [in the Officer’s decision] are a bit
confusing” they did not plead that the Officer’s reasons are
insufficient. As a result, the Court will not examine this issue. Nonetheless,
the Court notes that the “adequacy” of reasons
is not a stand-alone basis by which to quash a decision (Newfoundland and
Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), [2011]
3 SCR 708, 2011 SCC 62 at para 14).
A.
Reliance on policy requirements post-application
(1)
Changes to the guidelines and the LMIA Form
[13]
The Applicants argue that the Officer breached
his duty of procedural fairness by continually changing the guidelines and
forms. As a result, of this alleged breach of procedural fairness, the
Applicants submit that the decision must be sent back and considered anew
according to the guidelines as they were at the time of the “initial application” made on June 19, 2014.
[14]
As mentioned previously, only the
December 1, 2014 decision, from an Application submitted on
October 3, 2014, is under review. If the Court was to find that a breach
of procedural fairness did, in fact, occur, than, the Application would have to
be considered anew according to the guidelines as they were on October 3,
2014.
[15]
Nonetheless, the Court is not satisfied that the
Applicants did demonstrate in their submissions how the alleged changes to the
guidelines and to the form, did impact the assessment of the Officer in respect
of their Application. It is impossible for the Court to find that there was a
breach of procedural fairness if the Applicants do not, at the very least,
indicate how these changes had tangible consequences for their Application
bearing in mind the contents of the Applicants’ Application itself and the
circumstances set-out thereon.
(2)
Changes to the prevailing rate
[16]
Firstly, on October 3, 2014, the prevailing
rate for the NOC 4163, Business Development Officers and Marketing Researchers
and Consultants [marketing consultant], as published on the Job Bank website,
changed from $27.97/hour to $31.25/hour. The Applicants submitted their
Application on the same date with an offered rate of $27.95\hour. The
Applicants’ argument that the Officer relied on extrinsic evidence to establish
the prevailing rate must be rejected. The Certified Tribunal Record, at page
147, clearly indicates that the decision-maker will rely on the Job Bank website
to determine the prevailing wage. The Job Bank website is publicly available
and if the Applicants wanted to contest the prevailing rate, they had the
opportunity to do so in their LMIA application.
[17]
Secondly, the Applicants submit that the Officer
breached his duty of procedural fairness as he relied on the prevailing rate
published on October 3, 2014, for a marketing consultant to find that the
Applicants did not demonstrate sufficient efforts to hire Canadians in the occupation.
The Respondent did state that the Officer did assess the Application based on
the prevailing rate published on October 3, 2014 ($31.25), as the rate was
changed after the Application was submitted but before the advertisement was
renewed:
While the prevailing wage increased after
the applicant had applied for an LMIA, it increased three weeks before the
applicant re-advertised the position as it was required to do in support of a
positive LMIA. [My emphasis.]
(Respondent’s Further Memorandum of
Argument, p 14 at para 36)
[18]
Thirdly, the Applicants submit that the Officer
breached his duty of procedural fairness by relying on the October 3, 2014
rate to find that the Applicants did not meet the advertising requirements. The
Respondent relied on the affidavit of Agnuszk Tomada [Affidavit Tomada] to
submit that the advertisement published on the Job Bank website by the
Applicants on October 27, 2014, should have indicated a wage of $31.25;
and, the failure to do so demonstrates that the Applicants did not make
sufficient efforts to hire Canadians. In her affidavit, Ms. Tomada stated:
Similarly, if an employer fails in its
advertisement to offer at least the median wage for the occupation in
the region in which the employer wishes to hire a TFW, the requirement of
making reasonable efforts to hire a Canadian will generally not be satisfied,
regardless whether the advertising requirements were otherwise followed. [My
emphasis.]
[19]
In Frankie’s Burgers, Chief Justice
Crampton states that the guidelines are clear in respect of the importance for
a LMIA applicant to fulfill the requirements for advertising before and after a
LMIA (previously a LMO) is submitted:
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. [My
emphasis.]
(Frankie’s Burgers, above at para 45)
[20]
Since the Applicants had the obligation to
demonstrate, until a positive LMIA is issued, that they made sufficient efforts
to find Canadian citizens or permanent residents to fill a vacant position, it
would be contrary to the object of the IRPR with regard to the TFWP to find
that a LMIA applicant would not have to assure that the rate advertised in
their advertising is at least the same as the prevailing rate for the
occupation in the specified region.
[21]
Although the timeline in respect of the
prevailing wage was problematic due to a change on the day of the Application,
the number of factors which are vague and incoherent and which have led the
decision-maker to a finding of lack of credibility, substantively, outweigh the
issue of procedural fairness, thus, recognizing that even if the matter was
sent back, the ultimate decision would, as per the other factors specified
above, remain the same as the one before the Court (Mobil Oil Canada Ltd. v
Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202; Frankie’s
Burgers, above at para 81; Gal v Canada (Minister of Citizenship and
Immigration), 2004 FC 1771 at para 8).
VI.
Conclusion
[22]
For all the above reasons, the application for
judicial review is dismissed.
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