Docket: IMM-3055-15
Citation:
2016 FC 286
Ottawa, Ontario, March 7, 2016
PRESENT: The
Honourable Mr. Justice Southcott
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BETWEEN:
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CHARGER LOGISTICS 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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JUDGMENT AND REASONS
[1]
This is an application for judicial review of a
decision of a Foreign Worker Officer [the Officer] of Service Canada dated June
8, 2015, in which the Officer refused the Applicant’s request for a positive
Labour Market Impact Assessment [LMIA].
[2]
For the reasons that follow, this application is
allowed.
I.
Background
[3]
The Applicant is a Canadian logistics and
transportation company based in Mississauga, Ontario with 200 trucks in its
transportation fleet, which moves freight throughout Canada, the United States
and Mexico. This application arises out of its recruitment for a Supervisor –
Truck Drivers arising from its expanding business in the United States/Mexico
corridor.
[4]
The Applicant advertised for the position
through Job Bank and the Indeed and Workopolis websites. Sixty people applied, but
only ten were interviewed as having the requisite work experience. Of these ten
candidates, only four spoke Spanish, which was a job requirement. Three of
these four were unsatisfied with the salary and the other candidate was
unwilling to relocate to take the job.
[5]
On March 17, 2015, the Applicant applied for a
LMIA for the position. Following a number of communications between the
Applicant and the Officer, which included the subjects of the Applicant’s
advertising efforts and the wage offered for the position, on June 8, 2015 the Officer
issued the decision which is the subject of this judicial review.
II.
Impugned Decision
[6]
The Officer’s decision advised that Service
Canada was not able to issue a positive LMIA opinion and that this was based on
the wages the Applicant was offering and based on the Applicant not having demonstrated
sufficient efforts to hire Canadians in the occupation.
[7]
The Officer’s notes to file include the
following comments:
A.
The median wage for the occupation, described by
the Officer as National Occupation Classification [NOC] 7222 – Supervisors,
Motor Transport and Other Ground Transport Officers, is $33/hour at the Ontario
provincial level and $30.76/hour in Toronto (GTA-Mississauga) where the
temporary foreign worker would be employed;
B.
The wage of $30.76 hour offered by the employer should
be over the prevailing wage for the occupation because of the requirement for
an additional language skill, combined with job duties and education
requirements beyond those listed under NOC 7222;
C.
The employer’s search for an individual able to
coordinate the flow of equipment primarily in the Latin American marketplace,
who is fluent in Spanish, and who has a Business Administration Degree, will
make it difficult to find a candidate locally with the offered salary. The
median wage for this occupation at the provincial level is $33/hour.
Considering the specific skills sought, a higher wage offering may attract an
individual capable of meeting the employer’s needs;
D.
On August 20, 2015, the Officer wrote to the
Applicant’s representative, noting that the Applicant had clarified that the
hourly wage for the position was $33.33/hour rather than $30.76/hour. The
Officer requested the formula used to calculate the relationship between the
hourly wage and the posted $64,000 annual wage;
E.
The Officer’s August 20, 2015 communication also
noted that the Applicant’s advertisement on Job Bank was no longer active and
gave the Applicant an opportunity to provide any other job advertisements it
may have already posted;
F.
There were gaps in the Job Bank advertisement.
The advertisement went inactive on April 11, 2015 and, despite being given an
opportunity, the Applicant failed to provide any other active job advertisement
posted prior to the March 17, 2015 date on which it sought the LMIA;
G.
The Indeed advertisement was no longer active on
February 25, 2015. Despite an explanation provided by the Applicant on April
22, 2015, it could be verified that the advertisement was no longer available
on Indeed. The Applicant provided an explanation on April 27, 2015 of the
functioning of the Indeed website based on consultation with its account
manager at Indeed;
H.
The Applicant submitted that hiring the temporary
foreign worker would have a net positive impact on its industry sector,
resulting in job retention and the creation of jobs. The Applicant provided a
transition plan, but none of the proposed activities involved knowledge
transfer.
III.
Issues and Standard of Review
[8]
The Applicant submits the following issues for
the Court’s consideration:
A.
Was the Officer’s discretion fettered by
treating the advertising requirements set by the Temporary Foreign Workers
Program [TFWP] as mandatory requirements?
B.
Was the Officer’s refusal of the Applicant’s
LMIA application unreasonable with respect to prevailing wage, given the
evidence that was before the Officer?
[9]
The parties agree, and I concur, that the
standard of review applicable to the Officer’s decision is reasonableness (Frankie’s
Burgers Lougheed Inc v Canada (Minister of Employment and Social Development),
2015 FC 27 [Frankie’s Burgers]). Overall, the issue for the Court to
consider is whether the decision is reasonable.
IV.
Submissions of the Parties
A.
Applicant’s Position
[10]
The Applicant relies on Canadian Reformed
Church of Cloverdale B.C. v The Minister of Employment and Social Development
Canada, 2015 FC 1075 [Reformed Church] where the Court found that an
officer had fettered her discretion. Section 203(1)(b) of the Immigration
and Refugee Protection Regulations, SOR/2002-227 [Regulations] made under
the Immigration and Refugee Protection Act, SC 2001, c 27 confers on an
officer the discretion to determine inter alia whether the “employment of the foreign national is likely to have a
neutral or positive effect on the labour market in Canada”. In making
that determination there are seven factors (set out in section 203 (3) of the
Regulations) that must be taken into consideration. The Applicant notes that
none of these factors mandate minimum advertising requirements.
[11]
The Applicant submits that, instead of looking
at the evidence to determine whether the Applicant “will
hire or train Canadian citizens or permanent residents or has made, or has
agreed to make, reasonable efforts to do so”, as the Officer was
required to do under section 203(3)(e), the Officer assessed only whether the
minimum advertising requirements set by the TFWP were met. In such assessment,
the Officer did not consider the evidence of all the advertising the Applicant
had done to fulfill the position. The Applicant also takes the positon that the
Officer failed to address evidence that the advertisement on the Indeed website
had been running continuously.
[12]
With respect to the hourly wage for the positon,
the Applicant explains that, if one works 160 hours per month (the monthly
hours described in its advertisements) for $64,000 per year, the hourly wage
rate is $33.33 hours, not $30.76 as the Officer found. The Officer therefore
erred in the component of the decision based on the prevailing wage
calculation.
[13]
Finally, the Applicant argues that the Officer
erred in failing to weigh all the factors set out in section 203(3) of the
Regulations. The Applicant refers to evidence that the temporary foreign worker
it wished to hire had previously worked for the Applicant, performed extremely
well and would bring benefits to its operations that would secure Canadian
jobs.
B.
Respondent’s Position
[14]
The Respondent would distinguish Reformed
Church on the basis that the Officer in that case relied completely on an
internal guideline as the basis for refusing an LMIA, without considering the
language in the applicable Regulations. The Respondent relies on Frankie’s
Burgers, where Chief Justice Crampton observed that the TFWP requirements
ensure that employers are aware of the minimum efforts necessary for obtaining
a positive LMIA and assist in promoting a measure of consistency and
predictability in officers’ assessments of the factors set out in the Regulations.
[15]
The Respondent notes that the Officer determined
that the Applicant stopped advertising the position on the Job Bank in April
2015, after the Applicant had submitted its application but before a decision
had been rendered. The minimum advertising provisions require that an Applicant’s
advertisement on the Job Bank be continuous until a decision on the application
is reached. However, the Respondent argues that the Officer departed from these
requirements and asked the Applicant if one of its supplementary advertisements
was still ongoing.
[16]
The Respondent also argues that the Officer’s
finding, that that the Applicant had not offered wages consistent with the
prevailing wage, was reasonable. The prevailing wage for the position was $33/hour
and, based on a 40 hour work week, this translates into an annual wage of
$68,640, not $64,000 as offered by the Applicant. The Officer also concluded
that the wage offered by the Applicant should have been higher than the
prevailing wage, because the Applicant sought a candidate who was fluent in
Spanish, had one year’s experience as a dispatcher and had a degree in Business
Administration. Three Canadian applicants who were qualified for the position
were not hired because they sought more money than was offered.
[17]
In response to the Applicant’s argument that the
Officer erred in failing to weigh all the factors set out in section 203(3) of
the Regulations, the Respondent refers to portions of the Officer’s notes that
address each of these factors, including the Applicant’s submissions to the Officer
about the temporary foreign worker it wished to hire.
V.
Analysis
[18]
My decision to allow this application for
judicial review turns on the Officer’s consideration of the Applicant’s
advertising efforts. On this issue, the Applicant argues principally that the
Officer fettered his discretion by focusing on the minimum advertising
requirements prescribed by the TFWP. The Applicant emphasizes in particular the
portion of the Officer’s notes which states as follows:
Rationale for positive or negative LMIA
Details: The assessment for this LMIA
application does result in a negative opinion (contingent to BEA concurrence
for 100% monitoring) for the following reasons:
ER does not meet the minimum advertising requirements
set by the TFW Program
ER does not meet the prevailing wage
requirements R203(3)(d).
(emphasis added)
[19]
With respect to the advertising requirements, the
Applicant argues that the Officer’s obligation was to consider whether it had
made reasonable efforts to hire Canadians, pursuant to the factor set out in
section 203(3)(e) of the Regulations as follows:
(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;
[20]
The Applicant compares the statement in the Officer’s
notes that the employer does not meet the prevailing wage requirements, where
the relevant section of the Regulations is expressly referenced, to the
statement that the employer does not meet the minimum advertising requirements,
which references neither section 203(3)(e) of the Regulations nor its language,
but instead references the TFWP.
[21]
While I agree with the Applicant that the
Officer’s analysis focuses upon its advertising efforts, I do not consider this
analysis to amount to a fettering of his discretion. While the Officer’s notes refer
to the advertising requirements of the TFWP, the June 8, 2015 letter which
conveys the decision states that it is based on the Applicant not having
demonstrated sufficient efforts to hire Canadians in the occupation. More
importantly, I agree with the Respondent’s argument that the manner in which
the Officer approached his analysis of the advertising efforts demonstrates
that he was not slavishly following the requirements of the TFWP. When the Officer
identified that there was a gap in the Applicant’s Job Bank advertisement, he
afforded it an opportunity to identify other advertisements that had been run
continuously up to the time of the LMIA decision.
[22]
In my view, the Officer’s approach was
consistent with that approved by the Court in its recent decision in Frankie’s
Burgers, where Chief Justice Crampton held as follows at paragraph 92:
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.
[23]
The Officer in the present case demonstrated
willingness to depart from the strict requirements of the TFWP, by considering
advertising by the Applicant other than through the Job Bank. I therefore
conclude that he did not fetter his discretion in his approach to the decision
under review. However, I nevertheless agree with the Applicant that the portion
of the Officer’s decision considering the evidence of its advertising efforts contains
a reviewable error in that it does not address the evidence related to the
other advertisements in a manner that would allow the Court to conclude the decision
to be transparent, intelligible and therefore reasonable.
[24]
I note that, at the hearing of this application,
when the Applicant raised this particular argument, the Respondent took the
position that the application did not challenge the Officer’s decision on this
basis. The Respondent submitted that the Applicant’s challenge to the Officer’s
approach to its advertising efforts was framed entirely as a fettering of
discretion rather than failure to consider the evidence. However, the Applicant
pointed out that its Reply Memorandum raised this argument as follows (with all
emphasis from the original):
4. It is submitted that in any event
the Applicant did put evidence before the officer that its Indeed advertisement
had been running continuously. That evidence is as follows:
From http://ca.indeed.com/job/supervisor-truck-driver-19a1a1c72676c776
on April 24, 2015, this ad was no longer active with the Indication “Indeed – 6
months ago”
The following explanation was
provided by ER on Mon 27/04/2015 11:29 AM: “As
per our conversation on Friday, April 24th, 2015, [PO] requested a
report from Indeed that indicates the Supervisor – Truck Driver posting
activity since its date of posting.
In speaking with our account
manager at Indeed, I have come to understand that their system does not produce
any such reports; Indeed, too, can only view the job created date. The account
manager indicated that the “job created” date (as per the image attached
herewith and also sent to you by [third party] r. Eastman on Friday April 24th)
is the original date of job posting. In the case were the job is cancelled or
paused, and subsequently re-posted, the “job created” date will automatically
update to the re-posted date. …[Emphasis added]
Respondent’s Record, p.51
5. The officer failed to address
this significant evidence in arriving at his refusal decision. It is submitted
that the officer’s refusal of the Applicant’s LMIA application was unreasonable
in that it does not fall within the range of acceptable outcomes that are
defensible in respect of the facts and law. Thus, this court’s intervention is
warranted.
New Brunswick (Board of
Management) v Dunsmuir, 2008 SCC 9 at para. 47
[25]
I agree with the Applicant that the issue of
the Officer’s consideration of the evidence surrounding the Indeed
advertisement was squarely raised by the Applicant in its written submissions.
I also find that the Officer’s decision does not demonstrate any analysis of
the evidence provided by the Applicant to the Officer to support its position
that the Indeed advertisement remained active and had been running
continuously. The above except from the Applicant’s Reply Memorandum quotes the
portion of the Officer’s notes that relates to the status of the Indeed
posting.
[26]
The April 27, 2015 communication from the
Applicant’s representative to the Officer quoted in those notes refers to an
attached image which identifies the original date of the job posting. That
image includes the entries “Status: Open” and “Created: 14-Oct-2014”. The Applicant argues that
these entries, combined with the explanation of the functioning of the Indeed
website received from the Applicant’s account manager and conveyed to the
Officer, demonstrates the advertisement to have been running continuously since
October 14, 2014.
[27]
It is not the Court’s role to analyze this
evidence or the apparent conflict between the statement in the Officer’s notes
that the advertisement was not available on Indeed and the evidence
subsequently provided by the Applicant, which it characterizes as establishing
that the Indeed advertisement remained active. The reviewable error is the
absence of any analysis by the Officer of this evidence to support a conclusion
on this issue.
[28]
The Applicant’s evidence was provided to the
Officer on April 27, 2015 in response to a request by the Officer on April 24,
2015 for a report from Indeed indicating the job posting activity since its
date of posting, which presumably demonstrates that the Officer had not yet
reached a conclusion as to the status of that advertisement. However, while the
Officer’s notes then refer to the evidence received on April 27, 2015, they
contain no resulting analysis. Earlier in the notes, in setting out the
rationale for the negative LMIA, the Officer refers to the gap in the Job Bank
advertisements and states that the Applicant failed to provide any other active
job advertisement posted prior to the March 17, 2015 LMIA application date.
However, this does not reveal how the Officer reached that conclusion in the
context of the apparently conflicting evidence surrounding the Indeed posting.
[29]
In this respect, I find the decision lacking the
transparency and intelligibility necessary to find it reasonable. As this
requires that the decision be set aside and the matter referred to another
officer for re-determination, it is unnecessary for me to consider the
Applicant’s arguments surrounding the wage rate considered by the Officer in
making his decision.
[30]
On the subject of the wage rate, the Applicant
proposed a question of general importance for certification for appeal, related
to whether an employer is required to advertise for a position at a wage above the
prevailing wage rate for an occupation where a prospective employee’s skills
warrant an increase above the prevailing wage. This question would involve
interpretation of section 203(3)(d) of the Regulations, which requires
assessment whether the offered wage is consistent with the prevailing wage for
the occupation. The proposed question arises from the Respondent’s defence of
the reasonableness of the Officer’s decision based on the conclusion that the
wage offered by the Applicant should have been higher than the prevailing wage,
due to the specific requirements of the candidate sought.
[31]
The Respondent opposes certification of this
question, arguing that it does not raise a matter of general importance. As my
decision does not turn on the arguments related to the wage advertised for the
position, and as the Applicant has prevailed in this application, this question
would not be dispositive of an appeal. I therefore decline to certify this
question, and it is not necessary for me to consider whether it can be
characterized as a question of general importance.
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