Docket: IMM-2500-15
Citation:
2016 FC 541
Ottawa, Ontario, May 16, 2016
PRESENT: The
Honourable Mr. Justice O'Reilly
BETWEEN:
|
PATUREL
INTERNATIONAL COMPANY
|
Applicant
|
and
|
MINISTER OF
EMPLOYMENT AND
SOCIAL
DEVELOPMENT CANADA
|
Respondent
|
JUDGMENT AND REASONS
I.
Overview
[1]
The applicant, Paturel International Company, operates
a lobster processing plant in Deer Island, New Brunswick under the name East
Coast Seafood. Paturel’s application for judicial review challenges a decision
of the Minister of Employment and Social Development Canada denying Paturel a
Labour Market Impact Assessment [LMIA] which would have allowed it to renew the
work permits of its employees under the Temporary Foreign Worker Program [TFWP]
under the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA],
and the Immigration and Refugee Protection Regulations, SOR/2002-227
(see Annex for all provisions cited). In 2015, an officer acting on behalf of
the Minister denied the LMIA because Paturel failed to meet the requirement to
pay the prevailing wage for shellfish workers in the region according to data
relating to the median wage for that occupation.
[2]
Paturel’s position is that the prevailing wage
has been set too high and the officer fettered his discretion by relying solely
on data relating to median wages. Further, it submits that the decision was
unreasonable because it relied on data that were not representative of the
actual wages paid to employees in the region where it operates. Paturel asks me
to quash the decision and order a reconsideration of its request for an LMIA.
[3]
I agree with Paturel that the officer fettered
his discretion, which resulted in an unreasonable decision. I will, therefore, allow
this application for judicial review.
II.
Factual Background
[4]
When deciding an LMIA application, an officer
must consider whether the employment of the foreign national would have a
neutral or positive effect on the Canadian labour market, including whether the
wages offered are consistent with the prevailing wage rate for the occupation
(s 203(1) of the Regulations).
[5]
According to the Minister, the prevailing wage
is determined with reference to the median wage published on-line by the
Government of Canada’s National Employment Service. Wage data derives primarily
from Statistics Canada’s Labour Force Survey but other sources may also be
considered, including Employment Insurance [EI] data.
[6]
In 2013, the prevailing wage was based on
provincial information. In 2014, regional EI figures were used instead, narrowing
the geographical scope of the data. In the EI reports, fish processing workers
(not just shellfish workers) stated that they earned between $10.00 and $57.00
per hour. Within this data set of 590 employees, the median wage was $13.79,
and the average was $14.51. The Minister relied on the former as the prevailing
wage for that occupation. This represented an increase of over 20% from the
earlier provincial figures of $11.25 per hour.
[7]
Paturel is the largest employer of shellfish
workers in the relevant region. None of its employees earns a wage as high as
that established by the Minister as the median for that occupation. Other
workers across Canada do earn higher wages than employees in New Brunswick (a
median of $12.00 per hour), but the statistics show that the median wage in the
province is $11.33 per hour. Job postings in the region offer between $11.49
and $12.43. Median wages in two regions adjacent to Paturel’s location, where
its competitors operate, are $11.09 and $11.20.
III.
Did the officer fetter his discretion?
[8]
The Minister argues that it was not unreasonable
for the officer to rely on median wage rates, calculated with reference to EI
data, given that other sources of information were unavailable or unreliable at
the time.
[9]
While the officer has broad discretion to rely
on the data that he considered to be most representative of the prevailing wage
in the region, I find that the officer’s sole reliance on EI data amounted to a
fettering of his discretion. A conclusion reached by a decision-maker who has
fettered his or her discretion is, per se, unreasonable (Stemijon
Investments Ltd v Canada, 2011 FCA 299 at para 21-25).
[10]
First, the Regulations do not specify how a
prevailing wage should be calculated. This is a matter clearly within the
Minister’s discretion. However, the Regulations do not stipulate that a failure
to meet the prevailing wage, alone, would be sufficient to defeat an employer’s
application. There are other factors that must also be considered to answer the
broader question of whether employment of a foreign national would have a
neutral or positive effect on the Canadian labour market (s 203(3)). The
Minister considered these factors and determined that the majority of them had
a positive effect, such that the employment:
•
Will or is likely to result in direct job
creation or job retention for Canadian citizens or permanent residents;
•
Is likely to fill a labour shortage;
•
Is necessary, as demonstrated by the employer’s
unsuccessful efforts to recruit within Canada.
[11]
Yet, in the end, the Minister’s decision relies only
on one factor, prevailing wage, without addressing how all the factors,
together, impact the Canadian labour market.
[12]
Second, while it was open to the Minister to consider
EI data in the calculation of the prevailing wage, in the circumstances, it was
unreasonable to rely solely on that data. Doing so amounted to a fettering of
discretion. The difference between the 2013 median wage and the 2014 median
wage, and the other available data, should have caused the officer to consider
whether the EI data was a reliable indicator of the prevailing wage for the
occupation.
[13]
The gap between the 2013 wage ($11.25 per hour)
and the 2014 rate ($13.79) on its face seems to be such a substantial increase
that it should have cast doubt on the suitability of the EI data to represent
the prevailing wage (an increase of over 20%). There are no circumstances
offered by the Minister to justify the rise other than a change in way the rate
was calculated. Therefore, it was improper, in my view, for the officer to deny
Paturel’s application solely on the basis that it had failed to meet an
arbitrary standard that had not previously been applied, and seemed
inconsistent with other available information. In sum, the officer did not have
regard for the overall criteria for approval of the LMIA – he concentrated
solely on the EI data, thereby fettering his discretion.
IV.
Conclusion and Disposition
[14]
The officer’s reliance on EI data as the single
source on which to base a calculation of the median wage in the industry, and
to use that data as the sole basis to reject Paturel’s application, amounted to
a fettering of the officer’s discretion. Therefore, the officer’s decision was
unreasonable. Accordingly, I will allow this application for judicial review
and order another officer to reconsider Paturel’s application. Neither party
proposed a question of general importance for me to certify, and none is
stated.