Docket: IMM-4140-16
Citation:
2017 FC 514
Ottawa, Ontario, May 19, 2017
PRESENT: The
Honourable Mr. Justice LeBlanc
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BETWEEN:
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AYR MOTORS
EXPRESS INC
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Applicant
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and
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MINISTER OF
EMPLOYMENT WORKFORCE DEVELOPMENT AND LABOUR
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Respondent
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JUDGMENT AND REASONS
I.
Introduction
[1]
The Applicant is a company involved in long-haul
highway transportation services. For years now, a portion of its workforce has
been comprised of foreign workers hired under the Temporary Foreign Worker
Program (the TFW Program) established pursuant to the Immigration and
Refugee Protection Act, SC 2001, c 27 (the Act) and the Immigration
and Refugee Protection Regulations, SOR/2002-227 (Regulations). The purpose
of the TFW Program is to enable employers to hire foreign workers on a
temporary basis to fill immediate skills and labor shortages when there are not
sufficient Canadian citizens or permanent residents available to fill the
positions in question (Frankie's Burgers Lougheed Inc v Canada (Employment
and Social Development), 2015 FC 27, at para 41 [Frankie's Burgers]).
[2]
In order to access the TFW Program, an employer
must first seek- and obtain - from the Minister of Employment Workforce
Development and Labour (the “Minister”) a
positive Labour Market Impact Assessment (“LMIA”).
It is only then that an employment offer to a temporary foreign worker can be
made by the employer and that a work permit can be sought from - and delivered
by -Immigration, Refugees and Citizenship Canada.
[3]
On July 21, 2016, the Minister, after a previous
failed attempt, revoked three of the LMIAs previously issued to the Applicant
on the basis that the Applicant had provided “false,
misleading or inaccurate information” in its applications for these
LMIAs.
[4]
The Applicant is seeking judicial review of this
decision on the ground that the Minister breached the principles of procedural
fairness and that the decision is otherwise unreasonable.
II.
Background
[5]
The relevant facts of the present case can be
summarized as follows. Since its first participation in the TFW Program in
1999, the Applicant has employed approximately 550 temporary foreign workers
(TFWs). It says that TFWs currently represent ten percent (10%) of its
workforce.
[6]
Under paragraph 30(1.43) of the Act, the
Minister is empowered to suspend or revoke a LMIA where he/she is of the view
that public policy considerations that are specified in instructions given by
him/her justifies it. Since December 31, 2013, the instructions governing the
revocation of LMIAs are those specified in the Ministerial Instructions
Respecting Labour Market Opinions, 28 December 2013 (2013) C Gaz I, 3005
(Ministerial Instructions). Especially, section 2 of the Ministerial
Instructions, provides for three (3) situations that may lead to revocation,
one of which is if the employer provided false, misleading or inaccurate
information during the LMIA application process.
[7]
On November 4, 2014, the Applicant was informed
that the Minister would be reviewing its participation in the TFW Program. This
was the fourth review of the Applicant’s participation into the TFW Program in
two years. According to the Applicant, the previous reviews had found no
wrongdoing on its part.
[8]
However, the November 2014 review led, on March
30, 2015, to the revocation of the LMIAs at issue in the present instance. The
Applicant challenged that decision before the Court and on October 26, 2015, a
consent Order quashing the Minister’s decision was issued by the Court (Docket
No. IMM-1850-15). No particular context is offered as to why the Minister
consented to such Order.
[9]
Following that consent Order, the Minister
initiated a second review into the same LMIAs. The Minister’s concerns were
communicated to the Applicant in a letter dated December 4, 2015. They
were expressed in these terms:
“Based on this Review, Employment and Social
Development Canada/Service Canada (“Service Canada”) has concerns that Ayr may
have provided false or misleading statements in its applications for the above
referenced LMIAs with respect to the wages and transportation costs of the
temporary foreign workers (“TFWs”). More specifically, the information on our
files indicated that Ayr may have required their TFWs to pay for items with no
associated documentation or agreement and to pay their own transportation
costs, contrary to the attestations Ayr provided in its LMIA applications.
Furthermore, although Ayr has provided some explanations on deductions such as
“Tractor Expense” “Fine Expense” and “Payroll Advances”, it did not provide any
documentation to demonstrate that agreements were signed between AYR and the
foreign worker allowing for these specific deductions”.
[10]
The Applicant was invited to “provide additional information and clarification to address
Service Canada’s concerns” by December 21, 2015. In particular, the
Applicant was requested to provide specific documentation to demonstrate its
compliance to the TFW Program, namely (i) signed documentation/agreements
pertaining to TFW’s wages deductions and (ii) documentation establishing that
the Applicant had paid up front TWFs’ transportation costs when the TWFs were
coming in from another country or another location in Canada.
[11]
By letter dated December 17, 2015, the
Applicant, through its counsel, responded to the Minister’s concerns. It denied
having provided false or misleading information in relation to the TFWs’
transportation costs and wage deductions and explained why. It also contended
that any violation of the TFW Program would have been inadvertent and
administrative in nature. It further claimed that any such violation “was not blameworthy as it was not in the nature of an abuse
of the system nor an abuse of TFW’s”. At most, these problems or
irregularities were oversights which had been corrected since.
[12]
The Applicant also urged the Minister to
consider its compliance history with the TFW Program’s requirements and
continued cooperation with TFW Program’s officials in the conduct of their
investigation. Finally, the Applicant claimed that if the LMIAs at issue were
to be revoked by the upcoming decision, it would be punished beyond the maximum
punishment provided by the TFW Program by being barred from the TFW Program for
a longer period than the two years prescribed by the Program as a result of the
bar imposed in relation to the March 30, 2015 decision and the one that would
ensue a new decision revoking these LMIAs.
[13]
On March 3, 2016, claiming that the Minister was
unduly delaying its review of the three impugned LMIAs as well as of a pending
LMIA request, the Applicant filed a second judicial review application in the nature
of a mandamus (Docket No. IMM-936-16). Leave was granted by the Court in
June 2016.
[14]
On July 21, 2016, the Minister issued the
impugned decision, holding that the Applicant had provided false, misleading or
inaccurate information in its requests for these LMIAs by not paying
transportation costs in advance and by not providing written agreements for
deductions taken from TFWs’ wages as required by the TFW Program.
[15]
As a result to the July 21, 2016 decision, the mandamus
proceedings were held to be moot by Order of this Court dated August 29, 2016.
The Applicant then filed the present judicial review proceedings.
III.
Issues and Standard of Review
[16]
As indicated at the outset of these Reasons, the
Applicant claims that the impugned decision is flawed in two respects; that is
by having been rendered in violation of the principles of procedural fairness
and by being unreasonable.
[17]
In my view, the determinative issue in this case
is procedural fairness. It is trite law that questions of that nature are
reviewable on the correctness standard, which means that no deference is owed
to the decision-maker in this respect (Canada (Citizenship and Immigration)
v Khosa, 2009 SCC 12, at para 43).
[18]
As a result, there will be no need to determine
whether the Minister’s decision is reasonable or not.
IV.
Analysis
[19]
The requirements of procedural fairness are
flexible and will vary according to the specific context of each case (Frankie's
Burgers, at para 73; Baker v Canada (Minister of Citizenship and
Immigration), [1999] 2 S.C.R. 817, at para 21 [Baker].
[20]
Baker sets out a
non-exhaustive list of factors that are relevant in the determination of the
duty of procedural fairness owed in a given set of circumstances. Recently, in Frankie's
Burgers, which concerned the denial of applications for Labour Market
Opinions (renamed LMIAs on June 20, 2014), the Court held that a consideration
of these factors led to the conclusion that the requirements of procedural
fairness in such context were relatively low. It so concluded on the ground
that,
(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)”
(Frankie's
Burgers, at para 73)
[21]
The Applicant contends that where an LMIA is
being revoked as opposed to being denied as was the case in Frankie's
Burgers, an elevated standard of procedural fairness is required. However,
there is no need to embark on this analysis as I am of the view that even the
most basic requirements were not met in this case. Here is why.
[22]
These most basic requirements entitled the
Applicant to know the case against it and to make representations to the
decision-maker, which in this case, is the Minister herself, not her officials.
The Applicant did have the opportunity to respond to the Minister’s concerns
but its submissions did not make their way to the Minister. This is, in my
view, the fundamental and determinative flaw with the process that led to the
Minister’s decision. In other words, the Applicant was not given a meaningful
opportunity to be heard.
[23]
A review of the document that was before the
Minister, which is a memorandum prepared by her officials (the Memorandum),
reveals that the gist of the Applicant’s position was not conveyed to the
Minister. All it says is that the Applicant could not demonstrate that it had
paid up front the transportation costs and that it was unable to produce
written agreements or a responsible explanation for deductions from TFWs’ wages
that were not covered by federal or provincial law. It does not convey the
Applicant’s position that it is not a requirement of the TFW Program to pay
transportation costs in advance or that wage deductions not covered by federal
or provincial law were made with the full consent of the TFWs concerned.
Furthermore, none of the Applicant’s submissions which could have enabled the
Minister to appreciate the nature of the alleged misleading or incorrect
information nor any mention of the Applicant’s overall compliance with the TFW
Program over the years, can be found in the Memorandum.
[24]
This is all the more surprising that there is on
record a detailed 6-page chart outlining side by side the Minister’s concerns,
the Applicant’s response to these concerns and an analysis of the Applicant’s
response. However, as counsel for the Respondent acknowledged at the hearing,
this chart was not before the Minister when she made the decision to revoke the
MLIAs at issue in July 21, 2016. The only piece of information that was before
her was the Memorandum.
[25]
I appreciate the fact that the volume and
complexity of modern decision-making in a regulatory setting such as the
present one necessitates resort to many sources, including officials not
charged with the responsibility of deciding the matter (Armstrong v Royal
Canadian Mounted Police, [1994] 2 FCR 356 citing Khan v College of
Physicians and Surgeons of Ontario (1992), 9 OR (3d) 641 (C.A.), of the
Court of Appeal of Ontario). However, this does not supersede the need to
satisfy the applicable procedural fairness requirements in any given case.
Here, again, I am struck by the fact that the Memorandum only conveys the
officials’ conclusions as to the Applicant’s alleged non-compliance with the
TFW Program requirements. It conveys none of the Applicant’s submissions, be it
in a summary form or otherwise, and no analysis whatsoever of these
submissions, be it again in a summary form or otherwise. In other words, the
Minister revoked the LMIAs at issue without knowing what the position of the
Applicant on the allegations it was facing was and without the benefit of any
analysis in this regard. Yet, the chart mentioned above provided this
information but it was not shared with the Minister to any appreciable degree.
[26]
As the Memorandum shows, it was open to the
Minister to seek an oral briefing or to ask her officials that a member of her
staff be briefed. According to the Memorandum, she did not request any
briefing. However, have she had before her some idea of what the Applicant’s
position was, she and/or members of her staff may have asked more questions to
the officials in charge of the file and possibly come up with a different
decision.
[27]
I am also struck by the fact that pursuant to
paragraph 203(1)(e) of the Regulations, it is open to an employer, when its
employment offer is being assessed by Immigration, Refugees and Citizenship
Canada for the purposes of issuing a work permit, to justify its non-compliance
with some of the conditions for the issuance of the requested work permit,
including those relating to wage conditions. Section 203(1.1) lists recognized
justifications that may be accepted. Notably, section 203(1.1)(e) stipulates
that a failure to satisfy the criteria set out in paragraph 203(1)(e) is
justified if it results from an unintentional accounting or administrative
error made by the employer, if the employer subsequently provided compensation.
I note that a similar approach governs the sanctioning of an employer’s failure
to satisfy the TFW Program’s conditions, be it through a monetary penalty or a
period of ineligibility. In such instances, it is also open to the faulted
employer to offer some justification for the alleged wrongdoing, as evidenced
by sections 209.93 to 209.996 of the Regulations.
[28]
Given the close interconnection between the
LMIA, the employment offer and the ensuing work permit, the Minister may have
been inclined to exercise her revocation authority under the Ministerial
Instructions in this case in a way that would have allowed, as the Regulations
do, some consideration for the justifications put forward by the Applicant to
explain what, in its view, were, at worst, mere administrative oversights. This
has not been possible since the Minister did not have that information before
her.
[29]
As the Court stated in Tiedeman v Canada
(Human Rights Commission) [1993] FCJ No. 667 at para 12, “[t]o solicit the representations of a party and,
subsequently, to fail to consider them, renders hollow the hallowed principle
of the right to be heard”. This is precisely what the Applicant, in my
view, is ultimately complaining of in the present case. It was deprived of the
right to be heard when and where it counted. Given the present case’s judicial
history, I would have thought that a more cautious approach in this regard
would have been taken in bringing the matter to the attention of the Minister
for decision.
[30]
For all these reasons, I find that the
Applicant’s basic right to be heard in a meaningful way was not respected. As
the Supreme Court of Canada stated in Lakeside Colony of Hutterian Brethren
v Hofer, [1992] 3 S.C.R. 165 [Hofer], natural justice “requires procedural fairness no matter how obvious the
decision to be made may be”. In other words, it may not change anything
ultimately to the decision to be made, but this is what the law requires (Hofer,
at p 222).
[31]
The present judicial review application will
therefore be granted and the matter remitted to the Minister for
redetermination.
[32]
As the parties were not prepared at the hearing
to make submissions on certification, I indicated that I would accept written
submissions on this issue once my decision was rendered. The parties are
therefore given 30 days from the release of these Reasons to make submissions
on this issue. These submissions shall be provided by letter to the Court’s
Registry in Ottawa, Ontario, and shall not exceed three (3) pages.
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