Docket: IMM-2227-16
Citation:
2017 FC 546
Ottawa, Ontario, June 2, 2017
PRESENT: The
Honourable Madam Justice Heneghan
|
BETWEEN:
|
|
TAVORA SEA
PRODUCTS CO. LTD.
|
|
Applicant
|
|
and
|
|
THE MINISTER OF
EMPLOYMENT AND SOCIAL DEVELOPMENT CANADA
|
|
Respondent
|
JUDGMENT AND REASONS
[1]
Tavora Sea Products Co. Ltd. (the “Applicant”)
seeks judicial review of the decision of a Foreign Worker Officer (the
“Officer”), a delegate of the Minister of Employment and Social Development
Canada (the “Respondent”), to issue a negative Labour Market Impact Assessment
(“LMIA”).
[2]
The Applicant is a seafood manufacturer and
distributor. It sought a LMIA for the position of fishmonger. The Applicant
submitted an application form for the LMIA and that application included
information about the efforts made to find an employee to fill the position.
[3]
In determining the application, the Officer sought
the opinion of Mr. Barber, a former supervisor for Loblaws Toronto Area in the
Fish Department. The Officer relied on this opinion without disclosing its
existence to the Applicant and without giving the Applicant an opportunity
to respond to it.
[4]
Among other arguments, the Applicant pleads that
the reliance of the Officer upon the evidence of Mr. Barber without giving it
the opportunity to address it resulted in a breach of procedural fairness.
[5]
Shortly before the hearing of this application,
the decision in Kozul v. Canada (Minister of Employment and Social
Development), 2016 FC 1316, was released. In that decision, Mr. Justice Boswell
found that similar facts gave rise to a breach of procedural fairness and
allowed the application for judicial review.
[6]
Upon the hearing of the within application,
Counsel for the Respondent conceded that the Officer’s reliance upon the
evidence of Mr. Barber, without allowing the Applicant to comment on that
evidence, was a breach of procedural fairness.
[7]
In spite of this concession, the Respondent
argues that the Officer reasonably found that the Applicant failed to make
reasonable efforts to hire or train Canadians. He submits that the ultimate
decision is reasonable, as per the decision in Dunsmuir v. New
Brunswick, [2008] 1 S.C.R. 190 at paragraph 47. In that decision, the
Supreme Court of Canada said that the standard of reasonableness
requires that the decision be justifiable, intelligible and transparent, and
fall within a range of acceptable outcomes.
[8]
In these circumstances, I am satisfied that the
decision of the Officer cannot withstand the standard of correctness that
applies to issues of procedural fairness.
[9]
I am not persuaded by the Respondent’s
submissions that I should exercise my discretion to effectively waive the
breach of procedural fairness. The Applicant is entitled to a fair assessment
of its application. It did not receive that fairness.
[10]
In the result, the application for judicial
review is allowed, the decision of the Officer is set aside and the matter is
remitted to another Officer for re-determination. There is no question
for certification arsing.
Email this Content