Docket: IMM-170-17
Citation:
2017 FC 746
Ottawa, Ontario, July 31, 2017
PRESENT: The
Honourable Mr. Justice Martineau
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BETWEEN:
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LINAMAR
CORPORATION
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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]
The regulations adopted under the authority of
the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA] set out
the conditions governing the entry into Canada and the right to remain in
Canada of a foreign national wishing to work as a Temporary Foreign Worker
[TFW]. A foreign national (i.e. a person who is not a Canadian citizen or a
permanent resident) is not authorized to work in Canada unless, among meeting
other requirements, that person holds a work permit issued by Immigration, Refugees
and Citizenship Canada [IRCC]. Both condition of the Temporary Foreign Worker
Program [TFWP] and the need for an interested Canadian employer to obtain a
Labour Market Impact Assessment [LMIA] prior to engaging foreign nationals are
governed by the Immigration and Refugee Protection Regulations,
SOR/2002-227 [IRPR].
[2]
In the case at bar, Linamar Corporation
[applicant or employer] seeks judicial review of the decision rendered on
January 4, 2017, by Mr. Samir Mourani, a Senior Program Development Officer of
the Department of Employment Social Development Canada [ESDC], wherein the officer
denied the applicant’s application for a positive or neutral LMIA to employ
fifteen unnamed foreign workers as industrial electricians [the position].
[3]
For the reasons that follow, this application
for judicial review is dismissed.
Background
[4]
The applicant, a Canadian corporation, describes
itself as the largest employer in Guelph, Ontario. On October 10, 2015, the
applicant submitted through an immigration consultants firm, Matthews – Global
Immigration Law [Matthews or third party], a LMIA application, requesting a
positive or neutral LMIA to employ fifteen unnamed foreign workers as industrial
electricians. The National Occupational Classification [NOC] code for this position
is NOC 7242. The applicant indicated that the persons hired in the position
would be paid an hourly rate of $29 per hour. The applicant submitted in its
LMIA that this rate was advertised according to guidelines of ESDC’s website which
requires posting a position’s wage in the mandatory TFMP advertisements.
Furthermore, the applicant stated that the employment of foreign nationals
would allow it to maintain production and meet contractual obligations to
customers including General Motors, Ford and Chrysler. As part of their
recruitment process, the applicant had hired two Canadians among the other
candidates to work in the position. The applicant also provided to ESDC a Transition
Plan as to how it would reduce its reliance on foreign workers over the years.
[5]
On October 11, 2016, the Officer interviewed Ms.
Roxanne Rose, the employer’s Vice President, Global Human Resources, during
which she said that Linamar had been experienced over year growth of at least
20%. Ms. Rose also told the officer that all of Linamar’s manufacturing plants
work shift and that the reason for the shift work requirements is that all of
Linamar’s plants operate continuously 24/7 in order to meet its contractual
obligations. As such, Linamar requires employees to work “continental shift”, i.e. 12 hour shifts, and the
current rotation of shifts include 3 days on 2 days off. Due to this specific
schedule, Linamar has experienced a high number of turnovers due to employees
wanting to work straight days as opposed to around the clock shift work,
resulting in most of them leaving for competitors who can offer such work
schedules. She further explained that the employer was struggling to meet its
existing contracts.
[6]
The officer enquired why the employer could not
hire a subcontractor to meet those targets instead of hiring foreign workers.
Ms. Rose responded that relying on a subcontractor was administratively
expensive and that the quality of their work was unpredictable.
[7]
On October 14, 2016, Ms. Kim Ly, the third-party
representative from Matthews, provided the officer with the Linamar’s
consolidated statement of financial position showing that, from 2014 to 2015,
the applicant’s sales had increased from $4,171,561 to $5,162,450. Ms. Ly also
informed the officer about the apprenticeship programs offered by Linamar to
its existing employees. However, Linamar is limited as to how many can become
apprentice by the ratio established by Ontario’s Ministry of Labour. Yet again,
Ms. Ly highlighted that was another reason why the applicant needed to hire
fifteen qualified industrial electricians.
[8]
In determining whether there was a labour shortage
for the position, the officer assessed the applicant’s recruitment and referred
to several sources documents. According to his notes, the Ontario Job Futures
website stated that both that “jobs are expected to be
more difficult to find”, and that “on the other
and, jobs are easier to find; unemployment is less likely”. Faced with
this inconsistency, the officer communicated with Mr. John Grimshaw from the International
Brotherhood of Electrical Workers Construction Council of Ontario [IBEW CCO],
which represents eleven Local Unions across the province of Ontario, to learn
more about the employment realities of the position. During this conversation,
Mr. Grimshaw highlighted the differences between a “Construction
electrician” and an “Industrial electrician”
in the region, and explained why continental shifts are unfavourable and
generally result in a higher rate of pay. Mr. Grimshaw also stated that there
is a high unemployment rate among industrial/construction electricians, both
union and non-union, in the Guelph region. Also, in addition to sourcing
industrial electricians, construction electricians can completely fulfill the
duties of this role and, due to seasonal impact, construction electricians are
available throughout the year to fill labour needs. From this discussion, the officer
was under the belief that there was no labour shortage for the position
advertised by the applicant.
[9]
On October 28, 2016, the officer communicated
with Ms. Rose and Ms. Ly, two days after his conversation with Mr. Grimshaw, to
present findings resulting in a negative LMIA. According to his notes, he
presented them with the rational “with the sources used
for LMI”. Ms. Ly would have then agreed with most of his comments, but
disagreed “with the interpretation of the data”.
She allegedly stated that “retention issues are
indicative of Canadians not willing to take on the job the way it is presented
by Linamar therefore not being available”. The officer then explained
that “retention in this situation is indicative of a
working condition that is unappealing to the Canadian labour market resulting
in the qualified Canadians hired by Linamar leaving for other employment with
more favorable conditions”.
[10]
In his reasons, the officer determined that the
applicant was reasonably able to fulfill the terms of the offers of employment
pursuant to paragraph 200(5)c) of the IRPR. However, the officer found that the
applicant seeking to hire foreign workers to fulfill fifteen industrial
electricians was not consistent with the reasonable needs of the company.
Furthermore, he found that the applicant had not indicated that the employment
of foreign workers would lead to job creations or retention pursuant to
paragraph 203(3)a) of the IRPR, nor that there would be a transfer of skills or
knowledge to Canadians and permanent residents pursuant to paragraph 203(3)b)
of the IRPR.
[11]
Moreover, the officer noted that the posting of
the prevailing wage for industrial electricians ($29) was not sufficient to
account for the fact that it was also targeting construction electricians, who
typically receive a higher rate of pay, and that the position would require
working in unfavourable workings conditions. According to the officer, the
applicant should have advertised this position at the higher rate of the
internal wage band in order to demonstrate a reasonable effort to hire Canadian
citizens.
[12]
Finally, the officer stated that the employment
of the foreign workers was unlikely to fill a labour shortage pursuant to
paragraph 203(3)c) and that the employer had not made reasonable efforts to
hire or train Canadian citizens or permanent residents.
The present application
[13]
The applicant submits that there was a material
breach to procedural fairness and the impugned decision is unreasonable. Firstly,
the officer failed to inform the applicant about his exchange with Mr. Grimshaw
from IBEW CCO or the nature and the extent of the obtained information, while
it never got the opportunity to fully respond to this extrinsic information, as
the officer had already made his mind after his exchange with IBEW CCO.
Secondly, the officer did not provide sufficient reasons to support his
conclusion and his analysis of the relevant factors listed in subsection 203(3)
of the IRPR is incomplete.
[14]
In turn, the respondent does not deny that the officer
did indeed rely on extrinsic evidence. However, the applicant was allegedly
invited to respond on the obtained information, on several occasions. Consequently,
the respondent pleads that there has been no breach of procedural fairness or
principal of natural justice. Furthermore, the impugned decision is reasonable.
Moreover, even though its LMIA application was refused, the applicant is still
free to address the concerns raised by the officer in a new LMIA application.
[15]
As asserted by the respondent`s counsel during
the hearing, the TWFP enables Canadian employers to hire foreign workers as a
last resort, and on a temporary basis, to fill their genuine skill and labour
shortages when qualified Canadians and permanent residents are not available.
This was one of the key factors in the officer’s decision. Overall, the LMIA
application was rejected under subsection 203(1) of the IRPR essentially because
the employment of foreign nationals was unlikely to have a neutral or positive
effect on the labour market in Canada. Moreover, the officer issued a negative
opinion based on the following findings:
1) The employer did not sufficiently
demonstrate that there is a reasonable employment need;
2) The employer has not demonstrated
sufficient efforts to hire Canadians, pursuant to paragraph 203(3)e) of the
IRPR; and
3) Labour worker information does not
support a labour shortage for this position in this geographic region, pursuant
to paragraph 203(3)c) of the IRPR.
[16]
Both parties agree that the merit of the
impugned decision has to be reviewed under the standard of reasonableness given
that an opinion by ESDC regarding employment of foreign national likely to have
a neutral or positive effect on the labour market in Canada is a mixed question
of facts and law (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR
190; Construction and Specialized Worker’s Union, Local 1611 v Canada
(Citizenship and Immigration), 2013 FC 512, [2014] 4 FCR 549 at para 91 [Construction
and Specialized Worker’s Union, Local 1611]; Charger Logistic Ltd v
Canada (Employment and Social Development), 2016 FC 286, [2016] FCJ No 270
at para 9; Sky Blue Transport Ltd v Canada (Employment and Social
Development), 2017 FC 273, [2017] FCJ No 272 at para 15 [Sky Blue
Transport Ltd]). On the other side, whether the officer breached his duty
of procedural fairness is an issue of law reviewable on a standard of
correctness. On that note, the respondent states that it is not so much a
question of whether the decision or opinion is correct, but whether the process
followed in making the decision was fair (Canada (Citizenship and
Immigration) v Khosa, 2009 SCC 12; Kozul v Canada (Employment and Social
Development), 2016 FC 1316, [2016] FCJ No 1328 at para 8 [Kozul]).
No breach procedural fairness
[17]
The applicant first underlines that, although
the duty of procedural fairness owed by the officer is at the low end of the
spectrum, it is not inexistent. Based on the principles developed in Kozul
at para 10, the Court should analysed “whether
meaningful facts essential or potentially crucial to the decision had been used
to support a decision without providing an opportunity to the affected party to
respond to or comment upon these facts.”
[18]
There is no dispute between the parties that the
information obtained from Mr. Grimshaw of the IBEW CCO was extrinsic evidence.
However, the applicant contends that this information directly affected the
outcome of its LMIA, as it goes to the core of its LMIA, especially regarding
the labour shortage and Linamar`s effort to hire, recruit and train Canadian
citizens. During the hearing, the applicant’s counsel submitted that the “broad list of concerns” disclosed by the officer to
Ms. Ly, the third-party representative, was not meeting the criteria defined in
Kozul. For instance, the officer failed to inform the applicant that the
information was provided by a union representative. Had the officer revealed
the source of the information, the applicant’s representative would have
certainly assessed the information differently. As such, it was unfair that the
full extent of the information obtained by the officer from speaking with an IBEW
CCO representative was not completely disclosed to the applicant before he issued
the negative LMIA opinion.
[19]
Be that as it may, the applicant asserts that a
review of the officer’s notes show that it was not given an opportunity to
respond to the information obtained from Mr. Grimshaw. According to the
officer’s notes, on October 28, 2016, he sent an email to Ms. Rose, requesting
a time to discuss his decision on file, but later presented his findings
resulting in negative LMIA to the third party representative. Therefore, the
applicant pleads that, by the time the officer contacted Ms. Ly on January 4,
2017, the officer had already refused the LMIA Application. Denying the
applicant the opportunity to comment upon or offer counter evidence to contract
this undisclosed information was just as much a breach of procedural fairness,
for which the present Court should intervene.
[20]
I cannot agree with this position and, overall, I
endorse the arguments of the respondent.
[21]
First, I am convinced from the evidence before
this Court that the substance of the extrinsic evidence obtained from Mr.
Grimshaw was conveyed to the applicant’s third-party representative. As
submitted by the respondent, ESDC officers often base their assessment on the
information provided by the employer but also on any additional information
collected by the officers themselves, including information relating to labour
shortage and wages. It is also common practice that the officer will call the
employer or its representative before finalizing the decision – which it is
exactly what happened here. Indeed, the officer wrote in his notes that his
conversation with Mr. Grimshaw was disclosed to Ms. Ly, the applicant’s third
party representative, in a phone conversation held just two days after his
conversation with Mr. Grimshaw, and that she was given an opportunity to
respond to the information at that time. At this point, there is no reason for
the Court to doubt this statement, as the officer’s notes state that a list of
concerns was provided to this representative surrounding the applicant’s LMIA
(officer’s notes, applicant’s record at pages 11-12). Even in the absence of
relevant affidavit from the officer itself, I am satisfied that I can rely on
the officer’s notes which were contemporary gathered after each of his contact
with the applicant’s representatives. Nevertheless, there is no affidavit from Ms.
Ly to contradict this fact.
[22]
Turning again on the only relevant piece of evidence
before this Court - the officer’s notes, it is provided that Ms. Ly only
disagreed with the officer’s assessment of the labour market conditions. However,
the fact that she disagreed with this data does not mean that she was deprived
of her right to respond to it. According to the respondent, this entry shows
that the applicant, through its third-party representative, was provided with
an opportunity to respond to that information, which, in fact, it did through
its representative’s answer (Fredy’s Wedding Inc v Canada (Employment and
Social Development), 2017 FC 7, [2017] FCJ No 4 at paras 17-28 [Fredy’s
Wedding Inc]). Nevertheless, the officer called another time the
applicant’s third party representative on January 4, 2017, before finalizing
his refusal and issuing his decision. He then explained the rationale behind
all three grounds for his refusal with the sources relied on in reaching his
decision. The respondent underlines that, at this precise moment, the officer
was not bound to render a decision and, had the applicant provided new evidence
or arguments that would have altered his decision or required further fact
finding, the officer would have had to reconsider his decision.
[23]
With regards to this extrinsic evidence, this
Court has to assess whether the applicant’s representatives were informed of
the substance of the evidence, obtained from IBEW CCO, and whether they were
provided with opportunity to respond to it and make all the relevant
representations in relation thereto (El-Helou v Courts Administration
Service, 2012 FC 1111, [2012] FCJ No 1237 at paras 75-77).
[24]
In the present case, the substance of the
information was conveyed and the applicant has not demonstrated how the source
of the extrinsic evidence would have changed its submission. The fact that IBEW
CCO is known to represent unions in Ontario is not very relevant here, as the
applicant has not proven how the source of the information would have affected
its respond. As stated by Justice Shore in Ahmed v Canada (Employment and
Social Development), 2016 FC 197, [2016] FCJ No 214 at para 15, 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”. Furthermore, this refusal is not final and the
applicant may reapply and address the concerns raised by the officer in his
decision.
[25]
Overall, I am convinced that the applicant was
given an opportunity to respond to the officer’s concerns. Indeed, the evidence
shows that Ms. Rose and Ms. Ly were contacted on multiple occasions and that the
officer disclosed his findings on its LMIA and requested additional
information.
[26]
Secondly, and most importantly, the respondent’s
counsel has effectively demonstrated to the Court that the three grounds of the
officer’s refusal were based largely on the information conveyed by the
applicant’s representatives. Without going in details, the respondent underlined,
during the hearing, that the main topics of information provided by Mr.
Grimshaw, whether it was from: (1) the different types of electricians; (2) the
current labour market conditions; or (3) the working conditions, i.e.
continental shift (officer’s notes, page 8), were put to the attention of the
applicant. Indeed, we can see from the officer’s notes that both Ms. Rose and
Ms. Ly have provided counter information for each of those topics, either
earlier in the process or later on (officer’s notes at pages 3 and 4). Furthermore,
it seems clear that the idea of continental shift being unfavorable is nothing
new for the applicant as Ms. Rose had already confirmed to the officer that “workers are leaving to work for other companies who offer
straight shift” (officer’s notes at page 4, “second
contact” on October 11, 2016). Moreover, the other ground for the
officer’s refusal - the effort to recruit Canadian citizens, was based solely on
the information conveyed by the applicant and has nothing to do with the
information provided by Mr. Grimshaw.
[27]
I am satisfied that there was no breach of
procedural fairness, as the officer based his refusal not only on the extrinsic
information obtained from Ms. Grimshaw, which was disclosed, but also on the
information provided by the applicant’s representatives themselves. In light of
the above, the Court finds that the officer did not breach any procedural
fairness principles in assessing the LMIA.
Reasonable decision
[28]
Given the different factors provided at
subsection 203(3) of the IRPR upon which an officer must base a positive LMIA
assessment and the evidence on record, I am also satisfied that the impugned
decision is reasonable. Overall, the negative assessment of the officer rests
on the applicant’s failure to provide objective evidence on the labour
shortage, on the specific need for industrial electricians, on the lack of efforts
to advertise a job position with appealing conditions, or offering appropriate
wages to alleviate the continental work shift. This is a reasonable outcome in
light of the applicable law and the evidence on record.
Weighing of all the relevant factors
[29]
During the hearing, the applicant’s counsel
submitted that it all goes down to a broader issue of whether officers have to
weigh all the factors articulated in subsection 203(1) of the IRPR or whether
there is a factor that is determinative. In this case, the applicant contends
that the officer failed in both ways as he treats each element as a
requirements rather than a factor that must be weighed (Construction and
Specialized Worker’s Union, Local 1611 at para 144). However, the case law
is clear that ESDC officers must turn their minds to the overall impact, rather
than automatically refusing LMIA application once they determine that one
factor is negative (Paturel International Company v Canada (Employment and
Social Development), 2016 FC 541, [2016] FCJ No 528 at paras
10-11 [Paturel]). In the present case, the applicant submits that it is
not clear what the result of the officer’s weighing of the factors would have
been had the officer not committed so many reviewable errors by basing his
decision on the information obtained by IBEW CCO regarding the labor shortage
or the appropriate wage for industrial electricians. In any event, the
officer’s decision was unreasonable since the officer did not address how all
the factors defined at subsection 203(3), when read together, impact the
Canadian labour market.
[30]
The arguments made by the applicant are
unfounded. The case law establishes that it is unreasonable for an ESDC officer
to rely solely on one factor or one data. Doing so amounts to a fettering of
discretion (Seven Valleys Transportation Inc v Canada (Employment and Social
Development), 2017 FC 195, [2017] FCJ No 210 at para
32 referring to Paturel at paras 11-12). While I agree with the
applicant that the information obtained from IBEW CCO played a role in the
officer’s decision, the latter did not solely rely on this one source of data to assess the labour shortage or the
overall LMIA. From a reading of the officer’s notes, it is apparent that he seriously
questioned the reasonable efforts undertook by Linamar to offer an adequate
wage and appealing conditions for Canadian citizens to fill these positions.
Furthermore, the officer frequently required additional information from Ms.
Rose or his third party representative to have better understanding of the
labour situation, but also to understand the dynamic within Linamar.
[31]
As stated by Chief Justice Crampton in Frankie's
Burgers Lougheed Inc v Canada (Employment and Social Development), 2015 FC
27, [2015] FCJ No 53 at para 40, it is readily apparent from subsection 203(3)
of the IRPR that the reasonableness of the officer’s decision should be
assessed by reference to the ultimate test of whether “the
employment of the foreign national is unlikely to have a positive or neutral
effect on the labour market in Canada as a result of the application.” The
seven specific criteria set forth in paragraphs 203(3)(a) – (g) of the IRPR
reinforce this orientation, but do not in any way allude to or contemplate the
types of considerations or latitude that should assess the officer.
[32]
In the present case, the officer did consider
all the factors established at subsection 203(3) of the IRPR but ultimately concluded
that the issuance of a positive LMIA was unlikely to have a positive or neutral
effect on the labour market in Canada. Furthermore, the officer’s findings were
made following a detailed review of the LMIA application materials and his
notes are clear on every ground of refusal, whether it is on the applicant’s
failure to demonstrate reasonable efforts to recruit Canadian/permanent
residents, or that the advertised wage was too low with regards to the
prevailing shift. Even going through all the other grounds of the impugned
decision - other than the labour shortage, the applicant has not convinced me,
from all the errors raised in its lengthy submission, that the final outcome is
unreasonable.
Reasonable employment needs
[33]
The applicant submits that the officer erred in
his conclusion regarding the need for fifteen industrial electricians by
failing to consider four key elements. First, (1) he did not consider the fact
that the applicant is one of Canada largest automotive parts manufacturer or
(2) that it obtains approval from the Ministry of Ontario so that its employees
could work excess hours to meet demand. Furthermore, (3) the applicant needs
the foreign workers to improve its ratio of qualified electricians to
apprentices and, despite its employees working excess hours, it cannot even
maintain its existing commitments without extensively relying on third party labour
suppliers. Finally, (4) the officer erred in determining that a multi-billion dollar
automotive parts manufacturer with over 6,000 employees in Guelph did not have
a reasonable need for 15 additional industrial electricians. The applicant
contends that this unreasonable conclusion does not accord with the evidence on
record.
[34]
This position is unsubstantiated. As shown in his
notes, the officer did consider all the positive elements enumerated by the applicant,
but also the negative ones. Indeed, the officer notes from the ongoing contract
with Ford, executed in 2013, provided by the applicant, that there had been no
change in the applicant’s operational circumstances within the past four years
that would necessitate the hiring of foreign workers. Although the applicant
was experiencing certain operational hardships, same were apparently not enough
for the officer to conclude that they should alleviate through the hiring of
foreign workers. The officer also notes that, in addition to sourcing
industrial electricians, construction electricians can completely fulfill the
duties of this role and, due to seasonal impact, construction electricians are
available throughout the years to fill labour need. Given his findings on labor
shortage, it was reasonable for the officer to conclude that the applicant has
not demonstrated a reasonable employment needs.
Sufficient efforts to hire Canadian citizens or permanent
residents?
[35]
The applicant pleads that the officer made numerous
errors, which ultimately tainted his conclusion regarding Linamar’s efforts to
hire Canadian citizens.
[36]
First, the applicant submits that the officer
erred in consideration of the appropriate wage for the position. The officer
concluded erroneously that industrial electricians who work on continental
shifts are generally paid more than industrial electrician who do not. As a
matter of fact, the applicant points out that its advertised wage for the
position corresponds to the guideline published on the “Working
in Canada” website, a website regularly used to assess wages in the
TFWP, which states that prevailing wage for an industrial electrician in the
Kitchener-Waterloo-Barrie Region is $32 per hour while the prevailing wage for
construction electrician is $27 per hour. Nevertheless, the applicant contends
that the officer erred on the expected wage rate. His assumption that
construction electricians expect a higher rate of pay than industrial
electricians is not only highly speculative and unsupported, but also contrary
to the “Working in Canada website”. Accordingly,
the officer’s conclusion that construction electricians would expect to earn
more than industrial electricians is incorrect, speculative, and therefore
unreasonable.
[37]
Secondly, the applicant contends that the officer
failed to consider its “Transition Plan” in his
assessment under paragraph 203(3)e) of the IRPR. This disposition clearly
stated that the assessment can be both forward looking and look to previous
efforts. However, the officer focused entirely on previous recruitment efforts.
Contrary to his conclusion, the applicant’s Transition Plan, a mandatory TFWP
requirement, provides relevant information on how the employer will hire
or train Canadian citizen or permanent resident, by seeking out relevant
post-secondary institutions that have Skilled Trades Co-op programs or by
offering training and vocational improvement courses for employees, and by
specifically offer women and youth apprentices.
[38]
Overall, the applicant has tried to pinpoint
different elements of the officer’s analysis, for which it disagrees. Despite
this, I find that the officer’s analysis is not arbitrary or capricious, while
it is supported by the evidence or lack of same. Indeed, it was reasonable to
conclude that posting the prevailing wage for a job opportunity, which entailed
unappealing working conditions, did not show sufficient efforts to hire
Canadian citizens or permanent residents. Both the applicant’s representatives,
Ms. Rose, and Ms. Ly, acknowledged on several occasions that qualified Canadian
employees were leaving for better working conditions (i.e. to avoid continental
shift work) and, despite the requirement to work undesirable hours, they
confirmed that Linamar does not offer a shift premium to its employees.
[39]
As stated by the respondent, the applicant
advertised the employment opportunities at the prevailing wage, rather than at
the lower end of its internal wage band. Although there was apparently some
confusion with respect to the wage rate for the position, ultimately, the
applicant elected to advertise the positions at $29 per hour (the prevailing
wage rate) as opposed to $29.94 per hour (the lower ends of its wage hand). In
doing so, the applicant received twenty applications for Canadians or permanent
residents, only two of whom were qualified for the position. Nevertheless, the
fact that the applicant has hired Canadians as part of its job recruitment
process is not determinative of whether reasonable efforts have been made. In
short, it was reasonable for the officer to question the applicant’s efforts in
their hiring process since it advertised its position at the prevailing wage,
instead of at higher internal wage band, in condition where there was no labour
shortage and for shift work, identified by the applicant’s representative as an
unfavourable working condition.
[40]
With regards to the Transition Plan, I agree
with the respondent that since it was found that the applicant had failed to
demonstrate reasonable efforts to hire Canadian, a consideration of the applicant’s
future plans to hire Canadians citizens or permanent residents was immaterial
to the officer’s ultimate decision pursuant to paragraph 203(3)e) of the IRPR
(Babic v Canada (ESDC), 2016 FC 174, [2016] FCJ No 188 at
para 32).
[41]
Consequently, I find that the outcome reached by
the officer in this case fell squarely within the range of possible acceptable
outcomes.
Conclusions
[42]
This application for judicial review dismissed. No
question of general importance has been raised by the parties and none is
certified.
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