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Jul 25, 2014

Franchise owners launch constitutional challenge against TFWP

LMOs can be suspended ‘based on ever-changing public policy considerations,’ says law firm
    
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The owners of three franchise restaurants have launched a constitutional challenge against the federal government’s revamped Temporary Foreign Worker Program (TFWP). They are unhappy with several actions taken by the federal government regarding their Labour Market Opinions (LMOs).

Jeffrey and Miriam Staples made five Labour Market Opinion (LMO) applications in 2013. The first was approved and is still in good standing while one was refused and the other three were approved in October 2013, according to the Bellissimo Law Group in Toronto, which is representing the Staples.

The three LMOs approved in October were suspended by the Minister of Economic and Social Development on April 4, 2014. While the applicants were notified of this, they were not notified the minister also published their company names on his website.

The applicants were told there were reasonable grounds to suspect they had provided false, misleading or inaccurate information in their LMO applications, and advised that an investigation would take place over the next 180 days.

Since then, the Staples have been requested to provide documentation but have yet to be advised as to the nature of the minister’s suspicions. They have not yet been provided with notice nor have they been provided the opportunity to respond, said the court filings.

Public policy considerations

In suspending LMOs, as part of the Immigration and Refugee Protection Act (IRPA), the government must provide “public policy considerations,” a requirement that came into force on Dec. 31, 2013. These Ministerial Instructions are not subject to Parliamentary scrutiny and can be updated or amended at the discretion of the Minister of Economic and Social Development.

“The Supreme Court has found that if decision-makers need to interpret terms such as ‘public interest,’ that there is too little consistency in the result, opening a legislative provision for criticism under the Doctrine of Vagueness. Herein, Canadian employers need certainty to enable them to order their affairs,” said Bellissimo Law Group.

It’s unfair that the LMOs can be suspended based on what may be an ever-changing version of public policy considerations, leading to what the Supreme Court has termed a “standard-less sweep,” said the law firm. As a result, employers do not know the standards they are required to meet until after the minister publishes the information.

Investigations

In addition, the presumption in law is that new legislation does not apply retroactively, unless Parliament explicitly provides for it. And there is nothing in the IRPA that would permit Ministerial Instructions to apply to LMO applications and approved LMO certificates that pre-date the Ministerial Instruction.

So at the time the Staples made their LMO applications, they did not know the public policy considerations that would apply. But the restaurant owners do know they could face charges for misrepresentation and, if convicted, face up to five years in detention or have to pay up to $100,000.

“There are significant consequences that could flow from the minister’s investigation, affecting their liberty,” said the court filing.

The Supreme Court has said a civil investigation cannot be used as a foundation to discover evidence to be used in a penal proceeding.

“This is troubling, as the applicants are being compelled to provide documentation,” said the law firm.

Furthermore, employers can be compelled to answer questions.

“For these reasons, we have argued that sections 7 (liberty), 8 (unreasonable search and seizure) and 13 (self-incrimination) of the Canadian Charter of Rights and Freedoms are engaged and stand to be infringed by the process undertaken and by the Regulations,” it said.

Procedural fairness requires that the Staples be given notice and the ability to respond to the minister’s concerns before actions are taken that may have significant impacts on their rights.

“Here, the applicants had no notice or warning that their LMOs were to be suspended until it was already done. They have still not been provided with the allegations or given an opportunity to respond,” said the law firm.

Website publication

The process of investigations, leading to the publication of a Canadian employer on the Employment and Social Development Canada website, is provided for under the Regulations. But the Staples do not appear to have been investigated this way, said the court filing.

“The minister appears to have derived his power to publish the names of the applicants’ businesses on his website under section 30(1.43) of the IRPA, yet nothing in this provision mentions publication. In acting outside of the statutory scheme articulated by Parliament in the Regulations, the minister has exceeded his jurisdiction.”

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