Temporary foreign worker didn’t inform immigration officer of additional outstanding workers’ compensation claims
Providing the right info
When temporary foreign workers come to Canada for a job, they must have a valid work permit that allows them to work for a specific employer. If that work permit expires, the foreign worker must apply to renew it. But what happens if the foreign worker can’t work due to a workplace injury and is fighting for workers’ compensation benefits?
The Federal Court of Canada recently heard a case in which a temporary foreign worker in British Columbia, who was receiving workers’ compensation benefits and had other claims in the works, applied to receive a temporary residency permit in order to continue his workers’ compensation claim after his work permit expired. The immigration officer didn’t have all the information on the status of his claims and the foreign worker didn’t provide it. As a result, he faced the end of his time in Canada.
Can an Immigration officer review a public document concerning an applicant for temporary status in Canada without providing him with the opportunity to address the information she found? In the recent Federal Court of Canada decision of Vidakovic v. Canada (Minister of Citizenship & Immigration) this issue arose along with the question of who has the duty of digging up all the relevant information related to an application by a foreign worker for temporary resident status.
In Vidakovic, a foreign worker who was a citizen of Bosnia-Herzegovina, entered Canada on a work permit. During the course of his employment, he suffered a leg injury while working as a temporary foreign worker in British Columbia. He submitted claims to workers’ compensation authorities seeking monetary compensation for his injury. In the course of his claim, his passport expired and he sought to renew it from the Bosnian Embassy. However, he was informed that due to an equipment malfunction, passports could not be issued.
Imminent expiry of work permit led to temporary resident application
In light of the fact that his work permit was about to expire, the foreign worker applied for a temporary resident permit for an additional year, indicating in his application that he had a claim pending at the Workers Compensation Appeal Tribunal in British Columbia. The applicant was apparently under the impression that the appeal would determine all of his compensation claims arising out of his injury. However, that tribunal determined only a portion of the claims, namely the claim for a permanent partial disability award for chronic pain, but did not determine the remainder of the claims such as a loss of earnings award or compensation for psychological conditions. The tribunal’s website indicated that the case had been decided.
Upon reviewing the application, the immigration officer reached a negative decision and communicated it to the foreign worker. The officer determined from the Workers’ Compensation Appeal Tribunal’s website that a final decision had been made on the claims and she was therefore satisfied that the applicant had had sufficient time in Canada to deal with his compensation appeal. Further, the officer indicated she was not satisfied that the issuance of a Temporary Resident Permit was warranted and found that the foreign worker had not presented evidence to suggest that he would be unable to obtain a travel certificate from the Embassy of Bosnia-Herzegovina that would allow him to return to his country. The foreign worker was left without status and was directed to leave Canada.
The Federal Court addressed the only issue arising out of the request for judicial review: Did the duty of fairness require the officer to follow up with the foreign worker regarding the Workers’ Compensation Appeal Tribunal decision? The court determined that was an issue of procedural fairness to which the standard of correctness applied and no deference was due to the officer’s decision. Therefore, the court engaged in an analysis of the facts.
Immigration officer lacked all the information on workers comp. claim
In order to determine whether the officer made an erroneous finding of fact with respect to the issue of whether the Workers’ Compensation Appeal Tribunal’s decision was final, the foreign worker argued that he was not aware the immigration officer had consulted the tribunal’s website and the officer did not inform him of her findings. The applicant also argued that the officer should have sought additional comments from him before coming to her decision so that he could have advised her that the Tribunal had not reached a final determination of his entire claim, and there were still outstanding claims.
The court rejected that argument. While the court noted that the tribunal’s website stated the applicant’s case had been decided, it held that the officer was entitled to rely upon the information on the website, which was also available to the foreign worker. The officer had no way of knowing that a case labelled “decided” was not, in fact, complete. The foreign worker was aware the determination of his case was relevant to his Temporary Resident Permit application and it was his responsibility to provide the officer with a copy of the Tribunal’s decision — which was in his possession — and, had he done so, the officer would have been able to take this into account in reaching her decision, said the court. The court held that the officer did not have the onus of investigating whether the case was not complete despite the supposed finality of the tribunal’s decision. The court determined that the duty of fairness is variable and contextual and it was not breached in this case.
The court also rejected the applicant’s argument that the officer erred in fact because her understanding of the tribunal’s decision was incorrect. The court noted that the officer did not have the full text of the decision before her and, therefore, she was entitled to rely on the tribunal’s website to determine whether the case had been decided. The court dismissed the application for judicial review.
Onus on applicant to provide relevant information
Vidakovic highlights the importance of providing all relevant information to an immigration officer when filing an application for temporary resident status or for a work permit. Immigration officers are not under a duty to make further inquiries when relying on information that is publicly available or solely within the applicant’s control. The applicant bears the onus of providing the authorities with all relevant information and to explain his situation clearly and thoroughly.
For more information see:
•Vidakovic v. Canada (Minister of Citizenship & Immigration), 2011 CarswellNat 2072 (F.C.).
Sergio R. Karas is a certified specialist in Canadian citizenship and immigration law by the Law Society of Upper Canada. He is past chair of the Ontario Bar Association Citizenship and Immigration Section, past chair of the International Bar Association Immigration and Nationality Committee and editor of the Global Business Immigration Handbook. He can be reached at (416) 506-1800 or [email protected].
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Why the denial of the application was reasonable
The Federal Court’s explanation of why the denial of Vidakovic’s application for a temporary residence permit was fair and reasonable, despite the fact the immigration officer didn’t have all the information on his workers’ compensation claim:
