Employer job requirements deemed excessive in foreign worker case

Employer claimed there were no qualified Canadian candidates, but officer found requirements were too high and excluded existing Canadian workers

All Canadian employers looking to fill positions must first look for Canadian job candidates before looking abroad for foreign workers — and be able to prove there are no Canadians who qualify. To help with this determination, occupations have specific requirements outlined in National Occupational Classifications (NOC). However, this means if an employer wants a worker who can do more than what’s specified in the NOC for an occupation, it may not be able to hire temporary foreign workers if the extra requirements exclude Canadian workers.

 

The question of whether a temporary foreign worker program (TFWP) officer may determine if employer job requirements are excessive when requesting a Labour Market Impact Assessment (LMIA) has been the subject of much discussion amongst members of the Immigration Bar and the employers they represent.

In Fredy’s Welding Inc. v. Canada (Minister of Employment and Social Development), the Federal Court of Canada held that a TFWP officer can research an occupation in order to interpret the requirements of a specific position in the National Occupational Classification (NOC).

The employer applied for a LMIA in order to hire a temporary foreign worker for the position of welder, a skilled trade described in the NOC as “welders and related machine operators.” The employer stated in the application that it was looking for a welder with experience in gas tungsten arc welding, along with one to two years of experience in maintaining and repairing the equipment used for welding, including diesel generators. The employer stated that despite extensive recruitment efforts, it had been unable to find a Canadian or permanent resident for the position. The TFWP officer spoke to the employer and its representatives on several occasions, requested further information — which was provided — and contacted third parties to make inquiries, but ultimately refused the application.

The refusal was based on the officer’s finding that the requirement of mechanical experience was not consistent nor essential for the position of welder. The officer referenced several third-party sources of information, noting that there was high unemployment in Manitoba and she had contacted the Winnipeg Welders’ Union, which confirmed there was no labour shortage in the province. She considered the wages offered unacceptable based on the excessive position requirements set by the employer. The officer, in researching the occupation, contacted the Canadian Welding Association and the president of a company that repairs, maintains, and services diesel generators. She advised the employer that the additional skills of mechanical experience seemed excessive. The employer sought judicial review.

The Federal Court identified two issues to be decided. First, whether there was a breach of procedural fairness and, second, whether the decision was reasonable.

The court held that the duty of procedural fairness is an issue of law reviewable on a standard of correctness. On the other hand, the standard of review that applies to an officer’s LMIA decision is that of reasonableness. Reasonableness is concerned with the existence of justification, transparency, and intelligibility within the decision-making process but also with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. The Federal Court has previously held — in Gulati v. Canada (Minister of Citizenship and Immigration) and Shetty v. Canada (Minister of Citizenship and Immigration) — that deference should be shown to an officer’s interpretation of an NOC description.

With regards to the issue of breach of procedural fairness, the employer argued that the officer decided, in her opinion and based on extrinsic evidence, that to seek a welder with mechanical experience was an excessive requirement, and that she should have afforded the employer the opportunity to participate in the discussions she held with third parties.

The respondent countered that the officer advised the employer and its representatives of her consultations and provided them with an opportunity to respond, but there was no authority supporting the employer position that it ought to have been afforded a participatory role in the consultations.

The court held that a breach of procedural fairness did not derive from the officer’s decision to consult with third parties. The court affirmed previous decisions that, in assessing an LMIA, the degree of procedural fairness owed to an applicant is relatively low. However, the court also noted that while the content of the duty may be low, it is by no means nonexistent, as held in Kozul. The court distinguished Kozul, where the information obtained by the officer directly challenged the applicant’s view as to the existence of a labour shortage, and the officer denied to the applicant an opportunity to comment or offer evidence to contradict the undisclosed information. However, in Fredy’s Welding, the officer made extensive notes documenting the high unemployment in Manitoba for the position of welder, she spoke with the Winnipeg Welders’ Union, and gathered information from other sources, all of which was explained to the employer during telephone calls. While the officer did not disclose the source of her information, she indicated the substance of her concerns to the employer, unlike the situation in Kozul. Further, the officer also consulted with the Canadian Welding Association with regards to the specific requirement set by the employer that the position required the maintenance of the diesel generator, and she was told that the requirement was not part of a welder’s job duties. She also disclosed that information to the employer and advised them that the requirement seemed excessive, and while she did not specifically mention the Canadian Welding Association, she indicated to the employer that the information was confirmed by welders associations across Canada. The applicant was afforded an opportunity to respond in that context. Therefore, the court found no merit in the employer’s argument that it should have been privy to those discussions. The court was not persuaded that in the circumstances of the case, the duty of procedural fairness was breached.

With regards to the second issue set out by the Federal Court — whether the officer’s decision was reasonable — the court rejected the employer’s argument that the officer mischaracterized the requirement for diesel generator maintenance. Affidavit evidence was presented by the employer indicating that, because the job locations were often remote, it was necessary for a welder to make adjustments and repairs to the equipment. This was apparently the subject matter of several discussions between the officer and employer representatives. The court held that even if the officer erred in understanding the context in which the mechanical experience was required, her finding that the requirement to know how to repair diesel generators was excessive and the refusal was reasonable given the evidence on the record before her. The NOC description did not specifically require that a welder must operate, maintain, and repair diesel generators as part of the duties of the position. On the contrary, the officer had evidence supporting her finding that this requirement was excessive. Her observation that the employer eliminated local candidates that did not have the required diesel generator maintenance and repair experience could explain why no one could qualify for the position. Further, it was reasonable for the officer to consider the fact that a welder who was already employed by the applicant did not have this additional skill, which was so unique. In the view of the court, the officer’s interpretation of the NOC requirements was reasonable and the mechanical experience required by the employer was excessive for the position.

The court concluded that the decision reached by the officer was in the range of possible, acceptable outcomes that were defensible on the facts and the law.

For more information see:

Fredy’s Welding Inc. v. Canada (Minister of Employment and Social Development), 2017 CarswellNat 6 (F.C.).

Gulati v. Canada (Minister of Citizenship and Immigration), 2010 CarswellNat 4178 (F.C.).

Shetty v. Canada (Minister of Citizenship and Immigration), 2012 CarswellNat 4506 (F.C.).

Kozul v. Canada (Minister of Employment and Social Development), 2016 CarswellNat 6255 (F.C.).

 

Sergio R. Karas, the principal of Karas Immigration Law Professional Corporation, is a certified specialist in Canadian citizenship and immigration law by the Law Society of Upper Canada. He is co-chair of the ABA Canada Committee, Section of International Law, 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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