Canadian Employment Law Today

Canadian HR Reporter, 2020 4 Work permits and language proficiency THE IMMIGRATION and Refugee Protec- tion Regulations (IRPR) grant authority to an officer of Immigration, Refugees and Citizenship Canada (IRCC) to issue work permits to foreign nationals. They also state that an officer shall not issue a work permit if there are reasonable grounds to believe that the foreign national is unable to perform the work sought. These grounds can include language proficiency — if a foreign worker can't communicate in one of the country's two official languages, it's likely that a visa officer won't be convinced they can perform work in Canada. Work permits have language requirements An applicant for a work permit does not have an unqualified right to enter Canada. The level of procedural fairness to be ac - corded is low and does not require that applicants be granted an opportunity to address the visa officer's concerns. In Sulce, the applicant applied for a work permit as a stucco technician. The visa officer deter - mined that his proficiency in English was insufficient to perform the employment duties. The applicant argued that if it was unclear from the documentation on file, the visa officer should have taken steps to clarify what level of English language skills would be sufficient for the prospective po - sition by seeking further information. The court held that the language assessment was discretionary and it should not dis- turb the findings of an officer unless it can be established that this discretion was ex- ercised capriciously or unreasonably. The court ruled that an officer was not bound by the Labour Market Opinion — now re- named the LMIA — confirmation and was under a duty to conduct an independent assessment of the applicant's ability to perform the prospective job duties. There is a difference between an officer raising concerns about the credibility of the evidence submitted and the insufficiency of the evidence. Credibility issues warrant a duty to provide the applicant with an op - portunity to address the officer's concern. Insufficiency of evidence does not give rise to such a duty. In Sun v. Canada (Minister of Citizenship and Immigration), the appli- cant applied for a work permit to work as a manager in a spa and didn't provide any evidence of her language skills. The appli- cant argued that the officer, after determin- ing that her language proficiency level was not credible, should have afforded her an opportunity to address his concern. She further argued that the work permit appli- cation did not require her to provide proof of language ability. The court held that the officer's decision was based on insufficien- cy of evidence and not credibility issues and ruled that an applicant had to prove language ability as this was a requirement of the LMIA. The officer's decision was rea- sonable. While in Sun the court found that there was insufficiency of evidence, in Kaur v. Canada (Minister of Citizenship and Immigra- tion), the English language test results were considered doubtful. The applicant applied for a work permit to work as an in-home caregiver, but her application was rejected as she did not demonstrate ability to commu - nicate effectively in English — which raised credibility concerns about her language test certificate. The applicant argued that the of- ficer had failed to provide her with an op- portunity to address his concerns. The court held that the officer's decision did not show a detailed analysis or how it was determined that the applicant would be unable to per - form the work. The court granted the applica- tion for judicial review and ordered that the matter should be reconsidered by a different visa officer. Applicant must prove language competence The onus is on the applicant to provide sufficient evidence to establish language competence. In Sangha v. Canada (Minister of Citizenship and Immigration), the appli - cant applied for a work permit as a truck driver. The LMIA required verbal and writ- ten English language skills. However, the applicant did not submit any evidence to support his language skills. He argued that the officer was imposing a formal require- ment that was not necessary for the job. The court ruled that the officer was correct in considering the applicant's language skills and concluding that the he did not demonstrate sufficient language capabili - ties. The level of language required depends on the type of job, but basic communica- tion skills are a necessity. In Brar v. Canada (Minister of Citizenship and Immigration), the applicant applied for a work permit as a welder. The applicant attended an inter- view with the officer where he was not able to understand or answer questions in sim- ple English. The officer shared his concerns and gave the applicant an opportunity to respond, but he was not able to satisfy the officer and the application was rejected. The applicant argued that only proficiency in reading and not in verbal skills was nec - essary for the job. The court held that both written and verbal English were necessary. It was further held that the operational na- ture of a job did not rule out verbal English as a basic requirement. "Officers are entitled to consider a num- ber of factors in reaching a conclusion on the language proficiency required by the job and demonstrated by the applicant," said the court in Brar. "However, where a basic lack of comprehension emerges, the legislation posits the discretion to make a final determination in the hands of the officer under paragraph 200(3)(a) of the regulations." However, in the recent decision of Ul Za - man v. Canada (Minister of Citizenship and Immigration), the applicant applied for a work permit to work as a sweet maker in CASE IN POINT: IMMIGRATION Under the Temporary Foreign Worker Program, Canadian immigration law facilitates the hiring of foreign nationals who possess knowledge, talent and skills that are not available in Canada. This program requires an employer to obtain a positive Labour Market Impact Assessment (LMIA) from Employment and Skills Development Canada. However, a positive LMIA does not mean that the foreign national will automatically be issued a work permit. One of the hurdles in obtaining a work permit is demonstrating language proficiency in either of the two official languages, English or French BACKGROUND BY SERGIO KARAS Having skills not readily available in Canada doesn't necessarily make a foreign worker suitable to work here — they have to speak the language Many companies have had to consider the potential imbedded culture of discrimination lurking in their own workplaces.

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