Canadian Employment Law Today

Canadian HR Reporter, a Thomson Reuters business 2015 4 Foreign worker's language ability inadequate to perform job duties Foreign worker had positive Labour Market Opinion but visa officer felt worker's language skills and qualifications didn't meet requirements for truck driver position BY SERGIO KARAS I n the recent decision in Singh v. Can- ada (Minister of Citizenship and Im- migration), a visa officer's refusal to issue a work permit to an applicant who obtained a Labour Market Opinion (now Labour Market Impact Assess- ment) to work in Canada as a truck driver has been upheld by the Federal Court. Singh was a citizen of India and a perma- nent resident of Italy. He was offered a job in Canada, based on his work experience as a heavy truck driver. e employer did not require a high level of English profi- ciency for the position, and the job duties included "driving and operating trucks, maintaining and writing log books, oper- ate vehicles with all rules and regulations of the road and load being carried." Based on a positive Labour Market Opinion, Singh applied for a work permit and submitted proof of residency in Italy, an experience letter indicating current income and cit- ing driving experience in Italy, a bank statement, proof of Italian truck driver's licence, and English language test results. e employer was aware that Singh would need to convert his Italian truck driver's licence to a Canadian licence and obtain the air brake endorsement once he arrived in Canada. Work permit rejected over lack of ability and qualifications e visa officer refused the application for a work permit because Singh failed to demonstrate that he adequately met the job requirements of his prospective job in Canada, based on insufficient evidence of employment indicating trucking ability; low level of education, no satisfactory evi- dence of ability to communicate in English to the degree required to perform the job in Canada in a safe and efficient manner; and failing to provide a driver's licence of the type required in the Labour Market Opinion with the required air brake en- dorsement. In addition, the visa officer was not satisfied Singh would leave Can- ada at the end of his authorized period of stay. Singh challenged the refusal in Federal Court and argued that it was unreason- able. First, he contended that the language requirements were arbitrarily decided as there was no measure that the officer could point to on the level of proficiency required. He noted that the language test- ing scores, averaging 4.0 in the Interna- tional English Language Testing System were low, but a specific language ability was not prescribed for a truck driving job. Further, he argued that the Labour Market Opinion confirmation required oral and written English but not a specific level of proficiency. Last, the National Occupa- tional Classification (NOC) description did not require a particular level of English and the duties in the job offer only man- dated basic English language skills. Singh argued that the finding of insuf- ficient trucking experience by the visa offi- cer was unreasonable because he provided evidence of ten years of truck driving ex- perience in Italy, a letter of employment and proof of his Italian driver's licence. With regards to the visa officer's deci- sion that he would not leave Canada at the end of the period authorized in the work permit, Singh contended that it was un- reasonable because there was no evidence to suggest that he would not abide by Ca- nadian immigration law. e evidence of his stay in Italy as a legal resident, positive Labour Market Opinion, and his ability to apply for Permanent Residency in Canada under the Canadian Experience Class in- dicated otherwise. He relied on the deci- sion in Zhang v. Canada (Minister of Citi- zenship and Immigration), where a similar issue arose, to underscore his point. He also submitted that the officer breached the duty of procedural fairness by failing to provide him with the oppor- tunity to address his concerns with re- spect to language, work experience, and temporary intent. Singh relied on Gedeon v. Canada (Minister of Citizenship and Im- migration), to support his position. e respondent argued that it was rea- sonably open to the officer to find that the applicant was not a genuine temporary resident because he had not submitted sufficient evidence that he would be able to perform the duties of his prospective job in Canada. Also, since Singh failed to establish his ability to perform the du- ties of that job, it was reasonable for the visa officer to conclude that he was not a genuine temporary resident and that he would not have proper means to support himself. e mere fact that a positive La- bour Market Opinion was issued was not determinative of an applicant's ability to perform the work sought. e visa officer was under a duty to perform an indepen- dent assessment of that ability, as held in Grewal v. Canada (Minister of Citizen- ship and Immigration). In this case, Singh provided insufficient evidence of his truck driving ability. Further, the officer's assess- ment of his language ability was relevant to the assessment of his ability to perform his job, and that was reasonable. Officers are entitled to determine that an applicant requires language ability different from that stated in the Labour Market Opinion. On the procedural fairness issue, the respondent submitted that Singh was not entitled to an opportunity to address the officer's concerns because they arose directly from his failure to satisfy legal and regulatory requirements, rather than from the credibility, accuracy, or genuine nature of the information he submitted. Language requirement reasonable: Court e Federal Court agreed with the re- spondent's arguments on all points, and held that the officer's decision was rea- sonable and procedurally fair. e court noted that it was reasonable for the officer to request and consider language scores. e job offer stated that the applicant was required to read and maintain log books and understand the rules of the road. It was therefore reasonable for the officer to find that a certain level of English was required and that the applicant's language scores were insufficient to do the job in a safe manner. e court noted that, as in Grewal, it was open to the visa officer to determine the language level required for CASE IN POINT: IMMIGRATION The level of proficiency in Canada's official languages that a foreign worker must possess has been the source of some controversy in recent years. The Federal Court has attempted to address this issue in several cases, but it remains unsettled as visa officers have considerable discretion in this area. BACKGROUND

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