Canadian Employment Law Today

Canadian HR Reporter, a Thomson Reuters business 2015 May 27, 2015 | Canadian Employment Law Today ABOUT THE AUTHOR SERGIO R. KARAS Sergio R. Karas, 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 Past Chair of the Ontario Bar Association Citizenship and Immigration Section, Past Chair of the International Bar Association Immigration and Nationality Committee, Co-Chair of the Canada Committee, American Bar Association, Section of International Law, and Editor of the Global Business Immigration Handbook. He can be reached at (416) 506-1800 or karas@karas.ca. a position. In that case, Grewal had applied as a temporary foreign worker. His applica- tion was rejected as the visa officer was con- cerned that he might overstay his permit, and found that he did not have a sufficient command of English to carry out the du- ties of the truck driver position. Grewal had equal or higher language scores than Singh in the present case. Also, as in Grewal, it was clear that the officer thought about the language requirement and explained why she considered that a greater level of Eng- lish proficiency was required. In Grewal the court held that "findings on language levels for temporary foreign workers are highly discretionary decisions, on which there is little jurisprudence… e visa officer was required to make findings based on the evi- dence before her and there is no evidence in the present case that she exercised her dis- cretion capriciously or unreasonably." e court further held that a positive La- bour Market Opinion is not determinative of how a visa officer must exercise her dis- cretion, and visa officers are entitled to de- termine that an applicant requires language ability different from that set forth in the Labour Market Opinion and job offer if rel- evant to the performance of the job duties. All the Labour Market Opinion portion of the process does is to test the labour market need, and not the attributes of the individ- ual, which are the responsibility of the visa officer, as established in Chen v. Canada (Minister of Citizenship and Immigration). e court noted that further guidance was found in the applicable version of the Citizenship and Immigration policy manual, which indicated that immigration officers should not limit their assessment of language or other requirements to perform the work sought to those described in the Labour Market Opinion. ose language require- ments should be part of the officer's assess- ment of the applicant's ability to perform the specific job sought. e officer can con- sider the specific work conditions and any arrangements the employer has made, and the terms in the actual job offer, in addition to general requirements set out in the NOC description: Foreign Worker Manual, s. 8.3. e court also agreed with the respondent that the finding by the visa officer that the job offer letter was insufficient was also reason- able. e applicant failed to prove that he could fulfill the duties of the job as the refer- ence letter stated that he worked in Italy only as a driver, not as a truck driver and does not describe his duties. It was therefore impossi- ble to know if the work in Italy was analogous to the intended work in Canada. e court held that the officer's finding that the applicant's temporary intent was not demonstrated was also reasonable: as the officer found that the applicant would not be able to fulfill the job duties, it fol- lowed that he would not be able to fulfill the terms of temporary resident status. e presumption that foreign nationals seek- ing to enter Canada are immigrants could therefore not be rebutted by the applicant. e visa officer was not required to pro- vide extensive reasons, under reasoning established in Quintero Pacheco v. Canada (Minister of Citizenship and Immigration). e visa officer provided sufficient reasons in this case and the decision was clear and intelligible. e applicant was not entitled to an opportunity to address the officer's concerns because they arose directly from his failure to satisfy the requirements of the legislation and the regulations in that he did not show that he was able to perform the work sought. ere was no issue as to the credibility, accuracy or genuine nature of the information submitted, which may have triggered the opportunity to address the officer's concerns. It was the applicant's duty to put forward sufficient materials to satisfy the officer that he could fulfill the job duties and he failed to do so. e mere fact that an applicant possesses a positive Labour Market Opinion is not determinative of his ability to perform the work sought. e officer properly under- took her duty to perform an independent assessment, with respect to language and other factors. Singh's application for judi- cial review was dismissed. is case highlights the importance of appropriate preparation of work permit ap- plications. Many applicants and employers believe that because they have obtained a positive Labour Market Impact Assess- ment (previously Labour Market Opinion) the application for a work permit is a mere formality. at is not the case. For more information see: • Singh v. Canada (Minister of Citizenship and Immigration), 2015 CarswellNat 250 (F.C.). • Zhang v. Canada (Minister of Citizenship and Immigration), 2006 CarswellNat 6134 (F.C.). • Gedeon v. Canada (Minister of Citizen- ship and Immigration), 2004 Carswell- Nat 4097 (F.C.). • Grewal v. Canada (Minister of Citizen- ship and Immigration), 2013 Carswell- Nat 2013 2780 (F.C.). • Chen v. Canada (Minister of Citizenship and Immigration), 2005 CarswellNat 4950 (F.C.). • Quintero Pacheco v. Canada (Minister of Citizenship & Immigration), 2010 Car- swellNat 2892 (F.C.). 5 Employment law blog Canadian Employment Law Today invites you to check out its employment law blog, where editor Jeffrey R. Smith discusses recent cases and developments in employment law. The blog includes a tool for readers to offer their comments, so discussion is welcome and encouraged. The blog features topics such as family status accommodation, workplace violence, wrongful dismissal, and cutting staff. You can view the blog at www.employmentlawtoday.com.

• Cover