Canadian HR Reporter

CANADIAN HR REPORTER August 8, 2016 EMPLOYMENT LAW 5 Sergio Karas Legal VieW RECRUITING FINANCIAL PROFESSIONALS? O er positions to over 200,000 Members Highly targeted advertising Immediate matching resume database access FOR MORE INFORMATION, cpacanada.ca/CPASource TELEPHONE•416 204 3284•EMAIL•TGardiner@cpacanada.ca 14-126a_EN_CPAsource_fullpagead_9.625x7.indd 1 1/5/2016 3:24:31 PM Ad guidelines for foreign workers in spotlight with Federal Court ruling Ruling highlights inconsistencies in requirements around TFWP applications Advertising guidelines published by Ser- vice Canada for Labour Market Impact Assessment (LMIA) applications have become a contentious issue between employers seeking to hire foreign work- ers and Temporary Foreign Worker Pro- gram (TFWP) offi cers adhering to a strict interpretation of those guidelines. In a recent decision, the Federal Court quashed a refusal to issue a positive LMIA where breaks in advertising were considered by the TFWP offi cer as a failure by the employer to meet the test of having made reasonable eff orts to hire a Canadian, as required by the regulations. In Charger Logistics Ltd. v. Canada (Minister of Employment and Social Development), the em- ployer, a Canadian logistics and transportation company operat- ing a fl eet of 200 trucks moving freight across Canada, the United States and Mexico, advertised for the position of supervisor of truck drivers at the Service Canada Job Bank, Indeed and Workopolis websites. Sixty candidates applied and 10 were interviewed because they had the requisite work expe- rience. Of the 10 candidates, only four spoke Spanish — a job re- quirement — and none were suit- able for the position. So the company applied for a LMIA to hire a temporary foreign worker. e offi cer reviewing the application contacted the employ- er and expressed concerns regard- ing the wage to be paid, arguing it was not above the median salary for the province, and also indicat- ed that the search for an individ- ual with the qualifi cations sought by the employer, which included a degree in business administra- tion, would require a higher wage to attract a qualifi ed candidate. Further, the offi cer indicated to the employer that the adver- tisement on the Job Bank was no longer available at the time of re- viewing the application, and that the Indeed one could not be found any longer. e employer provid- ed an explanation concerning the functioning of the Indeed website based on consultation with its ac- count manager. Notwithstanding the employer's attempts to clarify its eff orts, the offi cer refused the application. e Federal Court character- ized the issues that had to be decided as whether the officer fettered his discretion by treating the advertising guidelines as man- datory, and whether the offi cer's refusal was unreasonable with respect to the prevailing wage, given the evidence presented by the employer. As held in Frankie's Burgers Lougheed Inc v. Canada (Minister of Employment and Social Devel- opment), the applicable standard of review was that of reasonable- ness. Therefore, the court had to consider whether the LMIA refusal was reasonable in the circumstances. e employer argued that sec- tion 203(1)(b) of the Immigration and Refugee Protection Regula- tions conferred discretion on the offi cer to determine whether the employment of the foreign na- tional was likely to have a positive effect on the Canadian labour market. e regulation specifi cal- ly set out seven factors that could be taken into consideration in as- sessing an off er of employment to a foreign worker — and none mandated minimum advertising. e employer noted the court's previous ruling that reading a mandatory requirement where none existed was tantamount to fettering discretion. e employer submitted that the offi cer should have taken into consideration the totality of the evidence to deter- mine whether Canadian citizens or permanent residents would be hired or trained for the position, as required by one of the factors set out in the regulations. Since the offi cer only assessed whether the minimum advertis- ing guidelines were met, he did not consider all the steps taken by the employer to fi ll the position. The employer also contended that it had provided evidence that the Indeed ad had been running continuously. The respondent officer took the position that the employer stopped advertising the position in various websites and that the minimum advertising provisions required that advertising eff orts be continuous until a decision in an application was reached. e court quashed the LMIA refusal and held that the offi cer failed to provide an intelligible and transparent rationale as to why the employer's advertising ef- forts were insuffi cient. e court held that the offi cer's approach was consistent with the decision in Frankie's Burgers, where it was REVIEWABLE > pg. 16 e offi cer did not consider all the steps taken by the employer to fi ll the position.

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