Canadian Employment Law Today

Advertising guidelines for foreign workers in the spotlight Federal Court's quashing of application refusal highlights inconsistencies in how job advertising requirements are evaluated BY SERGIO R. KARAS I n a recent decision, the Federal Court quashed a refusal to issue a positive Labour Market Impact Assessment (LMIA) where breaks in advertising were considered by a Temporary Foreign Worker Program (TFWP) officer as a failure by the employer to meet the test of having made reasonable efforts to hire a Canadian, as required by the regulations. In Charger Logistics Ltd. v. Canada (Min - ister of Employment and Social Develop- ment), the employer, a Canadian logistics and transportation company operating a fleet of 200 trucks moving freight across Canada, the United States and Mexico, advertised for the position of Supervisor – Truck Drivers at the Service Canada Job Bank, Indeed and Workopolis websites. Sixty candidates applied, but only 10 were interviewed as having the requisite work experience. Of the 10 candidates, only four spoke Spanish — a job requirement — and none were suitable for the position. e company applied for an LMIA to hire a temporary foreign worker. e offi - cer reviewing the application contacted the employer and expressed concerns regard- ing the wage to be paid, arguing that it was not above the median salary for the prov- ince, and also indicated that the search for an individual with the qualifications sought by the employer, which included fluency in Spanish and a degree in Business Admin - istration, would require a higher wage to attract a qualified candidate. Further, the officer indicated to the employer that the ad- vertisement on the Job Bank was no longer available at the time of reviewing the appli- cation, and that the one in Indeed could not be found any longer. e employer provided an explanation concerning the functioning of the Indeed website based on consultation with its account manager. Notwithstanding the employer's attempts to clarify its efforts to advertise the position, the officer refused the application. e Federal Court characterized the is - sues that had to be decided as whether the officer fettered his discretion by treat- ing the advertising guidelines as manda- tory, and whether the officer's refusal was unreasonable with respect to the prevail- ing wage, given the evidence presented by the employer. As held in Frankie's Burgers Lougheed Inc v. Canada (Minister of Em- ployment and Social Development), the applicable standard of review was that of reasonableness. erefore, the court had to consider whether the LMIA refusal was reasonable in the circumstances. e employer argued that s. 203(1)(b) of the Immigration and Refugee Protection Regulations conferred discretion on the of - ficer to determine whether the employment of the foreign national is likely to have a pos- itive effect on the Canadian labour market. at regulation specifically sets out seven factors that can be taken into consideration in assessing an offer of employment to a for- eign worker, and none mandates minimum advertising. e employer noted the court's previous ruling that reading a mandatory requirement where none existed was tan - tamount to fettering discretion and submit- ted that the officer should have taken into consideration the totality of the evidence to determine whether Canadian citizens or permanent residents would be hired or trained for the position, as required by one of the factors as set out in the regulations. Since the officer only assessed whether the minimum advertising guidelines were met, he did not consider all the steps taken by the employer to fill the position. e em - ployer also contended that it had provided evidence that the Indeed advertisement had been running continuously. e respondent officer took the position that the employer stopped advertising the position in various websites and that the minimum advertising provisions required advertising efforts be continuous until a de - cision in an application is reached. e court quashed the LMIA refusal and held that the officer failed to provide an intelligible and transparent rationale as to why the employer's advertising efforts were insufficient. e court held that the officer's approach to the analysis of the employer's efforts was consistent with the decision in Frankie's Burgers, where it was held that so long as the guidelines are not binding on officers, and are applied in a manner that permit departures where warranted, it is not un - reasonable for officers to apply and follow them in the majority or even the substantial majority of cases. However, while the offi- cer demonstrated some flexibility in his in- terpretation of the guidelines, his decision ADVERTISING guidelines published by Service Canada for Labour Market Impact Assessment applications have become a contentious issue between employers seeking to hire foreign workers and Temporary Foreign Worker Program officers adhering to a strict interpretation of those guidelines. It all adds to the confusion that still exists for some employers in the wake of changes to the system under which Canadian employers can recruit temporary foreign workers. Immigration lawyer Sergio Karas discusses a recent case highlighting inconsistencies that can happen when authorities have different interpretations of the efforts employers make to hire Canadians before looking overseas for workers. BACKGROUND 4 Canadian HR Reporter, a Thomson Reuters business 2016 CASE IN POINT: IMMIGRATION The officer took the position that the employer stopped advertising on various websites and the minimum provisions required efforts to be continuous.

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