contained a reviewable error because it did
not address the evidence presented by the
employer in a manner that was transpar-
ent, intelligible and reasonable. Specifically,
the officer neglected to consider the further
clarification of the advertising process pro-
vided by the employer, which was raised
during the telephone discussions between
the officer and the employer and later also in
writing. e employer presented evidence
that at least one of the advertisements con
-
tinued to be available and indicated that to
the officer, and it was not for the court to
decide its weight. e reviewable error was
the absence of any analysis of that evidence
to support the conclusion that the efforts
made by the employer were not sufficient.
Having found that the officer's decision
should be quashed on the basis of the adver
-
tising issue, the court declined to consider
the portion of the LMIA refusal dealing with
the prevailing wage discrepancy. e matter
was remitted back to the TFWP for a deci
-
sion by a different officer.
e advertising guidelines and the inter-
pretation of reasonable efforts to hire Ca-
nadians to be made by an employer seeking
to employ a temporary foreign worker have
been fraught with inconsistencies in in-
terpretation by officers across Canada and
a wide variety of opinions, even between
officers in the same geographic location.
e decision in this case should give some
comfort to employers and strengthen their
position as to what constitute reasonable ef
-
forts to hire Canadians. However, it would
be preferable for employers to insist that
the guidelines be revised, made clear, rea-
sonable, and transparent to avoid further
litigation.
For more information see:
• Charger Logistics Ltd. v. Canada (Minister
of Employment and Social Development),
2016 CarswellNat 593 (F.C.).
• Frankie's Burgers Lougheed Inc. v. Canada
(Minister of Employment and Social Devel
-
opment), 2015 CarswellNat 107 (F.C.).
• Canadian Reformed Church of Cloverdale
B.C. v. Canada (Minister of Employment
and Social Development), 2015 CarswellNat
4453 (F.C.).
.
Canadian HR Reporter, a Thomson Reuters business 2016
September
28,
2016
|
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 Co-Chair of the ABA
Canada Committee, Section of International Law, Past
Chair of the Ontario Bar Association Citizenship and
Immigration Section, Past Chair of the International Bar
Association Immigration and Nationality Committee,
and Editor of the Global Business Immigration
Handbook. He can be reached at (416)
506-1800 or karas@karas.ca.
CREDIT:
MAXX-STUDIO/SHUTTERSTOCK
