ure to meet the prevailing wage without ad-
dressing how all the factors, taken together,
impacted the Canadian labour market.
e court further held that while the of-
ficer could consider EI data in the calculation
of the prevailing wage, in the circumstances
it was unreasonable to rely on that data be-
cause the difference between the 2013 and
the 2014 median wages showed a large dis-
parity. is should have caused the officer to
consider whether the EI data was a reliable
indicator of the prevailing wage for that oc-
cupation. An increase of over 20 per cent
should have cast doubt on the suitability of
EI data to represent the prevailing wage, es-
pecially because there were no changes in the
circumstances of the region other than the
methodology by which the prevailing wage
was calculated. erefore, the court held that
it was improper for the officer to deny the
employer's application based on faulty data.
Moreover, the court called the prevail
-
ing wage calculation "an arbitrary standard
that had not previously been applied, and
seemed inconsistent with other available
information." e court held that the officer
did not have due regard for the overall crite
-
ria for approval of the LMIA and relied only
on the EI data. e court held that the LMIA
refusal was unreasonable, quashed the offi-
cer's decision, and remitted the application
back for another officer to reconsider.
Employers filing LMIA applications are
familiar with the lack of uniformity in deci
-
sion making and sometimes arbitrary and ca-
pricious manner in which officers interpret
regulations and guidelines. Employers must
be prepared to justify wages based on labour
market conditions for a specific position in
their region, and with reference to their own
workforce and that of their competitors.
For more information see:
• Paturel International Co. v. Canada (Min-
ister of Employment and Social Develop-
ment), 2016 CarswellNat 1669 (F.C.).
• Stemijon Investments Ltd. v. Canada (Attor-
ney General), 2011 CarswellNat 4372 (F.C.A.).
CREDIT:
ANDRII
ORLOV/SHUTTERSTOCK
Canadian HR Reporter, a Thomson Reuters business 2016
August
31,
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.
