Canadian Employment Law Today

August 31, 2016

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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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.

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