Canadian Employment Law Today

4 Canadian HR Reporter, a Thomson Reuters business 2017 CASE IN POINT: IMMIGRATION There are many restrictions and rules employers must follow when they want to apply to hire temporary foreign workers. However, employers are entitled to a certain level of fairness when their applications are assessed. Recently, an application was sent back for reassessment when it was determined it was unfairly rejected based on information the employer didn't know about the labour market and wasn't given the opportunity to respond to. BACKGROUND Employer applications for TFWs deserve fair assessment: Court Employer unaware of information that officer used to deny foreign worker application and wasn't given chance to address it BY SERGIO KARAS T he Federal Court of Canada re- cently held that a Service Canada temporary foreign worker program (TFWP) officer breached her duty of procedural fairness to an employer appli - cant by relying on information concerning the availability of experienced copper sheet metal workers in a specific geographical area, and by failing to afford the employer the opportunity to dispute that information. In Kozul v. Canada (Minister of Employ - ment and Social Development), the em- ployer, DSM Aluminum Contracting, won a significant contract to install copper soffits and fascia for new homes being constructed in Kitchener, Hamilton, and Oakville, Ont. DSM needed to hire a copper sheet metal worker with at least three years of experi - ence in fabricating and installing metal sheets. DSM's owner, Drago Kozul, adver- tised the position for two months in the Toronto Star newspaper and two online job sites. He received 14 applications for the po- sition but none of the candidates possessed the required qualifications and experience. Kozul and DSM contacted the Carpenters Allied Union, but were informed that ex - perienced copper fabricators and installers were not available for employment. Having exhausted these possible recruitment ven- ues, DSM applied to the TFWP for a labour market impact assessment (LMIA) in order to hire a foreign worker for the position. As part of the application, DSM noted that the foreign worker could fill the immediate la - bour shortage as well as teach and develop the skills or other Canadian citizens and permanent residents to learn fabrication and installation of copper sheet metals. Shortly after the application was filed, a TFWP officer contacted Kozul and request - ed a copy of the collective agreement and some financial information. e officer jus- tified the request on the basis that the wages and working conditions to be paid to the foreign worker must be the same as those paid to union members. However, the em- ployer advised the officer that the collective agreement did not cover copper sheet metal workers, and it covered only the installa- tion of vinyl aluminum soffits and fascia. In addition, the employer provided to the of- ficer a letter from the union confirming the lack of experienced copper fabricators and installers, and further confirming that the union did not oppose the hiring of a foreign worker for the position. Notwithstanding the recruitment efforts made by DSM, the officer refused the LMIA application on the basis that the company had not demonstrated sufficient efforts to hire Canadians and that the employment of a foreign national was not likely to fill a labour shortage. e officer based the nega - tive decision on several considerations, in- cluding the fact that the foreign worker was offered a higher wage than was advertised for the position and therefore the employer had not tested the labour market with wag - es that were consistent with those generally accepted by Canadians. Second, the officer decided that even though the employer pro- vided a letter from its union confirming a shortage of workers, various other sources indicated that there was no labour shortage for this occupation. e officer's notes revealed that, in ad - dition to the information and documenta- tion provided by the employer, she con- sulted various other sources of information regarding the labour market for copper sheet metal workers. Amongst the sources consulted, the officer reviewed and relied on the Ontario government's "Ontario Job Futures" website and the Government of Canada's Job Bank website. She also ob - tained and reviewed construction forecasts for the relevant region from www.construc- tionforecasts.ca. More important, the notes showed that she had spoken by telephone with the executive director of the Ontario Contractors Sheet Metal Association, and that he indicated there was no labour short- age for the position and, in fact, there was a downturn in the market. In addition, the executive director made comments con- cerning the wage levels and the possibility of some workers not being unionized in a workplace where most workers were part of the union. Upon judicial review, the Federal Court held that the primary issue in the case was whether DSM was denied procedural fair - ness by the officer's failure to afford it an op- portunity to address the extrinsic evidence which she relied upon in her refusal to issue a positive LMIA. e court found that DSM was in fact denied procedural fairness in the circumstances of the case. First, the court canvassed the case law concerning the standard of review for deni - al of procedural fairness and held that such breach is reviewed on the correctness stan- dard. is requires the court to determine whether in rendering the negative LMIA opinion the officer satisfied the level of fair- ness required by the circumstances of the matter. erefore, the determination does not hinge so much on whether the decision is correct but rather on whether the process followed in making the decision was fair. e court affirmed a line of cases holding that the duty of procedural fairness owed in the context of LMIA applications is relative - ly low, as held in Frankie's Burgers Lougheed Inc v Canada (Employment and Social De- velopment). In that case, the court held that the requirements of procedural fairness will vary according to the specific context of each case, and in the context of applications for LMIAs, a consideration of the relevant factors that should be assessed suggests that they are relatively low because the structure of the assessment process is not judicial in nature, unsuccessful applicants can sim -

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