ply submit a new application, and refusals
do not have a substantial adverse impact
on employers that would carry permanent
consequences. Based on this principle, the
court held that, while the duty owed to the
employers may be at the low end of the
spectrum, this is not to say that the duty is
nonexistent. It is clear that there is a duty to
disclose extrinsic evidence if it may impact
the outcome of a decision. As noted in Yang
v. Canada (Citizenship and Immigration),
"the question is whether meaningful facts
essential or potentially crucial to the deci
-
sion had been used to support a decision
without providing an opportunity to the af-
fected party to respond to or comment upon
these facts."
e court found that the officer's reliance
upon websites which are generally accessi
-
ble to the public to obtain information about
labour market conditions was not unfair.
is was supported by several Federal Court
decisions. However, in the circumstances of
this case, it was unfair for the officer to rely
upon the information obtained in conversa
-
tion with the executive director of the On-
tario Sheet Metal Contractors Association,
and failing to disclose it to DSM before she
issued a negative LMIA opinion. e infor-
mation the officer gleaned from that con-
versation directly challenged the employer's
view as to the existence of a labour shortage
for experienced copper sheet metal workers.
By denying the employer an opportunity to
comment, offer other evidence or contradict
that information was unfair. at was suffi
-
cient to quash the officer's decision and to
return the matter to a different TFWP offi-
cer for reassessment of the application.
For more information see:
• Kozul v. Canada (Minister of Employment
and Social Development), 2016 CarswellNat
6255 (F.C.).
• Frankie's Burgers Lougheed Inc. v. Canada
(Minister of Employment and Social Devel
-
opment), 2015 CarswellNat 107 (F.C.).
• Yang v. Canada (Citizenship and Immigra-
tion), 2013 CarswellNat 52 (F.C.).
Canadian HR Reporter, a Thomson Reuters business 2017
March
29,
2017
|
Canadian
Employment
Law
Today
ABOUT THE AUTHOR
SERGIO 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
published by Thomson Reuters Canada. He can be
reached at (416) 506-1800 or karas@karas.ca.
CREDIT: KONDOR83
