Canadian Employment Law Today

April 26, 2017

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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4 Canadian HR Reporter, a Thomson Reuters business 2017 CASE IN POINT: IMMIGRATION Employer job requirements deemed excessive in foreign worker case Employer claimed there were no qualified Canadian candidates, but officer found requirements were too high and excluded existing Canadian workers BY SERGIO KARAS T he question of whether a temporary foreign worker program (TFWP) officer may determine if employer job requirements are excessive when requesting a Labour Market Impact Assessment (LMIA) has been the subject of much discussion amongst members of the Immigration Bar and the employers they represent. In Fredy's Welding Inc. v. Canada (Minis - ter of Employment and Social Development), the Federal Court of Canada held that a TFWP officer can research an occupation in order to interpret the requirements of a spe - cific position in the National Occupational Classification (NOC). e employer applied for a LMIA in or- der to hire a temporary foreign worker for the position of welder, a skilled trade de- scribed in the NOC as "welders and related machine operators." e employer stated in the application that it was looking for a welder with experience in gas tungsten arc welding, along with one to two years of experience in maintaining and repairing the equipment used for welding, includ - ing diesel generators. e employer stated that despite extensive recruitment efforts, it had been unable to find a Canadian or permanent resident for the position. e TFWP officer spoke to the employer and its representatives on several occasions, re - quested further information — which was provided — and contacted third parties to make inquiries, but ultimately refused the application. e refusal was based on the officer's finding that the requirement of mechani - cal experience was not consistent nor es- sential for the position of welder. e officer referenced several third-party sources of information, noting that there was high un- employment in Manitoba and she had con- tacted the Winnipeg Welders' Union, which confirmed there was no labour shortage in the province. She considered the wages of- fered unacceptable based on the excessive position requirements set by the employer. e officer, in researching the occupation, contacted the Canadian Welding Associa- tion and the president of a company that repairs, maintains, and services diesel gen- erators. She advised the employer that the additional skills of mechanical experience seemed excessive. e employer sought ju- dicial review. e Federal Court identified two issues to be decided. First, whether there was a breach of procedural fairness and, second, whether the decision was reasonable. e court held that the duty of procedur - al fairness is an issue of law reviewable on a standard of correctness. On the other hand, the standard of review that applies to an of- ficer's LMIA decision is that of reasonable- ness. Reasonableness is concerned with the existence of justification, transparency, and intelligibility within the decision-making process but also with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. e Federal Court has previously held — in Gulati v. Canada (Minister of Citizenship and Immigration) and Shetty v. Canada (Minister of Citizen - ship and Immigration) — that deference should be shown to an officer's interpreta- tion of an NOC description. With regards to the issue of breach of procedural fairness, the employer argued that the officer decided, in her opinion and based on extrinsic evidence, that to seek a welder with mechanical experience was an excessive requirement, and that she should have afforded the employer the opportunity to participate in the discussions she held with third parties. e respondent countered that the offi - cer advised the employer and its represen- tatives of her consultations and provided them with an opportunity to respond, but there was no authority supporting the em- ployer position that it ought to have been afforded a participatory role in the consul- tations. e court held that a breach of proce- dural fairness did not derive from the offi- cer's decision to consult with third parties. e court affirmed previous decisions that, in assessing an LMIA, the degree of proce- dural fairness owed to an applicant is rela- tively low. However, the court also noted that while the content of the duty may be low, it is by no means nonexistent, as held in Kozul. e court distinguished Kozul, where the information obtained by the offi - cer directly challenged the applicant's view as to the existence of a labour shortage, and the officer denied to the applicant an opportunity to comment or offer evidence to contradict the undisclosed information. However, in Fredy's Welding, the officer made extensive notes documenting the high unemployment in Manitoba for the position of welder, she spoke with the Win - nipeg Welders' Union, and gathered infor- mation from other sources, all of which was explained to the employer during telephone calls. While the officer did not disclose the source of her information, she indicated the substance of her concerns to the employer, unlike the situation in Kozul. Further, the officer also consulted with the Canadian Welding Association with regards to the specific requirement set by the employer that the position required the mainte - nance of the diesel generator, and she was told that the requirement was not part of a ALL CANADIAN employers looking to fill positions must first look for Canadian job candidates before looking abroad for foreign workers — and be able to prove there are no Canadians who qualify. To help with this determination, occupations have specific requirements outlined in National Occupational Classifications (NOC). However, this means if an employer wants a worker who can do more than what's specified in the NOC for an occupation, it may not be able to hire temporary foreign workers if the extra requirements exclude Canadian workers. BACKGROUND The company wanted a welder with mechanical experience maintaining and repairing the equipment used for welding.

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