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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welder's job duties. She also disclosed that information to the employer and advised them that the requirement seemed exces- sive, and while she did not specifically men- tion the Canadian Welding Association, she indicated to the employer that the informa- tion was confirmed by welders associations across Canada. e applicant was afforded an opportunity to respond in that context. erefore, the court found no merit in the employer's argument that it should have been privy to those discussions. e court was not persuaded that in the circumstanc - es of the case, the duty of procedural fair- ness was breached. With regards to the second issue set out by the Federal Court — whether the offi- cer's decision was reasonable — the court rejected the employer's argument that the officer mischaracterized the requirement for diesel generator maintenance. Affidavit evidence was presented by the employer in - dicating that, because the job locations were often remote, it was necessary for a welder to make adjustments and repairs to the equipment. is was apparently the subject matter of several discussions between the officer and employer representatives. e court held that even if the officer erred in understanding the context in which the me - chanical experience was required, her find- ing that the requirement to know how to repair diesel generators was excessive and the refusal was reasonable given the evi- dence on the record before her. e NOC description did not specifically require that a welder must operate, maintain, and re- pair diesel generators as part of the duties of the position. On the contrary, the officer had evidence supporting her finding that this requirement was excessive. Her obser - vation that the employer eliminated local candidates that did not have the required diesel generator maintenance and repair experience could explain why no one could qualify for the position. Further, it was rea - sonable for the officer to consider the fact that a welder who was already employed by the applicant did not have this additional skill, which was so unique. In the view of the court, the officer's interpretation of the NOC requirements was reasonable and the mechanical experience required by the em - ployer was excessive for the position. e court concluded that the decision reached by the officer was in the range of possible, acceptable outcomes that were de - fensible on the facts and the law. For more information see: • Fredy's Welding Inc. v. Canada (Minister of Employment and Social Development), 2017 CarswellNat 6 (F.C.). • Gulati v. Canada (Minister of Citizenship and Immigration), 2010 CarswellNat 4178 (F.C.). • Shetty v. Canada (Minister of Citizenship and Immigration), 2012 CarswellNat 4506 (F.C.). • Kozul v. Canada (Minister of Employment and Social Development), 2016 CarswellNat 6255 (F.C.). Canadian HR Reporter, a Thomson Reuters business 2017 April 26, 2017 | Canadian Employment Law Today ABOUT THE AUTHOR Sergio R. Karas Sergio R. Karas, the 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. His comments and opinions are personal and do not necessarily reflect the position of any organization. He can be reached at (416) 506-1800 or CREDIT: ARTWELL/SHUTTERSTOCK

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