Canadian Employment Law Today

Weighting experience in the foreign worker search Federal Court issues 2 divergent rulings on whether job experience requirements can rule out Canadian candidates BY SERGIO R. KARAS G enerally, Canadian employers are only permitted to recruit for- eign workers if they can't find Canadian candidates to fill open positions. But how important is previous experience when it favours foreign work - ers over Canadian ones? Two recent de- cisions by the Federal Court addressed whether experience should be factored into LMIAs and came to different decisions. In Seven Valleys Transportation Inc. v. Canada (Minister of Employment and Social Development), the question was whether a Temporary Foreign Worker Unit (TFWU) officer fettered — or restrained — her discretion and made an unreasonable decision by considering extrinsic evidence in refusing an LMIA application. e em - ployer applied to hire a foreign worker and required a minimum of one-to-two years of experience for a long-haul truck driver po- sition. e officer felt this requirement was excessive. e officer stated that while experience may be considered to be an asset, it was not an essential requirement for the posi- tion. e officer's notes revealed that her internal research of occupational require- ments disclosed that long-haul truck drivers typically received "on road" time along with classroom training and then a licensing exam. Once those conditions were met, the driver would be considered qualified for that occupation. While the employer had stated that insurance rates would be lower for drivers with experi- ence, the officer rejected that rationale. e employer claimed that the officer breached procedural fairness by relying on information from an internal database and on interim guidelines without dis- closing those sources. e court rejected that contention and referred to its 2015 decision Frankie's Burgers Lougheed Inc. v. Canada (Employment and Social De- velopment), where it was held that em- ployers have a legitimate expectation that they will be afforded an opportunity to re- spond to any concerns an officer may have regarding the credibility or authentic- ity of documentation that they supply in support of an LMIA application. Further, the court also referred to Kozul v. Canada (Employment and Social Development) where the Federal Court found that there is a duty to disclose extrinsic evidence if it may have an impact on an administrative decision. In Seven Valleys, however, the court held that the officer did not unfairly rely on documents from the internal data- base and disclosed the information to the employer prior to rendering a decision. e employer was made aware of the in- formation relied upon by the officer and was given an opportunity to address it. Notwithstanding the above, the court accepted the employer argument that the officer ignored relevant information presented by the employer. e officer did not take into consideration the em- ployer's evidence regarding challeng- ing routes, public safety, and the high value of the trucks given to the drivers. e court referred to its decision in Pa- turel International Company v. Canada (Employment and Social Development) where it found it is unreasonable for an officer to solely rely on one factor and one source of data while ignoring other factors and evidence presented as part of the application — doing so amounted to a restraining of discretion. In light of the officer's failure to take into account the employer's rationale for requiring a foreign worker, the court in Seven Valleys found that the officer fettered her discre- tion and quashed her negative decision. Experience requirement considered but not accepted by officer A different result ensued in Sky Blue Transport Ltd. v. Canada (Minister of Employment and Social Development). e officer refused an LMIA application based on the lack of "genuineness" of the job offer due to the excessive experience requirement. e employer requested that long-haul truck drivers have one-to- two years of experience. and said it was able to hire only one suitable Canadian candidate with those requirements. e employer explained in a telephone interview with the officer that it was a re- quirement of the insurance provider as well as part of a risk reduction strategy. In a written submission, the employer reiter- ated the existence of the written contract with the insurer regarding driver qualifi- cations, which stipulated insurance for drivers with less than one year of experi- ence was not available, and insurance for drivers with between one and three years of experience was more costly. e officer refused the LMIA application due to the employer's failure to demonstrate it had made sufficient efforts to hire Canadians, and failing to demonstrate a reasonable employment need for this position in the business. e officer found that, although experience was an asset, the one-to-two years required by the employer was not an occupational requirement in the National Occupational Classification (NOC) de- scription for long-haul truck drivers. It is important to note that the officer made specific reference in her notes to the op- erational guidelines that, if an employer makes a reasonable case that it requires experience for relevant factors related to job performance, these may be accepted — such as experience in driving danger- ous goods or challenging routes. e employer argued that the officer read the NOC classification for the oc- cupation and the guidelines too narrowly and refused to consider an element not laid out in the classification. e court disagreed, noting that the officer did not foreclose the possibility of deviating from the guidelines or the NOC classification, and she recognized the employer could TWO RECENT CASES highlight the difficulties that exist with the current Labour Market Impact Assessment (LMIA) process. The main question before the Federal Court in these cases was what kind of evidence regarding labour market conditions can be relied upon by a Temporary Foreign Worker Unit officer, and how it must be disclosed to an employer? 4 Canadian HR Reporter, a Thomson Reuters business 2017 CASE IN POINT: IMMIGRATION BACKGROUND

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