Canadian Employment Law Today

have provided significant justification for additional job requirements but had not done so. e court referred to Frankie's Burgers, where it was held that there was nothing wrong with an officer following departmental guidelines or NOC classifi- cations so long as they are not considered binding and are applied in a manner that permits departures where warranted. In this case, the officer specifically recog- nized that she had the ability to step out- side the guidelines in the appropriate case. e employer relied on Seven Valleys, where the negative LMIA decision was overturned because the officer did not take into account specific demands of the position. However, the court distin- guished Seven Valleys because in Sky Blue Transport the officer did consider the em- ployer rationale but found it lacked sub- stance, mostly because it was focused on insurance costs for which minimal detail had been provided. e court held that the decision was reasonable because the employer failed to provide objective evidence to support the proposed job requirements. A decision maker is not required to mention every piece of evidence before her and the em- ployer never established that a driver with additional experience was required. e court also rejected the argument that the officer had breached procedural fairness. e court noted that the em- ployer was made aware of the officer's con- cerns and had an opportunity to address them and said departmental guidelines, whether published or not, do not consti- tute extrinsic evidence. Reliance on such guidelines or information is not unfair if its substance has been conveyed to an appli- cant, who has been provided with an op- portunity to respond. e employer also argued it had suc- cessfully applied previously for an LMIA with a similar experience requirement but the court rejected that argument because none of the facts or evidence related to that application were before the court or offi- cer. e court upheld the officer's decision. Experience requirements in LMIA ap- plications should be reasonable and relate closely to the NOC job classification and to industry standards. While it is true that employers may insist on additional experi- ence requirements, they should never be so unreasonable so as to preclude Canadi- ans from qualifying for the position. For more information see: •Seven Valleys Transportation Inc. v. Canada (Minister of Employment and Social Devel- opment), 2017 CarswellNat 529 (F.C.). •Frankie's Burgers Lougheed Inc. v. Canada (Employment and Social Development), 2015 CarswellNat 107 (F.C.). •Kozul v. Canada (Employment and Social Development), 2016 CarswellNat 10697 (F.C.). •Paturel International Co. v. Canada (Minis- ter of Employment and Social Development), 2016 CarswellNat 1669 (F.C.). •Sky Blue Transport Ltd. v. Canada (Minister of Employment and Social Development), 2017 CarswellNat 723 (F.C.). Canadian HR Reporter, a Thomson Reuters business 2017 August 30, 2017 | Canadian Employment Law Today CREDIT: ONE PHOTO/SHUTTERSTOCK ABOUT THE AUTHOR Sergio R. Karas Sergio R. Karas is the principal of Karas Immigration Law Professional Corporation in Toronto and 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. He can be reached at (416) 506-1800 or karas@karas.ca.

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