Procedural Fairness in LMIA Applications

Procedural fairness in Labour Market Impact Assessment (“LMIA“) applications is relatively low.  In Frankie’s Burgers, the first reported Federal Court decision on the matter, the Court stated that (citations removed):

The requirements of procedural fairness will vary according to the specific context of each case. In the context of applications by employers for [Labour Market Impact Assessments], a consideration of the relevant factors that should be assessed in determining those requirements suggests that those requirements are relatively low. This is because, (i) the structure of the [LMIA] assessment process is far from judicial in nature, (ii) unsuccessful applicants can simply submit another application, and (iii) refusals of [LMIA] requests do not have a substantial adverse impact on employers, in the sense of carrying “grave,” “permanent,” or “profound” consequences.

However, as noted in the Kuzol decision, while the duty of procedural fairness in a LMIA application may be at the low end of the spectrum, it is not non-existent.

Extrinsic Evidence

If an officer with the Department of Economic and Social Development (“ESDC“) relies on extrinsic evidence in reaching a decision, then there is a duty to disclose that evidence to the employer prior to the decision being made.

Extrinsic evidence does not include information that is publicly available on websites that are generally accessible to the public.

It does, however, include information derived from third parties that is not publicly available.  For example, in the LMIA context, if an ESDC officer calls a third party to confirm whether there is a labour shortage in an area, and the information that the third party contradicts what the employer submitted to ESDC, then the officer must provide the employer with an opportunity to respond to the information that the third party provided.


Priority Processing in LMIA Applications

Labour Market Impact Assessment (“LMIA”) applications typically take 1-2 months to process. However, the Department of Employment and Social Development Canada (“ESDC”) processes LMIAs for in-demand occupations (skilled trades), highly paid occupations (top 10%) or short-duration (120 days or less) entries within a 10 business day service standard.

High-Demand

To be considered a High-Demand LMIA, the position must be for a skilled trade on the list of eligible occupations below, and the wage being offered for the position must be at, or above, the provincial / territorial median wage where the job is located.

Tables about unemployment, Median wages, 10-day speed of service

NOC
2006
NOC
2011
Occupation Title
7212 7202 Contractors and supervisors, electrical trades and telecommunications occupations
7215 7204 Contractors and supervisors, carpentry trades
7219 7205 Contractors and supervisors, other construction trades, installers, repairers and servicers
7271 7271 Carpenters
7216 7301 Contractors and supervisors, mechanic trades
7217 7302 Contractors and supervisors, heavy equipment operator crews
8211 8211 Supervisors, logging and forestry
8221 8221 Supervisors, mining and quarrying
8222 8222 Contractors and supervisors, oil and gas drilling services
8241 8241 Logging machinery operators
8252 / 8253 8252 Agricultural service contractors, farm supervisors and specialized livestock workers
9211 9211 Supervisors, mineral and metal processing
9212 9212 Supervisors, petroleum, gas and chemical processing and utilities
9214 9214 Supervisors, plastic and rubber products manufacturing
9231 9231 Central control and process operators, mineral and metal processing
7351 / 7352 9241 Power engineers and power systems operators
9424 9243 Water and waste treatment plant operators
7231 7231 Machinists and machining and tooling inspectors
7261 7233 Sheet metal workers
7263 7235 Structural metal and plate work fabricators and fitters
7264 7236 Ironworkers
7265 7237 Welders and related machine operators
7241 7241 Electricians (except industrial and power system)
7242 7242 Industrial electricians
7243 7243 Power system electricians
7244 7244 Electrical power line and cable workers
7245 7245 Telecommunications line and cable workers
7246 7246 Telecommunications installation and repair workers
7251 7251 Plumbers
7252 7252 Steamfitters, pipefitters and sprinkler system installers
7253 7253 Gas fitters
7311 / 7317 7311 Construction millwrights and industrial mechanics
7312 7312 Heavy-duty equipment mechanics
7313 7313 Refrigeration and air conditioning mechanics
7314 7314 Railway carmen/women
7315 7315 Aircraft mechanics and aircraft inspectors
7318 7318 Elevator constructors and mechanics
7371 7371 Crane operators
7372 7372 Drillers and blasters – surface, mining, quarrying and construction
7373 7373 Water well drillers
8231 8231 Underground production and development miners
8232 8232 Oil and gas well drillers, servicers, testers and related workers
9232 9232 Petroleum, gas and chemical process operators

Highest-Paid

To be considered a Highest-Paid LMIA, the wage being offered for the position is at or above the top 10% of wages earned by Canadians or permanent residents in the province/territory, where the job is located.  This amount is:

Tables about unemployment, Median wages, 10-day speed of service

Province/Territory Wages prior to
April 30, 2016
2014 Wage ($/hour)
Wages effective
April 30, 2016
2015 Wage ($/hour)
Alberta $47.60 $48.74
British Columbia $40.38 $41.63
Manitoba $38.46 $40.00
New Brunswick $36.06 $37.00
Newfoundland and Labrador $42.53 $42.00
Northwest Territories $55.00 $55.00
Nova Scotia $38.00 $38.46
Nunavut $53.85 $54.00
Ontario $43.75 $45.19
Prince Edward Island $35.00 $35.90
Quebec $38.71 $40.00
Saskatchewan $43.17 $44.23
Yukon $43.59 $45.67

Short Duration

To constitute a Short Duration LMIA, the length of employment must be 120 calendar days or less. It is applicable for any occupation. The wage being offered for the requested occupation must be at or above the provincial / territorial hourly median wage for the occupation.

Things to Note

There are several things that employers should know about the 10 day service standard, including that:

  • An Employer Compliance Review or Inspection takes precedence over the 10-Day Speed of Service.
  • To be eligible for the 10-Day Speed of Service a file must be complete. If additional information is required, an application will alos be removed.
  • Complex files will also be removed from the 10-Day Speed of Service.


Labour Market Impact Assessments- Prevailing Wage

In order to obtain a positive Labour Market Impact Assessments, an employer must commit to paying a prospective foreign worker at least the prevailing wage for an occupation in a geographic area.  The prevailing wage is set by Employment and Skills Development Canada (“ESDC”)/Service Canada.  It is a very strict requirement, and Service Canada officers currently have no discretion to vary it.

Continue reading “Labour Market Impact Assessments- Prevailing Wage”


Service Canada Transition Plans

On June 23, 2014, we wrote about how on June 20, 2014, Citizenship and Immigration Canada (“CIC”) and the Ministry of Economic and Social Development Canada (“ESDC”) announced significant reforms to the Temporary Foreign Worker Program (“TFWP”).  One of the changes was:

Introduction of Transition Plans for High-Wage Positions

Employers seeking to hire High-Wage TFWs will now be required to submit Transition Plans to demonstrate how they will increase efforts to hire Canadians, including through higher wages, investments in training and more active recruitment efforts from within Canada.  An employer will have to provide a Transition Plan for each position that it is seeking a LMIA for. The requirement that employers provide a Transition Plan has taken effect immediately.

Employers may be exempt from the Transition Plan requirement if they are hiring TFWs for positions which:

  • require unique skills (ESDC has stated that two examples include nuclear physicist and senior executives such as Chief Executive Officer);
  • have a limited duration of between:
    • 1 and 120 days (ESDC has stated that two examples include emergency or warranty work repair technicians / mechanics); or
    • more than 120 days to a maximum of 2 year (ESDC has stated that two examples include project-based business consultant, specialized construction engineer).

As part of the Transition Plan, employers are required to conduct the all of the following:

  • General Requirements – Employers must conduct at least 3 distinct activities that are designed to recruit, retain, and train Canadian citizens and permanent residents;
  • Underrepresented Groups requirement – Employers must conduct at least 1 distinct activity to work with an organization serving underrepresented groups (Aboriginal peoples, youth, immigrants and persons with disabilities) to identify potential candidates for recruitment or training. This activity is additional to that conducted for the minimum recruitment and advertisement requirement. If the underrepresented group is the same, the activities must be different. If the activities are for the same group, they must be substantially different.
  • Permanent Resident Requirement – Employers must conduct at least 1 distinct activity that supports a TFW’s permanent transition to Canada. This activity could include assisting with language training.

Employers will be required to report on the results of the commitments they have made in their Transition Plan if they are selected for an inspection, or choose to re-apply for a subsequent LMIA for the same occupation and work location.

In today’s post, I wish to elaborate on the above.

Continue reading “Service Canada Transition Plans”



Federal Court Affirms New ESDC Internal Part-Time Recruitment Policy

In January 2015 the Federal Court released its decision in Frankie’s Burgers Lougheed Inc. v. The Minister of Employment and Social Development Canada, 2015 FC 27 (“Frankie’s Burgers“).  Frankie’s Burgers is one of the first Federal Court decisions involving an employer seeking judicial review of a decision of the Ministry of Economic and Social Development Canada (“ESDC“) to not issue a positive Labour Market Impact Assessment (“LMIA“), which was then referred to as a Labour Market Opinion (“LMO“).

Frankie’s Burgers should be read by all representatives and employers who submit LMIAs.  In my opinion, the case shows that the Federal Court seems prepared to show much greater deference to ESDC in its administration of the Temporary Foreign Worker Program (the “TFWP“) than it does to both Citizenship and Immigration Canada and the Immigration and Refugee Board.  Lawyers who were anticipating that the Federal Court would force ESDC to change some of its (often internal and secretive) policies should also take pause.

Continue reading “Federal Court Affirms New ESDC Internal Part-Time Recruitment Policy”


Ministerial Instructions – Revoking, Suspending, and Refusing to Process Work Permits and Labour Market Opinions

On December 27, 2013, Citizenship and Immigration Canada (“CIC“) and the Ministry of Economic and Social Development (“Service Canada“) released Ministerial Instructions regarding the revocation of work permits and Labour Market Opinions (“LMOs“), now called Labour Market Impact Assessments (“LMIAs“).  The Ministerial Instructions will allow the Government of Canada to rapidly respond to economic developments by immediately reducing the intake of foreign workers, will increase program integrity, and create uncertainty for Canadian businesses.

These are the first Ministerial Instructions to be issued by Service Canada since the Government of Canada amended s. 30 of the Immigration and Refugee Protection Act (“IRPA“) in the first 2013 Budget Implementation Act.  Section 30 of IRPA now reads:

Work and study in Canada

30. (1) A foreign national may not work or study in Canada unless authorized to do so under this Act.

Authorization

(1.1) An officer may, on application, authorize a foreign national to work or study in Canada if the foreign national meets the conditions set out in the regulations.

Instructions

(1.2) Despite subsection (1.1), the officer shall refuse to authorize the foreign national to work in Canada if, in the officer’s opinion, public policy considerations that are specified in the instructions given by the Minister justify such a refusal.

Concurrence of second officer

(1.3) In applying subsection (1.2), any refusal to give authorization to work in Canada requires the concurrence of a second officer.

Purpose

(1.4) The instructions referred to in subsection (1.2) shall prescribe public policy considerations that aim to protect foreign nationals who are at risk of being subjected to humiliating or degrading treatment, including sexual exploitation.

Revocation of work permit

(1.41) An officer may revoke a work permit if, in the officer’s opinion, public policy considerations that are specified in instructions given by the Minister justify the revocation.

For greater certainty

(1.42) For greater certainty, subsection (1.41) does not affect any other lawful authority to revoke a work permit.

Revocation or suspension of an opinion

(1.43) If, in the view of the Department of Human Resources and Skills Development, public policy considerations that are specified in instructions given by the Minister of Human Resources and Skills Development justify it, that Department may

(a) revoke an opinion provided by that Department with respect to an application for a work permit;

(b) suspend the effects of the opinion; or

(c) refuse to process a request for such an opinion.

For greater certainty

(1.44) For greater certainty, subsection (1.43) does not affect any other lawful authority to revoke an opinion referred to in that subsection.

Publication

(1.5) Instructions given under this section shall be published in the Canada Gazette.

Service Canada – Ministerial Instructions Respecting Labour Market Opinions

Service Canada’s Ministerial Instructions clarify that the public policy considerations which may justify the revocation of a LMIA pursuant to s. 30(1.43)(a) of IRPA with respect to a work permit application are:

  • if new information becomes available after the LMIA is provided indicating that the employment of the foreign national under the work permit is having or will have a significant negative effect on the labour market in Canada.  It is unclear how this will work in practice, who the burden of proof is on, and what the standard of proof is;
  • that the employer or group of employers provided false, misleading or inaccurate information in the context of the request for that opinion.  It is unclear how material the misleading or inaccurate information has to be in order to justify the revocation of a LMIA; and
  • that the employer’s name has been added to the employer blacklist referred to in the proposed subsection 209.91(3) of the Immigration and Refugee Protection Regulations.   These regulations are not yet in force yet, but these Minister Instructions suggest that they soon will be.  More information about them can be found in my blogpost here.

Service Canada’s Ministerial Instructions further clarify that the public policy considerations which may justify the suspension of a LMIApursuant to s. 30(1.43)(b) of IRPA with respect to a work permit application are that:

  • new information becomes available after the time that the opinion is provided that, if known at that time, would have led to a different opinion.  It is not clear what such information would be, whether such a determination can only be made by the officer who issued the original LMIA, and how a suspension in this context would be different from a revocation;
  • there are reasonable grounds to suspect that the employer or group of employers provided false, misleading or inaccurate information in the context of the request for that opinion.  In addition to the above questions regarding misleading information in the context of revocation, it is not clear when revocation would be appropriate rather than suspension;
  • there are reasonable grounds to suspect that the employer is not complying with the conditions set out in subsection 209.3 or 209.4 of the proposed (soon to come into effect) Regulations in respect of that work permit or any other work permit and the failure to do so may not be justified under one or the other of those sections, as applicable; and

Finally, the Ministerial Instructions provide that the public policy considerations which may justify Service Canada to refuse to process a LMIAare that:

  • there is information to indicate that the employment of the foreign national under the work permit in any portion, sector, region or occupational group of the labour market in Canada may or will have a significant negative effect on that labour market; and
  • the request for an opinion relates to an application for a work permit the processing of which would be refused under the terms of instructions given by the Minister of Citizenship and Immigration under subsection 87.3(3) of the Act.

The potential implications of the above two points relating to Service Canada’s new ability to refuse to process certain LMIA applications is perhaps best understood when considering CIC’s 2013decision to abruptly announce that six occupations no longer qualified for the CEC.  It is not difficult to envision a future in which Service Canada announces that “effective immediately, Service Canada will no longer process LMIAs for cooks,” or “effective immediately, Service Canada will refuse to process all LMIAs in Sudbury.”  Indeed, on June 20, 2014, ESDC announced that it would refuse to process LMIAs in certain occupations in certain regions.  The need for employers to be made aware of this risk, especially since Service Canada may make such an announcement during the employer’s mandatory advertising period, is crucial.

The Ministerial Instructions took effect on December 31, 2013.  Several LMIAs have since been suspended, and the following is an example of a suspension letter.

CIC – Ministerial Instructions Regarding the Processing of Certain Work Permit Applications

CIC’s Ministerial Instructions provide instructions to officers with respect to the effects of a decision by Service Canada to suspend a LMIA.

Officers have been instructed to suspend the processing of LMIA-based work permit  applications where Service Canada has suspended the relevant LMIA.  CIC will inform such applicants that the processing of their application will not continue until such a time as the LMO suspension is no longer in effect.

The Ministerial Instructions took effect on December 31, 2013.  They apply to all applications received by CIC on or after December 31, 2013.  They also apply to applications that CIC has received butnot yet processed.

CIC – Ministerial Instructions Regarding the Revocation of Certain Work Permits

CIC has clarified that the public policy considerations which may justify the revocation of a work permit are that:

  • the LMO that work permit was based on has been revoked;
  • in the case of a work permit that was issued to a foreign national referred to in any of subparagraphs 200(1)(c)(i) to (ii.1) of the Regulations (which includes the Self-Support Class, the PR Applicants in Canada Class, the Humanitarian Reasons Class, the Significant Benefits Program, the Provincial / Territorial Agreements Program, and the International Agreements Program),  with respect to a specified employer, new information becomes available indicating that the employment of the foreign national under the work permit is having or will have a significantly greater negative effect than benefit with respect to the development of a strong Canadian economy, unless the revocation of that work permit would be inconsistent with any trade obligation of the Government of Canada under an international agreement.  It is unclear how this will work in practice, who the burden of proof is on, and what the standard of proof is.  It is also unclear how provincial nominees will be affected;
  • the employer or group of employers provided false, misleading or inaccurate information in the context of the application for the work permit;
  • the employer’s name has been added to the employer black-list referred to in subsection 209.91(3) of the Regulations; and
  • the work permit was issued to a foreign national on the basis of their relationship to another foreign national and the work permit of that other foreign national has since been or is currently being revoked.

Conclusion

While these Ministerial Instructions as written are significant, it remains to be seen if the “bark is worse than the bite.”  It has been nearly three years since CIC first announced the creation of the employer blacklist.  To date not a single employer has been added to the list.  I still believe that the greatest way to promote compliance is to start publicizing the names of authorized representatives who employers have implicated in promoting fraud.  While Service Canada maintains an internal list of this, publicizing it would ensure that employers avoid the individuals most guilty of this.


ESDC’s Mail Audits

One of the most perplexing aspects about the Ministry of Employment and Social Development Canada (“ESDC“) is its insistent that all Employer Compliance Reviews be done by mail.  Apparently, as confirmed in this reproduction of internal ESDC correspondence obtained through an Access to Information Act request, it is because the potential for electronic transmission of information to be intercepted by wireless devices is too great.

I’m sure most employers would be willing to take this risk (which is probably less than the risk of something getting lost in the mail) if it meant that the Employer Compliance Reviews took days instead of (often) months.

Compliance