As I have previously written in this blog, there is an increasing number of judicial review applications being filed against Labour Market Impact Assessment (“LMIA”) refusals. There is also accordingly a growing jurisprudence on what constitutes the “fettering of discretion” in a LMIA assessment. Those who have experience submitting LMIA applications will know that this is not surprising.
Paturel International Company v. Canada (Employment and Social Development), 2016 FC 541 (“Paturel“)
In Paturel, an officer with the Department of Employment and Social Development (“ESDC“) refused an LMIA application simply because the employer’s job offer did not have a wage that met or exceeded the median wage on ESDC’s Working in Canada website. The Federal Court stated that:
While the officer has broad discretion to rely on the data that he considered to be most representative of the prevailing wage in the region, I find that the officer’s sole reliance on EI data amounted to a fettering of his discretion.
Justice O’Reilly went on to note that:
- Canadian immigration legislation does not stipulate that a failure to meet the prevailing wage, alone, would be sufficient to defeat an employer’s application; and
- Because the employer had provided evidence that the Working in Canada website was inaccurate, it was unreasonable for the officer to nonetheless rely on it and to ignore the additional information.
Seven Valleys Transportation Inc. v. Canada (Employment and Social Development), 2017 FC 195 (“Seven Valleys“)
In Seven Valleys, an ESDC officer refused an LMIA application solely because the employer advertised with a job requirement that an internal ESDC Wiki deemed excessive, and the officer chose to ignore the employer’s reasons as to why the requirement was not in fact excessive.
While the Federal Court accepted that ESDC can have internal policies, it determined that the officer ignoring the rationale provided regarding challenging routes, public safety, and the high value of the trucks, and instead relying solely on the internal Wiki as being binding, constituted a fettering of discretion.