On May 19, 2017 the Federal Court of Canada issued a scathing criticism of how the Department of Employment and Social Development Canada is breaching procedural fairness in how it bans companies from the Temporary Foreign Worker Program.
In Ayr Motors Express Inc. v. Canada (Employment Workforce Development and Labour), Justice Le Blanc noted that the Department had not respected a trucking company’s “basic right to be heard” before it banned them for two years from hiring foreign workers.
Citing the Federal Court decision in Tiedeman v Canada (Human Rights Commission), Justice Le Blanc further found that “[t]o solicit the representations of a party and, subsequently, to fail to consider them, renders hollow the hallowed principle of the right to be heard”.
The breach of procedural fairness arose during an inspection involving whether Ayr Motors Express Inc. had failed to comply with the Temporary Foreign Worker Program. Canada’s Immigration and Refugee Protection Regulations require that the Minister of Employment, Workforce Development and Labour be the individual who actually bans a company from hiring foreign workers under the Temporary Foreign Worker Program. However, because that individual is as a federal Cabinet Minister understandably very busy, she instead based her decision on a six page memo that her Department provided her. This memo contained none of Ayr Motors Express Inc.’s representations, and instead simply contained the Department’s summary conclusions.
Justice Le Blanc found that this was unacceptable, and it will be interesting to see how the Department responds.