Business Expertise Consultants and Fettering Discretion

Meurrens LawImmigration Trends

In the increasingly growing area of Labour Market Impact Assessment judicial review the question of whether officers are fettering their discretion by overly relying on operational guidelines is arising. To me a more interesting question is whether officers being told that they cannot make decisions without first consulting Business Expertise Consultants is more interesting.  Consider the situation below, as obtained through an Access to Information Act request.


It is clear that in this case the officer wanted to approve the Transition Plan exemption request. However, the Business Expertise Consultant recommended that the officer refrain from doing so.  In the fettering of discretion scenario, the following questions need to be asked:

  1. If a program officer went against the recommendation of a Team Leader and a Business Expertise Consultant, what would be the consequences?
  2. If program officers are administrative tribunals who are purportedly experts in the administration of their home statute, then why do they need to defer to Business Expertise Consultants and Team Leaders?
  3. How often do program officers ignore the recommendations of Team Leaders and Business Expertise Consultants?
  4. What other areas in an LMIA application do program officers have to rely on Team Leaders and Business Expertise Consultants for?