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 … Read More
Priority Processing in LMIA Applications
Labour Market Impact Assessment (“LMIA“) applications typically take 1-4 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 … Read More
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.
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 … Read More
Service Canada “Refusal to Process” in Certain Economic Regions
On June 23, 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: Refusing Low-Skilled Applications in Areas of High Unemployment in Some Occupations ESDC will refuse to process certain LMIA applications in the Accommodation, Food Services and Retail Trade sectors. Specifically, ESDC will not process LMIA applications for employers if they meet all of the following criteria: the employer is applying for an LMIA in a Statistics Canada economic region with an annual unemployment rate over 6%; the employer is seeking an LMIA in a specific occupation identified under North American Industry Classification System as Accommodations & Food Service or Retail Sales; and the employer is seeking an LMIA in an occupation in one of the following occupations: Food Counter Attendants, Kitchen Helpers and Related Occupations ; Light Duty Cleaners ; Cashiers; Grocery Clerks and Store Shelf Stockers; Construction Trades Helpers and Labourers; Landscaping and Grounds Maintenance Labourers; Other Attendants in Accommodation and Travel; Janitors, Caretakers and Building Superintendents; Specialized Cleaners; and Security Guards and Related Occupations. In today’s post, I wish to … Read More
Proposed Changes to Temporary Foreign Worker Program Compliance
On September 24, 2014, the Ministry of Economic and Social Development Canada (“ESDC“) posted on its website a discussion paper titled “Regulatory proposals to enhance the Temporary Foreign Worker Program and International Mobility Program compliance framework.” ESDC appears to recognize that the existing legal authority to ban a non-compliant employer for two years and revoke associated Labour Market Impact Assessments (“LMIA“) may be too severe in some circumstances and not severe enough in other cases. As such, the Government of Canada is proposing to introduce some compliance activities that are preventative and educational in nature, and others where the penalty for non-compliance is more severe. Specifically, ESDC is proposing to expand the range of bans from two years to include one, five, and ten year bans. As will be seen below, however, there appears to be alot more “stick” than “carrot” in ESDC’s approach.
Moratorium on Labour Market Opinions for the Food Services Sector
On April 24, 2014, Jason Kenney, the Minister of Employment and Social Development, abruptly announced a moratorium on the Food Services Sector’s ability to participate in the Labour Market Opinion (“LMO”) program. Effective immediately, Service Canada will refuse to process LMO applications from employers in the Food Services Sector. As well, all current LMOs for employers the Food Services Sector are suspended. The Businesses that are Affected The businesses that are affected are employers that are classified in the 2002 North American Industrial Classification System as Food Services and Drinking Places. This industry comprises establishments that are primarily engaged in preparing meals, snacks, and beverages for immediate consumption on and off the premises. It does not include food services activities that occur within establishments such as hotels, civic and social associations, amusement and recreation parks, and theatres. However, leased food-service locations in facilities such as hotels, shopping malls, airports, and department stores are included. Examples of businesses which are included include: Full-Service Restaurants Limited-Service Eating Places Mobile Food Services Food Services Contractors (such as establishments that provide food services to airlines, and operations that run food concessions at sports and similar venues) Caterers Drinking Places Examples of businesses which are not … Read More
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 … Read More
LMO Q&A: Discrimination to obtain a Labour Market Opinion OPS/BE-003
When reviewing internal Service Canada correspondence, I came across this interesting exchange between a Service Canada officer and a Business Expertise Consultant (“BEC”). The issue involves a Labour Market Opinion application where a daycare employer told a Service Canada officer that she did not hire a qualified Canadian candidate because he was a male. The BEC said that a Labour Market Opinion could not be issued because such gender discrimination was contrary to the BC Human Rights Code Please note that what I have reproduced below should not be viewed as legal advice. I obtained a copy of this internal Service Canada question and answer through an Access to Information Act request (the “ATI”). The reproduction of question and answer has not occurred with the affiliation of the Government of Canada, nor with the endorsement of the Government of Canada. (I have decided not to reproduce the names of the Service Canada officers involved.) Please e-mail me if you want a copy of the original question and answer contained in the ATI. BACKGROUND: Daycare facility with 2 female employees and 10 children. When asked results of recruitement, ER stated she interviewed 6 candidates. Most wanted part time positions, one did not pass interview, one came … Read More
Service Canada Significantly Changes Labour Market Opinion Program
On July 31, 2013, the Ministry of Employment and Social Development Canada (“Service Canada“) introduced changes to the Labour Market Opinion (“LMO“) process which took affect immediately. Today’s changes, as well as previous, recent ones, greatly increase the burden for companies applying for LMOs. Today’s changes were comprehensive. We have provided a broad overview of the changes below, however, we encourage you to contact us, or check the website below, for further details. Today’s Changes LMO Application Fees Effective July 31, 2013, employers applying for LMOs must pay a processing fee of $275.00 for each position requested. The total payment must reflect the number of Temporary Foreign Workers (“TFW“) positions requested on the LMO application (e.g. $275 x number of positions = total payment). For example, a company requesting a bulk LMO for 25 positions will be required to pay a processing fee of $6,875.00. Employers who wish to increase the number of positions requested on a LMO application must submit a new LMO application for these positions, with the required documents and fees. There will be no refund in the event of a negative LMO or if the application is withdrawn or cancelled. Reconsideration requests will also require the … Read More