Last updated on September 19th, 2018
Last Updated on September 19, 2018 by Steven Meurrens
The Application for a Labour Market Impact Assessment (“LMIA”) asks:
Employers should generally be counselled against stating that an offer of employment requires the ability to communicate in a language other than English or French.
Employment and Social Development Canada (“ESDC“) Program Officers have very little discretion to approve LMIA applications where employers have indicated that the job requires a language other than English or French. ESDC can only approve LMIA applications where the officers are satisfied that the employment of a foreign national will have a positive or neutral effect on the labour market in Canada. Section 203(1.01) of the Immigration and Refugee Protection Regulations (“IRPR“) states:
(1.01) … the employment of a foreign national is unlikely to have a positive or neutral effect on the labour market in Canada if the offer of employment requires the ability to communicate in a language other than English or French, unless
(a) the employer or group of employers demonstrates that the ability to communicate in the other language is a bona fide requirement for performing the duties associated with the employment;
(b) the offer of employment relates to work to be performed under an international agreement between Canada and one or more countries concerning seasonal agricultural workers; or
(c) the offer of employment relates to other work to be performed in the primary agriculture sector, within the meaning of subsection 315.2(4).
Both the LMIA application and recruitment efforts for the job must reflect the IRPR’s language restriction. Indeed, where a language other than English or French is listed as a requirement and an exemption does not apply, ESDC officers do not even have to review the rest of the LMIA application. They can automatically refuse.
The Bona Fide Requirement
The Government of Canada defines a bona fide occupational requirement as being a condition of employment that is imposed in the belief that it is necessary for the safe, efficient, and reliable performance of the job and which is objectively, reasonably necessary for such performance.
In the case of a bona fide occupational requirement for a language other than English or French, examples include translation companies hiring translators to work in a language other than English or French, or tour companies catering only to foreign tourists who need a foreign speaking tour guide.
The internal directives can be found here:
Please note that the three ESDC documents above should not be viewed as legal advice. I obtained a copy of these documents through Access to Information Act requests (the “ATIs”). The reproduction of the ATIs has not occurred with the affiliation of the Government of Canada, nor with the endorsement of the Government of Canada.
In addition, as per the ESDC Wiki, ESDC will generally not accept an employer’s claim that neither English nor French is a requirement of a position. ESDC recognizes that there may be a limited number of instances where “no language requirement” could pass the reasonable employment needs test. For example, some jobs require low levels of skill and minimal language proficiency or communication (e.g. listening, speaking, reading, and writing).
Conversely, some jobs may not pass the reasonable employment needs test if they clearly require knowledge of English or French.
When the assessing officer, in discussions with the employer, determines that the selection of ‘no language required’ is unreasonable for the position requested on the LMIA, the employer should choose a language (French or English or another language if the employer can clearly demonstrate that the use of the non-official language is a bona fide occupational requirement for performing the duties associated with the job.