Labour Market Impact Assessments- Prevailing Wage

In order to obtain a positive Labour Market Impact Assessments, an employer must commit to paying a prospective foreign worker at least the prevailing wage for an occupation in a geographic area.  The prevailing wage is set by Employment and Skills Development Canada (“ESDC”)/Service Canada.  It is a very strict requirement, and Service Canada officers currently have no discretion to vary it.

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The Federal Court has certified a question regarding whether immigration officers can consider a position’s prevailing wage rate when determining whether an applicant meets the requirements of the Canadian Experience Class (“CEC“).  Although the Court in Qin v. Canada (Citizenship and Immigration), 2013 FC 147 stated that it can, the issue is now on its way to the Federal Court of Appeal.

In a previous blog post, I noted that one of the advantages of the CEC over the British Columbia Provincial Nomination Program – Skilled Workers (“BC PNP – Skilled Workers“) was that the CEC did not analyze how much applicants made during their work experience, while the BC PNP – Skilled Workers required that they be paid market rates for their ongoing employment.  The Qin decision may accordingly change the attractiveness of the BC PNP – Skilled Workers compared to the CEC for some applicants.

Neither the Immigration and Refugee Protection Regulations (the “Regulations“) nor the Citizenship and Immigration Canada Processing Manuals state that officers should consider salary when assessing whether an applicant has the requisite experience in a skilled position for the CEC.  Section 87.1 of the Regulations simply require an officer to evaluate whether a candidate has experience in an eligible occupation.  On this point, Madam Justice Gleason wrote that:

In evaluating whether or not an applicant’s experience falls within a permissible [occupation], an officer is required to understand the nature of the work performed and the degree of complexity of the tasks undertaken, to determine whether or not they fall within the duties listed in the relevant [occupation]. The requisite analysis necessitates much more than a rote comparison of the duties listed in the [occupation] with those described in a letter of reference or job description.

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