May 16, 2016

Fixing the TFW Program: The Fine Line between Discretion and Compliance

As reported in various media, The Honourable Employment Minister, MaryAnn Mihychuk, has announced that the government is seeking to review recent reforms to the Temporary Foreign Worker (TFW) program. The Employment Minister will ask a parliamentary committee for proposals to fix the TFW program. There is merit to flexibility in any program to allow for unexpected and unintended consequences and to remain nimble in particular with respect to the ever changing needs of Canada’s labour market.  Therefore, the reliance on policy as opposed to law in administering a large portion of the TFW program supports that flexibility. But in our experience, the difficulty remains in the officers’ elevation of policy to law in refusing Labour Market Impact Assessments (LMIA) applications.  Some examples of the legal issues raised in recent LMIA/work permit cases on behalf of our clients include:

• The assessment of the genuineness of the job offer is enumerated pursuant to section 200(5) of the Regulations. The Officer exceeded his or her jurisdiction, refusing the Applicant’s LMIA application for reasons which do not exist in law. There is no legislative requirement that a company be in operation for one year, nor that the company be able to support the worker for an indeterminate period. The Applicant further respectfully submits that no company is able to indeterminately sustain an individual’s salary as such a benchmark is undefined and results in a floating target.

• The LMIA was refused for insufficient recruitment.  ESDC has previously approved approximately one hundred workers for this employer over the past ten years.  Without any change to the law or a material difference in the recruitment efforts, these two new LMIA applications were refused based upon policy guidelines on ESDC’s website. The Officer’s adherence to the advertising guidelines absent an individualized assessment is incorrect in law and demonstrates a fettering of the Officer’s discretion by policy directives.

• The LMIA was refused as the Officer determined that the company has “not demonstrated sufficient efforts to hire Canadians in the occupation”.  The Officer’s only stated rationale for refusal was that the prevailing wage was unreasonable for the position, given the experience required and the location of the job. The Officer based his rationale on an improper inference (wage too low for experience and location), without any evidentiary basis, while ignoring the Applicant’s evidence. Finally, the Officer erred in law by believing that he was functus and unable to consider the Applicant’s request for reconsideration.

• The Officer refused to amend the trade for which the LMIA was granted. The request for an LMIA was to enable the Applicants to hire a Fitter-Fabricator on a Canadian work permit; the LMIA was issued for an ironworker. It is the Applicants’ submission that by bypassing the role of authorised third-party representative that the Officer has erred.

Often, officers’ decisions demonstrate an understanding that Departmental policy is binding and sufficient grounds for refusal. It is, in the end, an individualized assessment and this requires discretion, rather than strict compliance with policy. Respondents’ policy statements on recruitment, for example, are often expressed in mandatory language.  Until a proper balance is struck, it is an almost certainty the Federal Court will be called upon to weigh in on defining the scope and legal authority of this new work permit regime.

For more information on Federal Court Applications and Appeals, please click here.