October 6, 2020

Canadian Labour Market Impact Assessments (LMIA) – What is a Genuine Job Offer?

Posted by Mario Bellissimo - Bellissimo Law Group PC

The pandemic has wreaked havoc on the global economy and Canada is no exception. Protecting Canada’s labour force has perhaps never been more acute.  Obtaining LMIAs can be challenging at the best of times.  At the core of that challenge is the genuineness of a job offer.  What makes an offer genuine is not as simple as it sounds.

Sections 200 and 203 of the Immigration and Refugee Protection Regulations (IRPR) are applicable to the assessment of employment offers made through the LMIA program. Section 203(1) of the IRPR provides:

Assessment of employment offered

203. (1) On application under Division 2 for a work permit made by a foreign national other than a foreign national referred to in subparagraphs 200(1)(c)(i) to (ii.1), an officer must determine, on the basis of an assessment provided by the Department of Employment and Social Development, of any information provided on the officer’s request by the employer making the offer and of any other relevant information, if

(a) the job offer is genuine under subsection 200(5); […]

Section 200(5) of the IRPR provides:

Genuineness of job offer

200. (5) A determination of whether an offer of employment is genuine shall be based on the following factors:

(a) whether the offer is made by an employer that is actively engaged in the business in respect of which the offer is made, unless the offer is made for employment as a live-in caregiver;

(b) whether the offer is consistent with the reasonable employment needs of the employer;

(c) whether the terms of the offer are terms that the employer is reasonably able to fulfil; and

(d) the past compliance of the employer, or any person who recruited the foreign national for the employer, with the federal or provincial laws that regulate employment, or the recruiting of employees, in the province in which it is intended that the foreign national work.

IRPR, par. 200(5)

            The definition is conjunctive meaning all four factors must be met for a Canadian job offer to be genuine.  So, even if an employer is actively engaged in business, the offer is legitimate and consistent with the employer’s needs and the employer can meet the needs of the offer, but . . . the employer has past compliance issues, an offer of employment will be deemed not genuine.  So, what a genuine job offer is, is not easily determined.  Factor in a myriad of policy interpretations by Employment and Social Development (ESDC) officers and some limited case law and the picture can even become murkier.     

            There are two takeaways from caselaw I would like to address in this blog that can be helpful in challenging LMIA decisions as well preparing LMIA applications.   

ESDC Officers Must Properly Communicate Concerns

            For example, past compliance issues aside, determinations made by Officer’s rooted in a credibility concern rather than the sufficiency of the evidence should be put to employers.  The duty of procedural fairness requires that an applicant has a reasonable opportunity to respond and provide further information to address an officer’s concern.  In the context of LMIA assessments, Chief Justice Crampton explained the need for notice in Frankie’s Burgers Lougheed Inc.: [1]

[E]mployers have a legitimate expectation that they will be afforded an opportunity to respond to any concerns that an ESDC officer may have regarding their credibility or the authenticity of documentation that they supply in support of a request for a positive LMO […].”

[80]    […] This is because it is possible that the Applicant may have been able to alleviate those concerns, in which case the officer may well have reached a different conclusion regarding the Applicant’s failure to include a full business address for the Seton location in its advertisements. […] [Emphasis added]

ESDC Officers Should Not Rely on One Source of Data

        The cases Paturel International Company and Seven Valleys Transportation Inc. stand for the principle that an Officer can fetter discretion during an LMIA assessment when adverse findings are based on a single analytic factor or a single source of data. A conclusion reached by a decision-maker who has fettered discretion is, per se, unreasonable.[2]        

    In Paturel International Company, the Officer refused the LMIA application after considering the job’s effect on the Canadian labour market, pursuant to s. 203(3) of the IRPR. The Officer determined that the offered wage was inconsistent with the prevailing wage for the occupation. The Court found the Officer had unreasonably fettered discretion in two ways. First, the Officer’s s. 203(3) analysis was not global because it focused on a single factor.

Second, the Officer relied solely on one source of data when calculating prevailing wage, even though there was information on record that challenged the reliability of this data. Both of these are examples of unreasonable decision-making and a reminder to use several points of data to substantiate submissions.

To learn more, check out our recent publication, Labour Market Impact Assessments, Compliance, and Enforcement: A Practical Guide.

As always, thank you for reading, and please stay safe.