Canadian Reformed Church of Cloverdale B.C. v. Canada (Employment and Social Development)
2015 FC 1075
Normally, a Canadian employer must offer a job to a qualified Canadians first before offering it to a foreign national. Domestic recruitment activities are usually required, and when no qualified Canadians can be found, the employer must apply for a Labour Market Impact Assessment (LMIA) from Service Canada to confirm that “reasonable efforts” were made to hire Canadians first, and that hiring a foreign national would have a neutral or positive effect on the labour market.
To assist officers making the LMIA, Service Canada issues guidelines on numerous factors, including what details need to be contained in an advertisement for the position. Service Canada states on their website that the advertisement must include the:
- Company operating name
- Business address
- Title of position
- Job duties (for each position, if advertising more than one vacancy)
- Terms of employment (e.g. project based, permanent position)
- Benefits package being offered (if applicable)
- Location of work (local area, city or town)
- Contact information
- Skills requirements
Service Canada officers have been treating the guidelines as mandatory, and any deficiency would lead to a negative LMIA.
In the present case, the Church advertised for a translator to translate their religious materials. When no qualified Canadians were found, the Church applied for a LMIA.
The Service Canada officer who assessed the application found that all requirements were met, except that the Church’s advertisements did not include the Church’s business address, notwithstanding that the location of work was stated. The officer issued a negative LMIA.
We assisted the Church to challenge the negative LMIA, arguing that job applicants were informed of the location of work, and did not necessarily need to know the business address of the employer before deciding whether or not to apply for the position. We argued that by treating the guidelines as mandatory, the Service Canada officer fettered the discretion granted to her under the immigration regulations to assess whether “reasonable efforts” were made to hire Canadians/permanent residents.
The Federal Court of Canada agreed that “by treating the applicable guidelines as mandatory requirements, the officer fettered her discretion and arrived at an unreasonable decision to reject the Church’s assessment”.
This case is an important reminder that civil servants need to perform their duties as authorised by the law, and must not elevate departmental guidelines to the level of laws.
A Government of Canada news release disclosed that citizen of Senegal was recently found guilty of misrepresentation under subsection 127(a) of the Immigration and Refugee Protection Act (“IRPA”) and was fined $2,000.00.
Misrepresentation can arise when a person directly or indirectly misrepresents or withholds material facts relating to a relevant matter that induces or could induce an error in the administration of IRPA.
As a friendly reminder to all people seeking to immigrate to Canada, immigration-related misrepresentation is an issue that is taken very seriously by the Canadian government. People who have advised potential immigrants to misrepresent may also face penalties under IRPA. Aside from the mark that misrepresentation can leave on a person’s Canadian immigration record, penalties for misrepresentation include but are not limited to:
- fines of up to $100,000.00 or imprisonment of up to 5-years, or both; or
- a 5-year ban from entering Canada.
Whenever corresponding with the Canadian government, answer questions and requests for information directly and accurately in order to avoid possible misrepresentation. At Lowe & Company, we can help to answer questions that you may have about misrepresentation and any other questions you may have. Should you wish to schedule a consultation, please contact us at email@example.com or call us at 604-875-9338 .