March 15, 2020
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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.