Language Requirement Hazy for Work Permit Applications

This post was written prior to our January 2017 merger, under our previous firm name, Aikins, MacAulay & Thorvaldson LLP.

When a foreign national applies for a work permit to work temporarily in Canada, he or she must provide information to prove that he or she meets the job requirements for the position. If the work permit depends on an employer’s positive Labour Market Opinion (LMO), the LMO will list out the job requirements. A work permit can be refused if the foreign national cannot prove that he or she meets the job requirements listed in the LMO.

Last month, the Federal Court decided the case of Virk v. The Minister of Citizenship and Immigration.  In that case, Mr. Virk’s work permit was refused because, among other things, he could not demonstrate that he met the English language requirements for the position.

In the Virk case, the approved LMO indicated that the successful candidate must have basic oral and written English.  In his work permit application package, Mr. Virk provided nothing to verify his language skills. He argued that the fact that he submitted an English language version of the application form and a cover letter in English was evidence of his language proficiency.  The judge did not accept this argument.

The judge found that the officer did not have an obligation to seek out the missing evidence.  The judge clearly indicated that individuals applying for work permits are required to submit all evidence necessary to establish their case without being prompted or reminded by immigration officers.

For human resources personnel recruiting from abroad, it is important to pay attention to the position requirements that Service Canada lists on a LMO. In an article last year on a similar topic (Does your labour market opinion disqualify your chosen candidate for a job?), I discussed a court case from 2012 in which a work permit was denied because an individual did not provide proof of her work experience as required by the LMO.

The difference in the Virk case is that it deals with evidence an individual must provide to prove that the language requirements of the position are met. In most cases, employers indicate that English or French are required for the job. In doing so, this may require prospective employees to prove their ability to communicate in one or both languages.

In Virk v. The Minister of Citizenship and Immigration, the judge did not discuss what would constitute proof that Mr. Virk met the language requirements for the job. In permanent residency and citizenship applications, Citizenship and Immigration Canada accepts minimum scores from a number of language tests as proof of language proficiency. Does this mean that all work permit applications that require basic written and oral English require an applicant to submit language test results with work permit applications?  If a language test or some other evidence of English language proficiency is not provided, the Virk case indicates that officers can refuse the work permit application.

Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.

Reis is a partner with Aikins Law and practices in the area of immigration law. If you would like to know more about Reis, follow him on Twitter or connect with him on LinkedIn. Reach him at rpagtakhan@mltaikins.com.