This post was written prior to our January 2017 merger, under our previous firm name, Aikins, MacAulay & Thorvaldson LLP.
When an employer is looking to hire a temporary foreign worker (TFW) in Canada, they typically will have to obtain a Labour Market Impact Assessment (LMIA). LMIAs are issued by Employment and Social Development Canada after the employer proves they have actively recruited for the position in Canada and there is no Canadian willing and able to fill the position.
Over the last year and a half, the criteria for obtaining a positive LMIA has become more stringent. In a string of federal court decisions, some of the more stringent requirements were upheld. However, a court decision from last fall may mark a change to interpretations that favour employers.
In the case of Canadian Reformed Church of Cloverdale B.C. v. The Minister of Employment and Social Development Canada, a BC church submitted their LMIA application to hire a foreign translator. The LMIA application was initially refused because the government felt that the church had not shown that it made reasonable efforts to hire or train a Canadian citizen/permanent resident.
In this case, the decision centred on the content of the church’s job posting for the position. In their job posting, the church failed to list its business address. On the website of Employment and Social Development Canada, an employer’s business address is one of 11 items that must be included in all job postings.
In court, the church argued that the officer who assessed the application relied exclusively on internal departmental guidelines regarding job posting requirements rather than on the language found in the law. The church also argued that requiring them to list a specific business address rather than a general location as to where the work would be done was unreasonable. In the online ads, the church’s business address was available through links to its website and map links to the place of work were included.
The judge in this case agreed that the officer came to an unreasonable decision. The judge stated that the legal requirements of the regulations included whether an employer “has made, or has agreed to make, reasonable efforts” to hire or train Canadian citizens/permanent residents. The requirement to have a business address included in the job posting was not a regulatory requirement but an internal guideline. While the judge found that internal guidelines can serve as a useful benchmark, they cannot be treated as binding.
According to the judge, refusing an application simply because the minimum job posting requirements were not met was not proper. The officer should have determined whether the church made “reasonable efforts” to hire or train Canadians/permanent residents as opposed to refusing the application solely because of the lack of a business address. While the officer was entitled to consider the absence of the business address as a factor, the judge felt that this was not sufficient for rejecting the church’s application entirely.
On a practical basis, it is always useful to ensure job posting for LMIAs meets the internal guidelines of Employment and Social Development Canada. The closer the job posting meets the government’s internal guidelines, the greater likelihood of LMIA application success.
In summary, clearly highlight the following for an officer to review:
- the number and types of ads run
- the length of time and frequency each ad was run
- other efforts conducted to seek out Canadian citizen/permanent resident candidates
- the results of all recruitment efforts
Where there are deficiencies in the advertising, it should be stressed that the assessing officer has an obligation to determine whether “reasonable efforts” have been made.
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 email@example.com.