On Tuesday the Federal Court upheld a decision by a Human Resources and Skills Development Canada (HRSDC) officer to approve ten labour market opinions (LMOs) allowing HD Mining International Ltd. to hire 201 Chinese miners to extract a bulk coal sample at its Murray River Project near Tumbler Ridge, B.C.
Mr. Justice Zinn’s decision is the first case to examine the government’s Temporary Foreign Worker Program (TFWP) and the power to issue LMOs under section 203 of the Immigration and Refugee Protection Regulations. The April, 2012, decision by Officer MacLean was challenged by two unions, the Construction and Specialized Workers’ Union and the International Union of Operating Engineers, acting in the public interest.
With few exceptions, a foreign worker must obtain a permit to work in Canada. In most cases, in deciding to issue a work permit an immigration officer must determine, on the basis of an opinion provided by HRSDC, whether the employment of the foreign worker is likely to have a neutral or positive effect on the labour market in Canada. The opinion, known as the LMO, is based upon six factors set out in Regulation 203(3). They include whether the employment of the foreign national will likely result in direct job creation or job retention for citizens or permanent residents, in the creation or transfer of skills and knowledge for the benefit of citizens or residents, or fill a labour shortage; and whether the wages offered are consistent with prevailing wages and the working conditions meet generally accepted standards, whether the employer has made, or has agreed to make, reasonable efforts to hire or train Canadian citizens or permanent residents, and whether it would affect any labour disputes.
Justice Zinn found the officer did not fetter his discretion when assessing the LMO application, or make any unreasonable assessment when considering the factors set out in Regulation 203(3). He determined that it is not necessary for an applicant to satisfy all of the six factors. The HRSDC officer has to examine each factor and can assess what weight is given to each factor. In HD Mining’s case, the officer found that while the company did not show positive job creation or skill transfers factors, all of the other factors were positive so the LMO would be issued.
The unions challenged the efforts of the company in hiring Canadian workers, pointing out that very few Canadian applicants were interviewed for positions. The court found no error by the company in fulfilling advertising requirements set out by HRSDC. Furthermore, it found that the small number of Canadian interviewees did not give rise to any concern that recruitment efforts were not genuine. The officer had not sought to review any resumes submitted by any applicants. Justice Zinn stated that the HRSDC officer “is not a human resources specialist or a recruitment officer” and he “would be very surprised if a review of the resumes would have been any more meaningful to the officer than to the Court.” He added, “an employer must be given some latitude in its hiring even within the TFWP.”
The case provides guidance for employers in recruiting temporary foreign workers. HRSDC will establish advertising requirements after its assessment of the labour market situation for the specified occupation. The employer will have to keep detailed records of its advertising and recruiting efforts, but will be given latitude in its hiring decisions. An employer may have to produce such records. The decision does not address what factors are relevant in rejecting potential Canadian applicants, as it was not necessary in this case. Finally, an LMO application has to address all the factors set out in Regulation 203(3), but does not have to positively satisfy all the factors.
The government is continuing to review the TFWP to ensure it is working in the best interests of Canadian workers and businesses. Since this case upholds the current process, I do not expect any major changes to the procedure.
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