The much talked about case of the BC miner bringing foreign workers from China has failed, as anticipated by observers. This case was more about politics than about policy.
Construction and Specialized Workers' Union, Local
1611 v.
Canada (Minister of Citizenship and Immigration)
Between
Construction and Specialized Workers' Union, Local 1611;
International Union of Operating Engineers, LOCAL 115,
Applicants, and
The Minister of Citizenship and Immigration Canada; the
Minister of Human Resources and Skills Development Canada; HD
Mining International Ltd.; Canadian Dehua International Mines
Group Inc.; and Huiyong Holdings (BC) Ltd., Respondents
[2013] F.C.J. No. 553
2013 FC 512
Docket IMM-11316-12
Federal Court
Vancouver, British Columbia
Zinn J.
Heard: April 9-12, 2013.
Judgment: May 21, 2013.
(148 paras.)
REASONS FOR JUDGMENT AND JUDGMENT
1 ZINN J.:-- The Applicants challenge a decision
made under Canada's Temporary Foreign Worker Program [TFWP] which is
administered by Human Resources and Skills Development Canada [HRSDC] and
Citizenship and Immigration Canada [CIC]. It appears that this is the first
time a positive decision made under the TFWP has ever been challenged.
2 The
Applicants were granted public interest standing by the Court to bring this
application for leave and judicial review. Specifically, they challenge the
decision of Officer MacLean of HRSDC to issue positive Labour Market Opinions
[LMOs] under section 203 of the Immigration and Refugee Protection Regulations, SOR/2002-227 [Regulations], to HD Mining International Ltd. [HD Mining]. Officer MacLean
issued these positive LMOs because he decided that offers of employment by HD
Mining to 201 workers from China to do the work of extracting a bulk sample
from HD Mining's coal properties near Tumbler Ridge, British Columbia [the
Murray River Project], would likely result in "a neutral or positive
effect on the labour market in Canada."
3 The
novelty of this application, the recent public interest in the TFWP and the
significance of the issues to the Applicants, the corporate Respondents and the
Ministers, made for a hard-fought application. All counsel are thanked for
their comprehensive written and oral submissions. Five pre-hearing motions
remained outstanding at the commencement of the hearing on the merits and were
argued over a full day. Before the merits were heard, I issued oral rulings to
be followed by formal Reasons and Orders for all but part of one motion which
was reserved and is dealt with in these Reasons for Judgment.
BACKGROUND The Parties
4 The
Applicants are trade unions who represent mining workers in British Columbia.
They do not represent any workers of HD Mining at the Murray River Project. As
previously noted, they were granted public interest standing by Order of
Justice Campbell dated November 22, 2012, "because, realistically, no
other means exist to engage judicial accountability with respect to the
decision-making that has occurred within an important government strategy to
maintain the economic health of Canada."
5 HD
Mining describes its principal business activity as "mine properties
development, mines development, [and] coal mining." HD Mining applied for
LMOs on March 2, 2012, and March 15, 2012, to bring 201 temporary foreign
workers [TFWs] from China to Canada to fill 201 positions at the Murray River
Project which were stated to be "necessary to work on the construction of
the decline/shaft and complete bulk sample mining of coal" [the Bulk
Sample Work]. Ten positive LMOs were issued by Officer MacLean of HRSDC on
April 25, 2012, and, as is noted above, it is his decision to issue these
positive LMOs that is under review.
6 The
Respondent Huiyong Holdings (BC) Ltd. is the controlling shareholder of HD
Mining.
7 Canadian
Dehua International Mines Group Inc. [CDI] owns 40 per cent of the shares of HD
Mining. The Murray River Project was previously to have been undertaken by CDI.
In March 2011, CDI applied for LMOs for 92 foreign workers most of whom,
according to Officer MacLean in his Bulk Request Assessment and Recommendation,
a document described below, were underground coal miner and underground coal
support and service workers. CDI received positive LMOs on April 15, 2011.
8 Officer
MacLean writes that he was advised by HD Mining that CDI "was not able to
secure work permits" for these 92 foreign workers and HD Mining
subsequently "assumed responsibility for the development and
operation" of the Murray River Project and "essentially" HD
Mining resubmitted the request for 84 of the 92 original foreign workers,
together with LMOs for an additional 117 foreign workers, for a total of 201
foreign workers. More will be said of this later; however, the basis for the
difference in the number of foreign workers requested between CDI and HD Mining
was stated to be that CDI, unlike HD Mining, "did not include the
construction of the mine shaft simultaneously with the construction of the
decline." Officer MacLean, when assessing the HD Mining application, did
consider information in the CDI LMO file. Again, more will be said of this
later.
9 The
two Respondent Ministers, the Minister of HRSDC and the Minister of CIC each
are responsible for a portion of the TFWP. HRSDC, through Service Canada, is
responsible for issuing LMOs. CIC, based in part on the LMO, is responsible for
issuing work permits to the foreign workers covered by the LMOs permitting them
to enter and work in Canada.
The Temporary Foreign Worker Program
10 The
Ministers write in their memorandum that the TFWP is designed to
"facilitate the entry of foreign workers from other countries to fill
labour shortages." Workers under the TFWP require work permits issued by
CIC pursuant to section 200 of the Regulations in order to enter Canada. Paragraph 200(1)(c)(iii) of the Regulations stipulates that a CIC officer
"shall issue a work permit to a foreign national if, among other things,
the foreign national has been "offered employment, and an officer has made
a positive determination under paragraphs 203(1)(a) to (e)."
11 The
positive determination required to be made by the CIC officer under paragraphs
203(1)(a) to (e) of the Regulations includes, in paragraph 203(1)(b), a determination by an officer
"on the basis of an opinion provided" by HRSDC whether "the
employment of the foreign national is likely to have a neutral or positive
effect on the labour market in Canada."
12 The
"opinion" provided by HRSDC is the LMO. Paragraphs 203(3) (a) to (f)
of the Regulations stipulate the
factors the officer is to consider when issuing an opinion as to whether
"the employment of the foreign national is likely to have a neutral or
positive effect on the labour market in Canada:"
· (a)
whether the employment
of the foreign national is likely to result in direct job creation or job
retention for Canadian citizens or permanent residents;
· (b)
whether the employment
of the foreign national is likely to result in the creation or transfer of
skills and knowledge for the benefit of Canadian citizens or permanent
residents;
· (c)
whether the employment
of the foreign national is likely to fill a labour shortage;
· (d)
whether the wages
offered to the foreign national are consistent with the prevailing wage rate
for the occupation and whether the working conditions meet generally accepted
Canadian standards;
· (e)
whether the employer has
made, or has agreed to make, reasonable efforts to hire or train Canadian
citizens or permanent residents; and
· (f)
whether the employment
of the foreign national is likely to adversely affect the settlement of any
labour dispute in progress or the employment of any person involved in the
dispute.
HD Mining's LMO Applications and the Assessment
Process
13 On
March 2, 2012, HD Mining submitted an application for 84 TFWs it required to
construct the decline at the Murray River Project. On March 15, 2012, it
submitted a further application for 117 TFWs it required for shaft
construction. In total, HD Mining sought ten LMOs covering 201 TFWs in six job
categories, as follows: 65 Underground Production and Development Miners, 16
Underground Conveyor Operators, 14 Underground Coal Ventilation Workers, 8
Underground Coal Dewater Workers (Mine Service and Support Workers), 14
Mechanics-Mining Machinery, 30 Underground Production and Development Miners,
16 Underground Conveyor Operators, 7 Underground Coal Ventilation Workers, 16
Underground Coal Mine Timbermen, and 15 Mechanics-Mining Machinery.
14 On
April 2, 2012, Officer MacLean of Service Canada was assigned to process these
requests. He worked full-time on these applications between April 10, 2012, and
April 25, 2012. In his affidavit, sworn March 19, 2013, Officer MacLean
describes the process he followed in assessing these LMO applications. He
conducted labour market information [LMI] research, identified the National
Occupation Classification [NOC] codes that corresponded to the positions
referenced in the applications, assessed the prevailing wage rates for the
applicable NOCs, reviewed proof of recruitment and advertising, and conducted
telephone interviews with representatives of HD Mining.
15 In
addition to independent research, as noted above Officer MacLean accessed
Service Canada's file on the LMO application submitted the previous year by
CDI. He attests that "I was not the program officer who assessed and
approved the 2011 CDI LMOs but I reviewed the file information and any LMI
research conducted during the assessment of that file for background
information." Officer MacLean was cross-examined on his access to and
reliance on the CDI LMO file and, as discussed below, the fact that that entire
file was not included in the Certified Tribunal Record [CTR] is a significant
matter of dispute.
16 Officer
MacLean's assessment of the LMO applications is contained in "Assessment
Notes" that he prepared and retained in the computer records of HRSDC.
When his assessment was completed, he filled out an internal form entitled
"Bulk Request Assessment and Recommendation" which briefly sets out a
summary of the request, the wages and working conditions, recruitment efforts,
and the officer's comments. He attests that HRSDC requires that this form be
completed when an officer foresees "issuing a positive LMO involving more
than 50 positions in a specific occupation." Officer MacLean transmitted
his Bulk Request Assessment and Recommendation form by email of April 23, 2012,
to a number of persons stating that "Any comments, guidance, objections,
etc would be appreciated." No substantive feedback was received, and
Officer MacLean issued ten positive LMOs to HD Mining covering the 201 TFWs.
PRE-HEARING MOTIONS
17 As
noted earlier, five outstanding motions were heard at the commencement of the
hearing. Rulings and Orders have issued on all except the motion - Motion #2,
which challenges the admissibility of affidavits sworn by Curtis Harold and
Douglas Sweeney, which was taken under reserve.
Motion #2
18 By
motion filed March 28, 2013, CDI challenged the admissibility of the following:
· a.
Affidavit #1 of Curtis
Harold, sworn March 8, 2013; and
b. Affidavit of Douglas Sweeney, sworn March 13,
2013.
19 The
Applicants' purpose in filing the affidavits of Mr. Harold and Mr. Sweeney was
to support its submission that HD Mining misrepresented to HRSDC the nature of
its mining operation at the Murray River Project. They submit that these
affidavits show that HD Mining had represented to the BC Ministry of Natural
Resource Operations, when it applied for a Bulk Sample Permit, that the mining
technique it would use for that purpose was room and pillar and not long-wall
mining. This is said to be contrary to the statement in the letter submitted
with the LMO applications, that "HD Mining will be utilizing a long-wall
mining construction method" which had not been used in Canada.
20 In
the submission of the Applicants, this evidence shows that HD Mining had
obtained the LMOs through misrepresentation. Moreover, it was submitted, if the
Court found that Officer MacLean erred in his decision, this evidence went to
whether the Court ought to, as HD Mining requested, exercise its discretion and
refuse to set the LMOs aside.
21 At
the close of argument, I held that it was premature to rule on the
admissibility of these affidavits without having heard full submissions on the
merits. Having now heard the parties' submissions on the merits and having
considered the parties submissions on the motion, I find that these two
affidavits are not admissible in the application. Moreover, as I discuss below,
even if they had been admitted, they would have been given no weight as they
are unreliable and do not support the claim of the Applicants that HD Mining
misrepresented anything to HRSDC.
· Affidavit #1 of Curtis Harold, sworn March 8, 2013
22 Mr.
Harold is a business agent for one of the Applicant unions. He attended at the
offices of the BC Ministry of Natural Resource Operations "where
arrangements had been made to make available materials submitted by HD Mining
for the Murray River Project." Mr. Harold met Diane Howe, the Deputy Chief
Inspector of Mines, who had been informed that he would be coming to copy the
application HD Mining had submitted for the Murray River Project.
23 He
says that Ms. Howe "took me to a table with a number of binders of
documents" which she described as "the application I had
requested." He was also provided with "an electronic version of the
application, which Ms. Howe copied." Mr. Harold says that he was later
informed by counsel for the Applicants that he had been provided with "the
wrong file."
24 Consequently,
Mr. Harold re-attended at the Ministry offices and was directed by Ms. Howe to
a table of binders. He says that "I confirmed with Ms. Howe that these
materials had been received from HD Mining and were in relation to the Murray
River Project, and I inspected the documents and confirmed this was the
case." Again, he was provided with an electronic version of the
application file and was told to take the four large binders, rather than copy
them, as they were copies of the original file. He says that he then sent both
the electronic file and the paper file to the Applicants' lawyers.
25 Although
he swears that he was provided with both an electronic and paper copy of the
Ministry's file, he attaches only a small part of it to his affidavit, which
makes it impossible for the Court to make any assessment whether the entire
contents of the application supports what he claims.
26 Specifically,
Mr. Harold attached to his affidavit three Exhibits, which he describes as
follows:
· 10.
I attach as Exhibit
"A" to my affidavit a copy of the "Notice of Work Application:
Murray River Coal Bulk Sample Project" dated June 30, 2011 which was
included in both the electronic and paper versions of the materials I was
provided by the Ministry of Natural Resource Operations on February 15, 2013,
and including the support document "First Aid and Mine Rescue Emergency
Response", but excluding the other support documents..
· 11.
I attach as Exhibit
"B": to my affidavit a copy of the Attachment "C" to the
Notice of Work Application, titled "Murray River Bulk Sample Design"
which I was also provided by the Ministry of Natural Resource Operations on
February 15, 2013. This document was only included in the paper version of the
file that I copied.
· 12.
I attach as Exhibit
"C" to my affidavit a copy of extracts of the "Supplement to
Notice of Work Application - Murray River Project Bulk Coal Sample" dated
January 18, 2012, including the covering letter, List of Documents, Updated
Equipment List, and Safety Procedures for Bulk Sample Mining. I was also
provided this document by the Ministry of Natural Resource Operations on
February 15, 2013. This document was only included in the paper version of the
file that I copied.
· 13.
The supplement to Notice
of Work Application was the most recent document included in the materials that
I was provided by the staff at the Ministry of Natural Resource Operations. I
did ask if they had any further documents that pertained to the Murray River
Project and I was told that I had been provided with all of the documents they
had in relation to the Murray River Project.
27 CDI
opposes the admissibility of this affidavit and these Exhibits, in part, based
on a submission that the Applicants, in filing this material, are trying to do
an end-run around an earlier pre-hearing Order of this Court. Before being
granted leave in this application, the Applicants sought leave to file an
affidavit in reply attaching thereto as exhibits the two documents attached as
Exhibits A and B to Mr. Harold's affidavit. Leave was refused by Justice
Manson, who wrote that those documents "are outdated and do not reflect
the supplemental information in respect of HD Mining's operations provided to
the Ministry of Energy, Mines and Natural Gas, in the period of January 2012
through January 2013, including the time the labour market opinions (LMOs) were
applied for in March 2012."
28 In
finding that the Applicants' proposed information was outdated, Justice Manson
relied on information contained in Affidavit 3 of Michael Xiao sworn February
22, 2013, which had been filed in response to the Applicants' motion. In it Mr.
Xiao swears to filing plans and drawings up to January 2013. The reference by
HD Mining to that affidavit in its memorandum was the subject of a motion and
it was ruled that the reference to it was improper.
29 CDI
also objects to the admissibility of Mr. Harold's affidavit on the basis that
it includes hearsay evidence and contains materials not before the
decision-maker.
30 Rule
10 of the Federal Courts Immigration and Refugee
Protection Rules, SOR/93-22 [the Immigration
Rules] speaks to an applicant filing "supporting
affidavits verifying the facts relied on by the applicant in support of the
application." Justice Manson noted that "this Court has granted some
latitude in permitting documents to be provided beyond those before the decision
maker;" however, an affidavit filed in support must be confined to facts
within the personal knowledge of the deponent. Hearsay is admissible provided
necessity and reliability are established: Zheng v
Canada (Minister of Citizenship and Immigration), 2002
FCT 1152. The Applicants made no effort to establish that it was
"necessary" that the affidavit with its attachments be sworn by
someone other than the government official responsible for maintaining these
official documents. I suspect no such argument was available because Ms. Howe,
who would have been an appropriate affiant, was apparently very co-operative
with and helpful to the Applicants.
31 Further,
I do not find that this evidence is reliable. Mr. Harold swears that he was
provided with a paper and an electronic copy but some of the exhibited
documents are found only in one source. In particular, the Supplement to Notice
of Work Application - Murray River Project Bulk Coal Sample dated January 18,
2012, which was not before Justice Manson, was found only in the paper version
of the file. This makes suspect the truth of the statement that Ms. Howe has
provided a full paper and electronic copy of the application.
32 More
troubling is the hearsay statement from Mr. Harold that he was told, by some
unnamed person, that he had been "provided with all the documents they had
in relation to the Murray River Project" and that the most recent document
was the Supplement to Notice of Work Application - Murray River Project Bulk
Coal Sample dated January 18, 2012. It is troubling because no source of this
information is stated by Mr. Harold and because Justice Manson references
information provided to the Ministry "in the period January 2012 through January 2013" (emphasis added).
In light of this Court's prior statement that there was information provided up
to January 2013, evidence to the contrary, to be reliable, had to be based on
personal knowledge, not hearsay.
33 As
the affidavit does not meet the test for an exception to the admissibility of
hearsay evidence in applications under the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA], it is not admissible.
· Affidavit of Douglas Sweeney, sworn March 13, 2013
34 Mr.
Sweeney is a former Chief Inspector of Mines for British Columbia. He swears
that he was "in touch" with Ms. Howe and had requested that she
provide him with "a copy of the Bulk Sample Permit that was issued to HD
Mining for the Murray River Project, as well as the Notice of Work
Application." In Ms. Howe's email to him she writes:
· Attached is a copy of the Bulk Sample permit for the Murray River
project. I just checked on the [Notice of Work] and it is an immense document
and sorry but I will not be able to get a copy for your review, we just don't
have the time or the folks that can help put it together in a timely way.
Mr. Sweeney goes on in his affidavit to attest that
he "was, however, able to get a copy of the Notice of Work Application
from the Steelworkers and from Mr. Gordon, as described above." What is
"described above" is that Mr. Gordon, counsel for the Applicants
provided him with a copy of:
· Affidavit #3 of Michael Xiao, as well as with the Notice of Work
Application, Murray River Coal Bulk Sample Project dated June 30, 2011 and
submitted by HD Mining, as well as portions of the Supplement to the Notice of
Work Applications, Murray River Coal Bulk Sample Project dated January 12,
2012, which portions included a covering letter addressed to Diane Howe, the
Deputy Chief Inspector of Mines Reclamation and Permitting, a List of
Documents, Updated Equipment List, and Bulk Sample Related Safety Procedures.
35 This
evidence raises additional concerns. First, according to Curtis Harold, on
February 15, 2013, Ms. Howe provided him with an electronic copy of the
Ministry's file as well as a paper copy. That file material included the Notice
of Work; however, very shortly thereafter Ms. Howe tells Mr. Sweeney that she
can't get him a copy because "we just don't have the time or the folks
that can help put it together in a timely way." How can that be if a paper
and an electronic version had already been assembled and given to Mr. Harold?
36 Second,
the Bulk Sample Permit issued to HD Mining on March 15, 2012 which Ms. Howe
sent to Mr. Sweeney was, one would assume, contained in the Ministry's file;
however, this permit was not included in the allegedly complete materials she
provided to Mr. Gordon on February 15, 2013 - eleven months after the permit
was issued. We know that it was not included because Mr. Gordon says that the
most recent document the Ministry had, a copy of which was given to him, was the
Supplement to the Notice of Work Application which is dated January 18, 2012.
37 These
concerns offer further reason to question the completeness of the materials Mr.
Harold was given and has produced. It also brings sharply into question the
accuracy of the hearsay statement provided to Mr. Harold in his affidavit that
the Supplement to the Notice of work dated January 18, 2012, was the most
recent document in the Ministry files.
38 In
any event, Mr. Sweeney swears, based on his review of "portions" of
the Supplement to the Notice of Work Application dated January 12, 2012,
including the Updated Equipment List and Bulk Sample Related Safety Procedures,
that "there is no indication in these documents that long wall mining will
be used" nor does the equipment "list any long wall mining
machinery." I agree with CDI that Mr. Sweeney is offering an opinion based
on these documents when he has not been qualified to provide one. Further, he
is basing his opinion on documents that the Court has previously found to be
"outdated."
39 In
addition to those opinions, Mr. Sweeney lastly offers his opinion in paragraph
7 of his affidavit that "under paragraph 2(d) of the Bulk Sample
Permit" HD Mining would be prevented from changing the method of bulk sampling.
However, there is no paragraph 2(d) of the Bulk Sample Permit. This may, as was
submitted by the Applicants, have been in error and he may have meant to
reference paragraph 2(c); nonetheless, it does little to support any view that
he has offered reliable evidence, even if it was not objectionable as opinion
evidence.
40 For
these reasons, I find that the affidavit of Mr. Sweeney is not admissible. In
any event, had it been accepted, it would have been given no weight. It is
simply not reliable evidence as it relies in large part on Mr. Harold's
affidavit and its exhibits which I have found not to be reliable.
41 Accordingly,
I find that the Affidavit #1 of Curtis Harold, sworn March 8, 2013, and the
Affidavit of Douglas Sweeney, sworn March 13, 2013, are inadmissible and are to
be struck from the record.
ISSUES
42 The
parties raised a number of issues going to the merits of the application, which
I summarize as the following:
· 1.
Whether the Court has or
should extend the time limit for seeking leave in this case;
· 2.
Whether the
decision-maker has provided a proper record under Rule 17 of the Immigration Rules and, if it has not, what is
the remedy for that breach;
· 3.
Whether portions of
Officer MacLean's affidavit ought to be struck as an attempt to bolster the
reasons for decision;
· 4.
Whether HD Mining
materially misrepresented the nature of the work in its LMO applications;
· 5.
What is the appropriate
standard of review of an officer's decision to grant a positive LMO; and 6.
Whether Officer MacLean made a reviewable error in deciding to issue positive
LMOs to HD Mining.
ANALYSIS
1. Extension of Time
43 The
decision under review that positive LMOs would issue was made and communicated
to HD Mining by correspondence dated April 25, 2012. Paragraph 72(2)(b) of IRPA provides that when an application for
leave and judicial review concerns a decision made in Canada, as this one was,
the applicant is required to serve and file it "within 15 days ... after
the day on which the applicant is notified of or otherwise becomes aware of the
matter." Paragraph 72(2)(c) provides that "a judge of the Court may,
for special reasons, allow an extension of time for filing and serving the
application."
44 HD
Mining says that it "strains credulity" to accept that the Applicants
did not have knowledge of the LMO decisions at an earlier date given that one
of the Applicant unions has members, and officials, and an office in Tumbler
Ridge, and there was local media on this issue as early as Spring 2011. This is
speculative. The best evidence as to when the Applicants first became aware of
the positive LMOs having issued is found in the affidavit of Brian Cochrane,
Business Manager of the International Union of Operating Engineers, Local 115
and Affidavit #2 of Mark Olsen, Business Manager of the Construction and
Specialized Workers' Union, Local 1611, both of whom swear that they first
became aware when the Vancouver Sun reported it on or about October 10, 2012. Both were cross-examined
extensively but the evidence of neither was shaken. Accordingly, their evidence
is accepted. By operation of paragraph 72(2)(b) of IRPA, the Applicants' time for serving and filing an application for
leave and judicial review expired October 25, 2012.
45 In
their Application for Leave and Judicial Review, filed November 2, 2012, the
Applicants specifically requested an extension of time as required by the Immigration Rules. HD Mining, the only
Respondent that filed submissions, opposed both the leave and the extension of
time request.
46 Rule
6 of the Immigration Rules
stipulates that "a request for an extension of time shall be made in the
application for leave in accordance with form IR-1" and that "a
request for an extension of time shall be determined at the same time, and on the same materials, as the
application for leave" [emphasis added]. Justice Russell granted leave but
did not specifically address the request for an extension of time in his Order.
47 HD
Mining submits that the question of leave remains a live issue and, relying on Deng Estate v Canada (Minister of Public Safety and Emergency
Preparedness), 2009 FCA 59 [Deng
Estate ] and Khalife v Canada
(Minister of Citizenship and Immigration), 2006 FC 221 [Khalife ], submits that "where the order
granting leave to submit the application for judicial review is silent on this
preliminary issue (as it is in this case), it should not be presumed that an
extension of time has been granted."
48 In
Deng Estate, the Court of Appeal
expressly agreed with the following statement by Justice Tremblay-Lamer in Canada (Minister of Human Resources Development) v Eason, 2005 FC 1698, which, although it dealt with a decision of a member
of the Pension Appeal Board, was stated by the Court of Appeal to be a
"similar situation" to the immigration matter before it:
· However, as stated above, the member was silent on the issue of
extension of time. The respondent suggests that as leave to appeal cannot be
granted unless an extension of time is also granted, it can be inferred from
the member's decision to grant leave that she also granted an extension of
time. I disagree. While Mr. Eason did apply for the extension of time and for
leave, it cannot automatically be inferred that the
member turned her mind to the issue of extension of time simply because she
granted leave. The granting of an extension of time must be explicitly
considered by the decision maker. A member exceeds his jurisdiction, or fails
to exercise his jurisdiction, if he grants leave to appeal without also
granting an extension of time within which to appeal.
[emphasis added]
49 Absent
the decision of the Court of Appeal in Deng, I would have thought that it would be proper to presume, in the
absence of contrary evidence, that a leave judge considering an application
that includes a request for an extension of time, properly applied the
provisions of Rule 6 of the Immigration Rules and did not exceed his jurisdiction by granting leave when no
extension of time had been granted. Absent Deng, I would also have thought, given the express wording of Rule 6 that
a request for an extension of time is to be heard "at the same time"
as the leave application, that it is the leave judge alone and not the judge
hearing the application that has jurisdiction to grant the extension of time.
However, I feel that I am bound by the Court of Appeal's decision in Deng Estate and will thus determine whether to
grant an extension of time because Justice Russell did not specifically address
this request in his Order granting leave.
50 The
requested extension of time is granted. I am satisfied that the test summarized
in Patel v Canada (Minister of Citizenship and
Immigration), 2011 FC 670 [Patel ] is met. Under that test, an applicant must establish "a) a
continuing intention to pursue the application; b) that the application has
some merit; c) that no prejudice arises from the delay; and d) that a
reasonable explanation for the delay exists:" Patel, above, at para 12.
51 The
evidence filed establishes a continuing intention to pursue the application
once the Applicants learned of the LMOs. Counsel was retained, including an
expert in immigration law, efforts were made to gain access to the decisions at
issue and research was conducted as to how to attack the impugned decisions.
The application has some merit. Justice Russell, although he dismissed a motion
for an injunction, found that a serious issue had been raised and found there
to be an arguable issue when he granted leave. The fact that the parties argued
the merits of the application for three nearly days itself points to there
being an arguable case.
52 Despite
the best efforts of counsel for HD Mining, I am not convinced that it will
suffer prejudice if the extension of time is granted. It argues that it has
"spent tens of millions of dollars preparing the project" and that it
has relied on the LMOs "in good faith and has arranged all of its planning
and contracting according to a complex work plan with many interrelated steps
leading to completion of the bulk sample." Be that as it may, the
prejudice that needs to be considered here is the prejudice, if any, that
accrued between the deadline for bringing an application and the day the
application was actually brought, not the entire period fifteen days after the
day when the LMO decisions were communicated to HD Mining. The Applicants filed
this application on November 2, 2012, meaning, based on my finding about the
Applicants' state of knowledge, they were only just over a week late. HD Mining
has not argued that any significant prejudice accrued to it during this short time.
Granted, this situation is somewhat unique and potentially unfair to HD Mining
since this application was brought by third parties, on a timeframe coinciding
with their subjective knowledge. Accordingly, a broader conception of prejudice
may be warranted. However, even if one applied a broader concept of prejudice,
there is no proof that any part of these expended funds will be lost if this
application proceeds, or will be lost even if the application is successful. HD
Mining expended these funds and made these preparations based on its belief
that the Murray River Project was a viable coal mine that will generate
substantial profit for the company. That remains unchanged. It may be that HD
Mining will have to adjust its operation if this application is successful;
however, any possible prejudice to HD Mining that might result must be weighed
against the public interest in having the LMO decision reviewed by a court.
53 Lastly,
a reasonable excuse for the delay has been established. As submitted by the
Applicants, this is "first instance" litigation of a decision they
did not have and is against parties the identity of which was uncertain. It is
hardly surprising in such circumstances that the law firms retained would
require some time to ascertain just how to attack the impugned decisions and on
what basis. Moreover, what is a reasonable excuse will depend on the length of
the delay. As I noted above, the Applicants were just over a week late. That
delay is relatively short in view of the complexities of this case. For these
reasons, I grant the extension of time requested by the Applicants.
2. The Record
54 The
Applicants submit that the Ministers have not provided a proper record because
the CTR is both under and over-inclusive.
55 Rule
17 of the Immigration Rules
provides as follows:
· 17.
Upon receipt of an order
under Rule 15, a tribunal shall, without delay, prepare a record containing the
following, on consecutively numbered pages and in the following order:
· (a)
the decision or order in
respect of which the application for judicial review is made and the written
reasons given therefor,
· (b)
all papers relevant to
the matter that are in the possession or control of the tribunal,
· (c)
any affidavits, or other
documents filed during any such hearing, and
· (d)
a transcript, if any, of
any oral testimony given during the hearing, giving rise to the decision or
order or other matter that is the subject of the application for judicial
review, and shall send a copy, duly certified by an appropriate officer to be
correct, to each of the parties and two copies to the Registry.
* * *
· 17.
Dès réception de
l'ordonnance visée à la règle 15, le tribunal administratif constitue un
dossier composé des pièces suivantes, disposées dans l'ordre suivant sur des
pages numérotées consécutivement :
· a)
la décision,
l'ordonnance ou la mesure visée par la demande de contrôle judiciaire, ainsi
que les motifs écrits y afférents;
· b)
tous les documents
pertinents qui sont en la possession ou sous la garde du tribunal
administratif,
· c)
les affidavits et autres
documents déposés lors de l'audition,
· d)
la transcription, s'il y
a lieu, de tout témoignage donné de vive voix à l'audition qui a abouti à la
décision, à l'ordonnance, à la mesure ou à la question visée par la demande de
contrôle judiciaire, dont il envoie à chacune des parties une copie certifiée
conforme par un fonctionnaire compétent et au greffe deux copies de ces documents.
56 The
Applicants submit that the 922 page CTR filed and served by the Minister of
HRSDC pursuant to Rule 17 of the Immigration Rules is under-inclusive because it does not include all of the documents
that Officer MacLean "looked at and consulted" when making his
assessment of the HD Mining LMOs, namely, the entire file generated for the
LMOs that were issued about a year earlier to CDI. They submit that the record
is over-inclusive because the CTR includes documents that were admittedly
copied from a file other than the HD Mining LMO file.
57 I
agree with the submission of the Applicants that because no one other than the
Minister in an immigration related application is involved in the preparation
of the tribunal record, a great deal of trust is reposed in him or her by the
opposite party and by the Court to prepare a proper and complete record. I also
agree with them that "an incomplete record alone could be grounds, in some circumstances, for setting aside a
decision under review" [emphasis added]: Parveen v
Canada (Minister of Citizenship and Immigration) (1999),
168 FTR 103 at para 9, per Reed J.; and see also Machalikashvili
v Canada (Minister of Citizenship and Immigration), 2006
FC 622; Kong v Canada (Minister of Employment and
Immigration) (1994), 73 FTR 204, and Ahmed v Canada (Minister of Citizenship and Immigration), 2003 FCT 180.
58 The
Ministers submit that the jurisprudence cited above shows that setting aside a
decision on the basis of an incomplete record should be done only when the
omitted material is "clearly essential," "particularly
material," or "critical" to an issue and was relied upon by the
decision-maker. They submit that material alleged by the Applicants to have
been omitted from the CTR does not meet this test, even if it is relevant and
ought to have been included in the CTR.
59 Rule
17 of the Immigration Rules
stipulates that in addition to the impugned decision, affidavits and documents
filed during the hearing, and a transcript, if any, the CTR is to contain
"all papers relevant to the matter that are in the possession or control of the tribunal"
[emphasis added]. The Ministers submit that guidance as to the test of
relevance is found in the Court of Appeal decision Pathak
v Canada (Canadian Human Rights Commission) ( re Royal Bank of Canada), [1995] FCJ 555 [Pathak]. In Pathak, the
decision under review was a decision of the Human Rights Commission dismissing
Mr. Pathak's complaint. The CTR included everything that was before the
Commission when it made that decision, including a report of a Commission
investigator. However, in addition, the applicant sought to have included in
the record all of the information that was before the investigator when he made
his report.
60 A
judge of the Trial Division directed the Human Rights Commission to file
certified copies of documents relied upon by the investigator in preparing his
report pursuant to the Federal Court Rules, CRC 1978, c 663, which provided that a party to a judicial review
application could request documents of the decision-maker. Rule 1612(4) further
provided that such requested documents "must be relevant to the
application for judicial review." Given the similarity of that language to
that of Rule 17 of the Immigration Rules, I agree with the Ministers that this authority offers guidance as
to the test of relevance.
61 The
Court of Appeal in Pathak held
that these additional documents were not relevant. It held that the
investigator's report must be presumed to be a faithful and complete summary of
the evidence before him and it further noted that there was no attack in the
notice of application on his report. Accordingly, it held that the evidence
before him was not relevant to the matter under review. At paragraph 10, the
Court of Appeal describes relevant documents for judicial review purposes in
the following manner:
· A document is relevant to an application for judicial review if it
may affect the decision that the Court will make on the application. As the
decision of the Court will deal only with the grounds of review invoked by the
applicant, the relevance of the documents requested must necessarily be
determined in relation to the grounds of review set forth in the originating
notice of motion and the affidavit filed by the applicant.
62 I
pause to note that the Court of Appeal's assertion that relevance must of
necessity be examined with an eye to the grounds of review set out in the
application is a complete response to the suggestion of the Applicants that
there was something improper or nefarious in the Ministers having prepared the
tribunal record in light of and after having examined the grounds of review
alleged by the Applicants.
63 With
that basic framework in mind, the two factual issues that require determination
are whether the CTR improperly excludes relevant documents which should have
been part of the certified record, and whether the CTR improperly includes
documents which ought not be part of the certified record.
Under-inclusive Record
64 In
their Further Memorandum of Fact and Law, the Applicants submit that the CTR
"omits critical documents on which the Officer admittedly relied" [emphasis added]. The
Applicants' oral submission was more broadly stated; it was that "if
Officer MacLean looked at and consulted the [CDI] file, we shouldn't be getting
a portion of it, we should be getting the entire file." This is because,
as I understand their submission, it is only if the Applicants get access to
the entire CDI file that they are able to make the argument that the Officer
"based [his] decision or order on an erroneous finding of fact that it
made ... without regard for the material before [him]," specifically the CDI file. Without the benefit of seeing the
entire CDI file, of course, it is entirely speculative to argue that the
Officer erred by failing to have regard to it; nevertheless, the Applicants are
prevented from making that argument since they have no idea what else may be
contained in the CDI file. Thus, assuming the entire CDI file was
"before" Officer MacLean during his deliberations, this judicial
review is somewhat frustrated and the decision cannot be fully held to account.
65 The
Ministers take a narrower view. Their position is that what must be included in
the CTR is what the Officer considered and relied on in assessing the HD Mining LMO applications. They say all
of the documents meeting this description were included in the CTR.
66 With
one exception, I agree that documents containing all of the information which
the Officer expressly considered and relied upon were included in the CTR. This
is based on my finding that, on the balance of probabilities, from his reasons
and the cross-examination, as excerpted below, Officer MacLean considered and
relied upon the following from the CDI LMO file:
· a.
The notes of the officer
who assessed the CDI application, which included LMI and information regarding
the CDI LMO application.
· I did review the foreign worker system online notes that were
prepared by the program officer who would assess that file. We would typically
- I mean, in a case like this because they were linked would look at that
previous application in the notes that were recorded, either was labour market
information that was recorded on the foreign worker system as well, and I
reviewed that.
· Cross-examination of Officer MacLean, March 25, 2013, page 11, lines
3-11.
· b.
The CDI LMO
applications.
· It's my recollection that, yes, I think I reviewed the [CDI]
applications.
· Cross-examination of Officer MacLean, March 25, 2013, page 11, lines
18-19.
· c.
The number of TFWs and
the positions CDI requested.
· Q You considered the numbers and the positions that were being
applied for by CDI and compared them to what HD Mining was applying for?
· A Yes.
· Cross-examination of Officer MacLean, March 25, 2013, page 11, lines
25-28.
· d.
The experience requirements
of the requested CDI positions.
· Q You reviewed Dehua LMO applications, and indeed you even compared
experience requirements between Canadian Dehua and HD Mining
applications?
· A ... I would have reviewed the experience requirements, or it would
appear from this [being Exhibit A to his affidavit] that I compared the
experience requirements under those positions.
· Cross-examination of Officer MacLean, March 25, 2013, page 12, lines
24-27, 35-38.
67 Items
a, c, and d above, the LMI, the number of TFWs and the positions CDI requested,
and the experience requirements are contained in the notes of the officer who
prepared the CDI files. These notes were produced in the CTR, at pages 834-922.
68 Item
b above, the CDI LMO applications, are not in the CTR. However, although
Officer MacLean says that he reviewed them, the only information he states that
he got from them was the number of TFWs, the positions CDI requested, and the
experience requirements of the requested CDI positions. All of this information
is also contained in the previous officer's notes at pages 834-922 of the CTR.
While, technically, the LMO applications would have been the source of the
previous officer's information and he only copied it in his notes; it would be
an exceedingly technical objection that the CDI LMO applications were not
produced. That is because there is simply no reason to believe the other
officer copied this relatively straightforward information incorrectly.
69 The
one exception raised by the Applicants, and only in oral reply, was the
documentary source for the information concerning the changing scope of the
Murray River Project between the time CDI and HD Mining submitted their LMO
applications. In particular, Officer MacLean accepted in his Assessment Notes
that the new, higher number of positions requested by HD Mining (201 versus 91)
was "genuine" partly because the descriptions of the project had
changed - CDI's project did not include "the construction of the mine
shaft simultaneously with the construction of the decline." The source of
this information is not clear; however, it may have, and apparently does
emanate from a document in the CDI file which was not disclosed in the CTR.
70 However,
Officer MacLean's opinion that the number of positions was "genuine"
relates to subsection 200(5) of the Regulations, and in his Assessment Notes he specifically distinguishes between
his opinion under that provision and paragraph 203(1)(b), which requires an assessment
of whether "the employment of the foreign national is likely to have a
neutral or positive effect on the labour market in Canada." The Applicants
have framed their application as an attack on Officer MacLean's latter
determination and opinion, not his determination and opinion that the offers of
employment were "genuine" under subsection 200(5). Accordingly, in
line with Pathak, above, the
documents from the CDI file which would seemingly contain the narrower
description of the Murray River Project and which go to the
"genuineness" finding are not relevant and need not have been
disclosed.
71 Thus,
the only real issue remaining is the proper test for relevance and the extent
of the Minister's disclosure obligation. If, as the Ministers argue, consideration
of and reliance on a document establishes relevance, then they have discharged
their responsibility in compiling the CTR since each mention in the Officer's
reasons and cross-examination of information from the CDI file is corroborated
with a document disclosed in the CTR. If, on the other hand, the Applicants are
correct and relevance and thus disclosure is triggered when the Officer decides
to look at a document or it is otherwise placed "before" him, the CTR
is not complete because the Officer had the CDI file before him but that entire
file was not disclosed.
72 There
is no doubt that Officer MacLean did consider at least some of the CDI LMO
file. In his affidavit he states that he "reviewed the [Foreign Worker
System] notes to file" and further states that "I was not the program
officer who assessed and approved the 2011 CDI LMOs but I reviewed the file information and any LMI
research conducted during the assessment of that file for background
information" [emphasis added].
73 In
my view, the decision-maker having reviewed the "file information,"
the file ought to have been included in the CTR. The Ministers' position that
only documents considered and
relied upon by Officer MacLean in assessing the HD Mining LMO applications are
to be included in the CTR is too narrow. Reliance per se is not the determinative factor. What is determinative is what the
decision-maker reviewed, or could have reviewed because it was put before him.
Otherwise, paragraph 18.1(4)(d) of the Federal Courts
Act is neutered: as the Applicants argue, how can an
applicant in most cases successfully argue that a decision-maker based its
decision on a finding of fact that it made "without regard to the material
before it" if an applicant is not entitled to receive all of the material
that was before it. However, mere access to a document is not sufficient; it
must be "before" the decision-maker. Here, the CDI LMO file was
undoubtedly "before" Officer McLean because he sought it out and to
some extent reviewed it. It ought to have been disclosed in full by the
Minister.
74 However,
for the reasons that follow, I am unable to conclude that the omission of the
remainder of the CDI file from the CTR is such that this judicial review
application ought to be allowed on this basis alone.
75 Despite
a vigorous cross-examination, there is no evidence that anything that may be
missing from the CTR was or could have been material to the decision under
review. Indeed, considering that CDI received positive LMOs, it is difficult to
conceive what material information may have been in the CDI files that could
significantly undermine Officer MacLean's decision such that it was
unreasonable, which is the nature of the Applicants' challenge. At best, the
Applicants only speculate that the CDI file might contain contradictory
information regarding the Murray River Project's description. As noted above,
however, that pertains to the opinion that the number of offers of employment
was genuine under subsection 200(5) of the Regulations, which was not challenged in this application as framed by the
Applicants. Other than that speculative possibility, the Applicants did not
propose a single plausible example of the kind of information that might have
been contained in the CDI file that would have shown the Officer's decision was
unreasonable.
76 Thus,
although I strongly agree with the Applicants in general terms that it is
highly problematic that "we don't know what we don't know," so to
speak, and the Ministers cannot be condoned for taking such a narrow view of
disclosure considering the trust that is reposed in them in preparing a
complete and accurate CTR, in the particular circumstances of this case their
failure is not material or significant and I will not grant the application on
that basis alone.
77 Moreover,
I should also note that had I found that there was material evidence omitted or
likely omitted from the CTR, it would have been appropriate, in my view, to
weigh the materiality or likely materiality of the omission against the
prejudice to be suffered by the corporate Respondents if the decision was
quashed for that reason alone. In my view, such a consideration would be
appropriate because the corporate Respondents might suffer prejudice as a
result of actions and decisions of the Ministers over which they have no
control. As parties with no control over the CTR, their interests ought also to
be weighed against the interests of these public-interest applicants.
Over-inclusive Record
78 In
his reasons, Officer MacLean did not refer to the source of the prevailing wage
rates he used to arrive at his conclusion that those offered by HD Mining to
the proposed TFWs would be comparable or better.
79 The
Applicants submit that the CTR is over-inclusive because on cross-examination
Officer MacLean admitted that he could not find any document attached to the HD
Mining files containing information on wage rates; however, he included in the
CTR a document taken from another file - a print-out from the "Working in
Canada" [WiC] website - since the information in this document
"match[ed] the prevailing wage rates that were recorded in [his]
assessment decisions for HD Mining." In his affidavit, Officer MacLean
stated that his usual practice (and to his knowledge the practice of others)
was to "use the wage information available on the [WiC] website,"
and, as a result, "to not bother citing in his assessment notes the source
of prevailing wage rate inquiry."
80 In
my view, there is no merit to the Applicants' complaint that the record is
over-inclusive or in some other way improper because it includes documents from
other sources that the decision-maker referred to and used in coming to his
decision. The record need not be a carbon copy of the administrative file kept
by the decision-maker. Rather, Rule 17(b) of the Immigration
Rules describes that "all
papers relevant to the matter that are in the possession or control of the
tribunal must be produced" [emphasis added].
81 Not
only is there no suggestion the wage rates are not a perfect match between
Officer MacLean's decision and the print-out taken from the different
administrative file, Officer MacLean has sworn that it is his usual practice to
use the wage rates from the WiC website (from which the print-out was made) in
his assessment of temporary foreign workers files. There is no objective reason
to doubt that the website (as reflected in the print-out) was the source of
Officer MacLean's information, and there is every objective reason to believe
it was. I am therefore satisfied that the website was, on a balance of
probabilities, the source of Officer MacLean's information; the print-out was
therefore "relevant to the matter" and in the tribunal's possession
within the meaning of Rule 17(b), and is thus properly before this Court.
3. Officer MacLean's Affidavit
82 The
Applicants submit that portions of Officer MacLean's affidavit should be struck
because they are an attempt to bolster his decision, and also because of the
questionable reliability of his allegations due to the passage of time and the
amount of files he reviews. In particular, they ask this Court to strike
paragraphs 28, 42, 51 - 54, and 57 - 61 of the affidavit.
83 There
is no question that an attempt to bolster one or more of the bases for a
decision by way of affidavit in a judicial review proceeding is impermissible,
and "smacks of an after-the-fact attempt to bootstrap [a] decision:" Stemijon Investments Ltd v Canada (Attorney General), 2011 FCA 299 at para 41.
84 Paragraph
28 of the affidavit states only "I did not deem it necessary to request or
review the resumes ["from selected Canadian candidates and all resumes
received for the project"]." I agree with the submission of the
Applicants that this statement "is an attempt to bolster his failure to
provide any rationale for not requesting those resumes." Accordingly, it
is struck from the record.
85 Paragraphs
42 and 51-54 concern the source of the information for the prevailing wage
rates - the WiC website. These paragraphs do not add to the bases for the
decision, but rather provide the necessary context to enable the Court to
determine what was actually the
basis for the decision. Given that there is no dispute that the wages are a
perfect match between the decision and the WiC print-out, as noted previously,
there is every reason to believe that the prevailing wage rates were in fact
determined from the WiC website, as the Officer swears.
86 Lastly,
paragraph 57-61 contain, in the Applicants' submission, "attempts to
provide further explanation for why [Officer MacLean] granted positive LMOs to
HD Mining in light of his noted-concerns with their LMO application in the Bulk
Request Assessment and Recommendation" and to "bolster his reasons
pertaining to HD Mining's advertising efforts." In my view, Officer
MacLean only explains the nature and intended audience of the Bulk Request
Assessment and Recommendation form at paragraphs 57-59. At paragraph 60, he
reiterates what is already contained in the reasons for his decision, namely,
that he "was not aware of any TFWP policy imposing any requirement that
specific languages must be spoken by foreign nationals." At paragraph 61,
on the other hand, Officer MacLean does offer a supplement to his reasons by
stating that minor variances in job descriptions on advertisements are fairly
normal. Accordingly, paragraph 61 is struck from the record.
4. Was the Nature of the Work Misrepresented?
87 The
Applicants submit that HD Mining misrepresented the nature of the work in its
LMO applications, because in these it stated that it would be using long-wall
mining when in the documents it filed with the British Columbia Ministry in
relation to the Murray River Project it stated that it would be using the
traditional room and pillar method. The Applicants submit that "it is a
breach of natural justice to allow a decision to stand when the
[decision-maker] acted upon false information provided by the applicant"
and says that fundamental justice demands the Court's intervention.
88 Paragraph
18.1(4)(e) of the Federal Courts Act specifically provides that the Court may grant relief if satisfied
that a decision-maker "acted ... by reason of fraud or perjured
evidence." No such relief is requested in the Application for Leave and
Judicial Review, nor is there any allegation in it that HD Mining was engaged
in misrepresentation. The Applicants say this ground was not raised initially
because they were unaware of the alleged misrepresentation until they obtained
the documents from the BC government after this application was commenced, that
they raised the issue as soon as possible, and that the Court should exercise
its discretion to consider it. When asked why paragraph 18.1(4)(e) had not been
pled or relied upon even at this late stage, counsel responded: "we are
aware of the difference and chose to plead misrepresentation and not to plead
fraud." I am hard-pressed to characterize the Applicants' allegation of the
conduct of HD Mining as one of either innocent or negligent misrepresentation,
rather than fraudulent misrepresentation. Their allegation was put by counsel
to be the following:
· [W]hat HD Mining is saying is, "Look, we're using this highly
specialized equipment that we have to bring in from China, and this has never
been done anywhere in Canada". And that's not, My Lord, what the documents
clearly indicate. And these are HD Mining's documents. These are the documents
that they submitted for the purpose of obtaining the permit that they needed
from the provincial government to proceed with this project.
Given this characterization, the Applicants ought
to have sought an amendment to their application to plead paragraph 18.1(4)(e)
to have specifically put HD Mining on notice of its allegation, rather than
stated it, as it did for the first time, in its Further Memorandum.
89 In
any event, as the affidavits of Curtis Harold and Douglas Sweeney have been
ruled inadmissible, there is no evidence before the Court on which a finding
could be made that HD Mining made any misrepresentation as to the type of
mining that it would be doing at the Murray River Project.
90 Further,
even if these affidavits were in evidence, they would have been given very
little weight for the reasons set out in ruling them inadmissible, namely their
hearsay character, their incompleteness, and concerns regarding the accuracy of
the information contained therein. Misrepresentation, like fraud, requires
clear, cogent, and convincing evidence if it is to be found. The evidence
tendered by the Applicants falls well short of that high standard.
5. Standard of Review
91 The
parties are in agreement that the standard of review of the officer's decision
is reasonableness.
6. Is There a Reviewable Error?
92 The
Applicants submit that Officer MacLean's decision ought to be set aside on
either of two broad bases.
93 First,
it is submitted that "the officer wasn't really making the decision, or at
least his latitude of discretion was minimized to a significant extent."
It is argued that Officer MacLean's discretion was so fettered because of the
supervision and direction he received.
94 Second,
it is submitted that Officer MacLean made a number of unreasonable findings and
reached unreasonable conclusions when conducting his assessment. In this
respect the Applicants described a number of areas of concern without
specifically organizing them with reference to the factors an officer is
required to consider under subsection 203(3) of the Regulations. They were identified in oral submissions as "a variety of
issues, including whether the officer reversed the onus of proof; that
excessive requirements were imposed for the jobs; that the assessment of
prevailing wage rates was made without proper foundation, and is unreasonable;
the impact of the requirement to speak Mandarin; and a lack of a proper plan to
transition to Canadians; deficient advertising to recruit Canadians; and the
fact that there were qualified Canadians who applied but were not hired."
As much as is possible, I propose to deal with these concerns with reference to
the six specific factors the officer was required to consider under subsection
203(3) of the Regulations because
ultimately the question that is to be addressed is the reasonableness of the
officer's opinion under paragraph 203(1)(b) of the Regulations that "the employment of the foreign national is likely to have
a neutral or positive effect on the labour market in Canada" based on
these six factors.
(1) Did the Officer Fetter His Discretion?
95 The
Court of Appeal in Stemijon,
above, at paragraph 24 wrote: "A decision that is the product of a
fettered discretion must per se
be unreasonable." The Applicants submit that Officer MacLean's decision is
unreasonable because he fettered his discretion because he was "closely
monitored and directed in his processing of the file" and because
"absent approval of the managers, the Officer would not have given
approval."
96 Generally,
when a decision-maker is given discretion by law, as Officer MacLean was, he or
she cannot bind him or herself in the way that discretion will be exercised by
internal policies or by obligation to others. However, this is not to say that
such a decision-maker cannot have regard to internal policies as to how that
discretion ought to be exercised, or seek input from others.
Fettering By Obligation to Others
97 The
Applicants, in their Further Memorandum, particularize their submission that
Officer MacLean fettered his discretion by obligation to others as follows:
· (i)
"Officer MacLean
was being closely monitored and directed in his processing of the file by numerous
managers, including by the most senior manager of whom he was aware for the
Western Territories Region, as well as by officials from Citizenship and
Immigration Canada and by officials of the Province of British
Columbia;"
· (ii)
He was asked to expedite
the file and there was a "request that the Officer treat the recruitment
done by Canadian Dehua for the same project a year earlier, as valid for HD
Mining in its 2012 LMO applications," contrary to HRSDC policy; and
· (iii)
Officer MacLean prepared
a Bulk Request Assessment and Recommendation form dated April 23, 2012, and
sent it to "all 6 managers who were overseeing this file" and he
agreed in cross-examination "that he would not approve the LMOs without
approval of the managers, which is why the Bulk Request form was initially
composed outside of the computer system normally used."
98 The
Ministers submit that the Applicants' "interpretation of the record
presents an entirely unrealistic view of administrative operations with respect
to labour market opinions in general" and is based on their speculation
that there were "ulterior motives" behind every interaction between
Officer MacLean and others.
99 In
my view, the record simply does not support that Officer MacLean fettered his
discretion in any of the ways that have been alleged.
Closely Monitored and Directed
100 I
begin by observing that simply because one's work is being monitored does not
necessarily lead to a conclusion that one's discretion is thereby fettered.
Virtually everyone's work is monitored; some more closely than others.
101 Officer
MacLean acknowledged that the HD Mining LMO file was not a typical LMO file. As
such, it is hardly surprising that his supervisor and superiors would be
interested in how his assessment was progressing:
· Q Do you agree with me that this was a significant file for the Vancouver
office?
· A I would agree with you in the sense that it was a sensitive - there
was some sensitivity in - regarding the file. It was the numbers - there was a
significant number of temporary foreign workers that were being requested at
one time. The nature of the project itself meant that it was a complex file. So
- and that's what I would have - I would agree to that statement.
· Cross-examination of Officer MacLean, March 27, 2013, page 39
102 He
also acknowledged that a number of employees of HRSDC were interested in the
file and asked to be kept informed of its progress, and he did so. However,
there is no evidence that any of those persons directed Officer MacLean do anything other than to devote his time
exclusively to the application and to expedite it.
Directed to Use CDI Recruitment Information
103 I
find that there is no evidence that Officer MacLean was ever directed to use or
rely on any of the materials relating to the former CDI LMO application. He was
advised that he could use it, but in the end it was his decision alone whether
he would and to what extent. This is evident from his diary note of April 11,
2012, in which he writes of his conversation with Dale Gill, the team leader
who had assigned the file to him:
· Apr 11 spoke with Dale, she advised that received email? from Lisa
Smith, advising that CIC were working on WP, requested that we expedite the
file, Dale also mentioned possibly accepting old recruitment. Follow up on this and see if any other
info communicated. Responded that will work exclusively on this file but not
able to provide completion date at this time. [emphasis added]
In my view, this entry shows no direction to
Officer MacLean regarding the CDI recruitment information, merely a suggestion
that he consider accepting it. The record shows that he did consider the CDI
file and found some discrepancies between the positions and duties stated
therein and those requested by HD Mining. His diary entries also show that he
decided that he could not and would not rely exclusively on CDI recruitment
materials:
· Advised Lisa that was advised by Dale that could consider past
recruitment conducted by previous ER but in light of
additional #s being requested would need to consider recent recruitment in the
decision. [emphasis added]
104 In
short, although a superior informed him that he "could" consider the
CDI recruitment file, he was not directed to do so. Further, given that the
first HD Mining application was largely a repeat of the former CDI application
that had already been assessed, it may well be that he would have considered
recruitment information in the CDI file in any event. I am satisfied that the
record shows that Officer MacLean made his own decision as to what aspects of
the CDI file he would consider, and his discretion was not fettered by his
supervisors in this respect.
Required Managerial Approval
105 Officer
MacLean sent an email on April 19, 2012, to his team leader, Michael Au, the
team leader in charge of the file, copied to Dale Gill, Kerry O'Neill and Lisa
Smith, stating: "I will do my best to complete these recommendations by
Friday and refer them thru my team leader for comment/guidance, etc." In
fact, it was only on the following Monday that Officer MacLean finalized the
assessments and by email dated April 23, 2012, he forwarded his completed Bulk
Request Assessment and Recommendation form "to summarize the ER request
and officer assessment and concerns" to Michael Au, Janet Walsh and Howard
Jones and continued saying that "any guidance, objections, etc. would be
appreciated."
106 Officer
MacLean in his affidavit states that a Bulk Request Assessment and
Recommendation form is sent to an officer's supervisor when the officer
foresees issuing a positive LMO involving more than 50 positions in a specific
occupation. He states that this form:
· ... allows program officers to bring to the attention of the
management/supervisory team any areas of concern, or any high-profile or
sensitive cases. Based on these forms a supervisor may decide that a particular
file merits the involvement of a business consultant or may identify concerns
with the program officer's recommendation. Such concerns could trigger a
discussion with the recommending program officer, and potential
reconsideration. However, the program officer remains
the final decision-maker even where a Bulk Request Assessment and
Recommendation is completed." [emphasis
added]
107 In
this case, the record shows that there were no comments at all regarding
Officer MacLean's assessment or the concerns he raised. His team leader said in
an email, "you have the go ahead from the two managers to approve these
applications" which was, in fact, exactly what Officer MacLean indicated
was his assessment - that they be approved. The LMOs were thus approved and
issued by Officer MacLean. Given that there was no substantive feed-back from
the supervisory personnel, it is shocking to suggest that the officer's
discretion was fettered. The decisions were rendered exactly as he had written
them.
Summary
108 The
position of the Applicants on the fettering of Officer MacLean's discretion by
his superiors amounts to a submission that these superiors wanted positive LMOs
to issue and were directing and controlling him to achieve that desired result.
There is nothing in the record that establishes that. The Applicants'
submissions are based on mere speculation and conjecture.
· (2) Was the Officer's Assessment Unreasonable?
109 An
officer's opinion under paragraph 203(1)(b) of the Regulations that "the employment of the foreign national is likely to have
a neutral or positive effect on the labour market in Canada" shall,
according to subsection 203(3), be based on the following six factors:
· (a)
whether the employment
of the foreign national is likely to result in direct job creation or job
retention for Canadian citizens or permanent residents;
· (b)
whether the employment
of the foreign national is likely to result in the creation or transfer of
skills and knowledge for the benefit of Canadian citizens or permanent
residents;
· (c)
whether the employment
of the foreign national is likely to fill a labour shortage;
· (d)
whether the wages
offered to the foreign national are consistent with the prevailing wage rate
for the occupation and whether the working conditions meet generally accepted
Canadian standards;
· (e)
whether the employer has
made, or has agreed to make, reasonable efforts to hire or train Canadian
citizens or permanent residents; and
· (f)
whether the employment
of the foreign national is likely to adversely affect the settlement of any
labour dispute in progress or the employment of any person involved in the
dispute.
As noted earlier, I will deal with the various
issues raised by the Applicants within the context of these six factors, to the
extent that this can be done in an orderly way.
· 203(3)(a) "whether the employment of the foreign national is
likely to result in direct job creation or job retention for Canadian citizens
or permanent residents"
110 Officer
MacLean makes an identical assessment on job creation for each of the LMO
decisions, as follows:
· Information provided with the LMO refers to creation of 500 on site
jobs and creation of 1000 indirect jobs offsite. ER has confirmed immediate
onsite staffing needs of approximately 294 for completion of construction/bulk
sampling phase. ER has offered employment to 30 Canadian workers, expects to
hire additional 56 Canadians based on ongoing recruitment efforts. ER is
requesting 201 FW. ER expects that the total onsite employment will increase to
approximately 500 when mine reaches full production in 2-3 years. Thus
approximately an additional 200 jobs will [be] created, the majority of those
will be concentrated in miner and support service worker occupations.
111 The
Applicants do not raise any issues that directly go to this factor.
112 The
information in the officer's Assessment Notes is consistent with the cover
letter sent to HRSDC with the LMO applications, and with telephone
conversations between the officer and HD Mining on April 13 and 20, 2012. It is
also consistent with his summary in the Bulk Request Assessment and
Recommendation form. I agree with the submission of the Ministers that this is
a factor favouring a positive LMO.
· 203(3)(b) "whether the employment of the foreign national is
likely to result in the creation or transfer of skills and knowledge for the
benefit of Canadian citizens or permanent residents"
113 The
Applicants submit that Officer MacLean presumed that this factor was met, or in
other words favoured HD Mining, absent the breach of some policy or some other
reason negating that positive presumption. As a result, they say, Officer
MacLean did not find that the factor truly favoured HD Mining in a substantive
sense; only that there were no particular policies or reasons which
disqualified it. At various points in their submissions, the Applicants
referred to this error as the officer "reversing the onus of proof."
114 The
following excerpt from the Applicants' Memorandum of Fact and Law in support of
Leave particularizes this submission:
· Thus, rather than require HD Mining to show, for instance, that
having Mandarin as the predominant language in the mine would allow for the
recruitment, training, or retention of Canadians, the Officer found instead
that there was no policy which would allow for a refusal.
115 The
Applicants, in their oral submissions, also characterized this concern as the
officer fettering his discretion:
· And in our submission the officer clearly had a discretion to refuse
the LMOs on that basis. On the basis that the Mandarin in the work place would
impede the transfer of work to Canadians and the hiring and retention of
Canadians. And particularly given his concern, which is expressed immediately
thereafter about there being little substantive information being provided
about the training, and about concerns about the length of time the employer
wished to take to transition to a Canadian workforce. But the officer clearly
understands that he is unable to exercise that discretion because of an absence
of any specific temporary foreign worker policy, which would allow for a
refusal based on workplace language. And in our submissions that's a clear
fettering of his discretion. He could refuse based on the discretion that he
has. The officer seems to understand that he can't refuse unless there exists a
specific policy allowing for a refusal.
116 The
concerns that Officer MacLean had regarding the Mandarin language requirement
for the TFWs is found both in his Bulk Request Assessment and Recommendation
form and in his Assessment Notes. In the former, he writes:
· Lack of requirement for English for FWs in underground mining
occupations, raises some concerns regarding the employer's ability to
attract/train and transition to Canadian workers. The employer has stated that
English language training will be provided, that interpreters and English
speaking foremen will facilitate on the job training and transfer of skills to
Canadians. Still it is reasonable to question ... how successful the employer
will be in attracting, training or retaining Canadians, while the language of
mine operation is predominantly Mandarin. However, I am
unaware of any TWFP policy that would allow for a refusal based on workplace
language. [emphasis added]
In his Assessment Notes for each LMO, he writes:
· Transfer of skills: concerns regarding the ability of the employer to
deliver transfer of skills due to FW not being proficient in English. ER
asserts that on the job training and skill/ knowledge/experience transfer will
be facilitated by English speaking foreman and FW miners/support and service
workers thru use of interpreters attached to the work units. ... Transition to
Canadian workforce: information attached to the LMO and confirmed by the
employer ER, asserts change over will occur at 10% per year over the 1st 10
years a potentially 40 year mine life. Again no substantive information
provided as how ER will meet this goal. Decision: LMO has met program
requirements for genuineness under IRPA 200(5) and IRPA 203(3), wages, working
conditions, recruitment, no labour dispute. Job creation and transfer of skills
were also considered as benefits to Canada, notwithstanding officers comments
recorded above. Bulk Request Assessment and Recommendation 23Apr forwarded bulk
request assessment and recommendation to team leader and local manager(s),
noting concerns, but recommending confirmation for all LMO's requested. A 2 year duration is appropriate as it will cover off the duration
of the bulk sampling project, and allow for a subsequent review of the
employers progress in hiring and training of Canadians.
[emphasis added]
117 Officer
MacLean clearly had concerns that non-English speaking TFWs would have a
negative impact on the creation or transfer of skills and knowledge to
Canadians. HD Mining tried to overcome these concerns by pointing out that
interpreters would be used and that foremen would be English and Mandarin
speaking. They also provided some limited information about training at local
educational institutions and had attached to their applications a long-term
plan for the training of and transition to a one hundred percent Canadian
workforce, which I also discuss further below in relation to the factor at
paragraph 203(3)(e). These measures went some way to address the officer's
concerns but, as he writes: "Still it is reasonable to question ... how successful the employer will be in
attracting, training or retaining Canadians, while the language of mine
operation is predominantly Mandarin" [emphasis added]. It is relevant to
note that at this point in his analysis, the officer has not concluded that the
employer would have no success
in attracting, training, and retraining Canadians; rather, he concludes that
the degree of its success is
open to question. This finding is made just before the statement the Applicants
attack - "I am unaware of any TFWP policy that would allow for a refusal
based on workplace language." The Applicants interpret this statement as
meaning that since there is no such policy, Officer MacLean, who would
otherwise disallow the application, feels that he must weigh this factor in
favour of the applicant. I do not share that interpretation.
118 I
firstly note that notwithstanding the extensive cross-examination of Officer
MacLean by the Applicants, I cannot find that he was specifically asked what he
meant by the impugned comment. In any event, as I see it, in the
above-questioned passage, Officer MacLean expresses that he has concerns that
the transfer of skills and work to Canadians will be limited by the Mandarin
language of the workplace, but accepts that there will be some skills transfer.
As such, this factor weighs in the applicant's favour, even if only slightly,
and Officer MacLean notes that there is no policy that would dictate that he
say that it does not weigh in its favour (and reject the application). That is
not a reversal of onus as alleged; it is a statement of fact.
119 Indeed,
Officer MacLean, quite responsibly in my view, notes his concerns in this
regard so that another officer considering a subsequent LMO application from HD
Mining will inquire into and assess the success it has had in skills transfer
to Canadians notwithstanding the initial Mandarin language of the workplace:
· Q.
But what persisted as a
concern was the impact that a predominantly Mandarin workplace language would
have on the ability of HD Mining to recruit and train Canadian workers;
correct?
· A.
Well, I would say that
that was a concern, and I would say that this is in regards to, you know, my
style of note-taking, my style in terms of writing the decision. Some of it in
terms of the concern was that any subsequent labour market opinions it was more
of a going-forward period. They had met the program requirements. I was
confirming those applications. I had concerns in regards to transitioning
because of language and that language may present some barriers. The employer
had provided what steps they had taken to address that.
·
Those concerns, Mr. Clements,
were there in the sense that as going forward if I am - and as is my practice
when I'm confirming an application, if I have some concerns that would not
cause a refusal of an application, then I'll note them, and that the next
officer that may assess an application from that company can review those notes
to say this previous officer had some concerns regarding language. So that may
form part of the questions that they would ask the employer in terms of a
subsequent application. So how is it working in terms of transitioning? How is
it working in regards to workplace language? That's how I would categorize.
When I tend to write concerns, they would mostly be going forward. In other
words, that somebody in subsequent dealings with the company may review that
and bring those back up.
· Cross-examination of Officer MacLean, March 25, 2013, pages
32-33.
120 On
the whole, therefore, I do not find that Officer MacLean's assessment of this
factor is unreasonable. He found this factor weighed in HD Mining's favour, if
only slightly, based on their transition plan, the discussions they had had
with a local training institution, and the use of English-speaking foremen, but
nevertheless had some concerns about this plan and about how the use of
Mandarin would affect HD Mining's ability to attract and train Canadians. This
finding is intelligible and falls within the range of possible acceptable
outcomes based on the material that was before the officer. Moreover, as I
noted above, Officer MacLean expressing his concerns in his reasons was meant
to be a useful tool for the next officer to review an LMO application from HD
Mining, which was to occur within roughly two years. In my view, this Court
would be sending the wrong message and it would arguably have a chilling effect
on administrative reasons to hold, in effect, that an officer cannot express
his or her concerns but nevertheless make a positive determination if, on
balance, that is warranted.
203(3)(c) "whether the employment of the
foreign
national is likely to fill a labour shortage"
121 Officer
MacLean makes an identical assessment on the issue of a labour shortage for
each of the LMO decisions, as follows:
· Available LMI reviewed, speaks to challenges in finding workers in
this industry due to growth of industry and aging workforce. Mining Industry
Human Resources Council (MiHR) report on Labour Market Demand Projects dated
Jun 2008, details the expected mining labour force shortage for British Columbia
over period 2008-2017 and refers to labour shortages in this industry across
Canada. See also LMI research completed by another officer for related employer
SF 7752445 which supports ongoing labour shortages in industry and specifically
underground coal mining [i.e. the CDI application].
122 The
Applicants acknowledge that there is a shortage of some skilled underground
mine workers in Canada but say that not all of the TFW positions are skilled
and face shortages. However, they take no issue with Officer MacLean's reliance
on the documentary evidence, which he understood as establishing a shortage
across all mining positions, or point to any part of it as supporting their
assertion. Rather, the only issue they raise that is arguably relevant to the
finding of a labour shortage is that of the "excessive" job
requirements for the lower skilled positions. In particular, they submit that
HD Mining sought excessive qualifications for these positions from Canadian
applicants and that this artificially depressed the number of qualified
Canadians who could apply and were qualified, which gives the impression that
there was a labour shortage for the lower skilled positions, when in fact this may not be the case. The Applicants'
submission that the requirements were "excessive" is based on their
interpretation of NOC 8411. They submit that rather than requiring HD Mining to
establish that its requirements were reasonable, the officer placed the onus on
the Minister to show that they were not:
· Level of experience required may vary depending on type of mining and
specific job being performed. Insufficient information
to support a refusal based on job requirements being excessive. [emphasis added]
123 Taken
in isolation it may appear that Officer MacLean is placing the burden on the
Minister to establish that the job requirements are excessive; however, when
read in context, this is not the case. The entire passage from which the
Applicants have extracted the impugned sentence is as follows:
· Job offer/requirements; duties and requirements, minimum 3 years
underground coal mining experience are related to the specific worker job
title. ER rationale for job requirements, performance of these jobs requires
this level of experience, ensure safety of workers, initial construction phase
of mine requires experienced workers. Unable to locate any standardized job
description for any of these job offers. Based on information reviewed in
assessment of file would appear that experience, knowledge, can be specific to
type of mining, underground versus open pit, hard rock versus soft rock, etc.
and not necessarily any natural mobility between open pit and underground
mining. Level of experience required may vary depending on type of mining and
specific job being performed. Insufficient information to support as refusal
based on job requirements being excessive.
124 In
my view, in this passage Officer MacLean is simply noting that his research has
shown that job requirements vary in mining between underground and open pit
mining, and hard rock and soft rock mining; that the employer has provided an
explanation for the requirements it placed on these jobs, which is that
experienced workers during the construction phase of the project will help
ensure the safety of workers; and that, in light of this, he has no reason to
find that the requirements HD Mining is requiring of its workers are excessive.
He is not, in my view, doing anything more than saying that although they are
higher than the NOC standard, explanations have been offered and he has no
reason to find otherwise. This is not a reversal of onus. Moreover, this is
consistent with his evidence on cross-examination where he states that the NOC
requirements are used by program officers as a guide and they do not require that an applicant provides a mirror image of
the NOC classification: See Cross-examination of Officer MacLean, March 25,
2013, pages 26-27.
125 More
importantly, the Applicants have not accurately focused on what is contained in
NOC 8411. NOC 8411 is a Skill Level C classification. The Applicants note that
the NOC guide provides that a job will be at Skill Level C if the education and
training is either "completion of secondary school and some short-duration
courses or training specific to the occupation or some secondary school education, with up to two years of on-the-job
training, training courses or specific work experience." HD Mining's
requirements for the NOC 8411 classified positions were a secondary school
diploma and three years related underground mining experience. Thus, they
argue, HD Mining's requirements were far too high.
126 However,
what the Applicants fail to address is that Skill Level C covers a variety of
unskilled and low skilled positions. NOC 8411, which is specific to
"Underground mine service and support workers," lists the following
under employment requirements:
· *
"Completion of
secondary school is usually required.
· *
"Previous formal
training of up to six weeks followed by periods of on-the-job training as a helper
or in support occupations is usually required.
· *
"Previous
experience as a mine labourer is usually required.
· *
"May be certified
in the basic common core program in Ontario.
· *
"Company licensing
or certification is often required for occupations in this unit
group."
127 When
the requirements sought by HD Mining are compared to these more specific
education and training requirements contained specifically in NOC 8411 (and not
merely the guidelines for Skill Level C positions generally), one sees no real
deviation at all: HD Mining required a secondary school diploma and previous,
related experience, as is "usually required" according to NOC 8411.
The officer's assessment and approach did not therefore unreasonably support
the conclusion, corroborated by the available labour market research compiled
by him and the previous officer, that there was a labour shortage for these
positions. There is simply no merit to the Applicants' argument that the job
requirements for the lower skilled positions were "excessive."
· 203(3)(d) "whether the wages offered to the foreign national
are consistent with the prevailing wage rate for the occupation and whether the
working conditions meet generally accepted Canadian standards"
128 The
Applicants make two submissions. First, that Officer MacLean in his reasons
"offers no source or any other basis for his determination of prevailing
wage rates" and second, if it is accepted that he looked to the WiC
website run by the Government of Canada, he failed to follow HRSDC policy by
not looking at various sources.
129 HRSDC's
Temporary Foreign Worker Program Manual, section 3.5.3.4, provides that
officers are to "review the wages that an employer offers and compare them
to wages paid to Canadians and permanent residents in the same occupation and
geographical area based on objective LMI from StatisCan, HRSDC/Service Canada,
provincial ministries, and other reliable sources."
130 Officer
MacLean looked only at the WiC website for information. At paragraph 46 of his
affidavit, he attests that "It is my usual practice - and as far as I am
aware, that of all program officers - to use the same process for assessing
wage information: namely, they use the wage information available on the WiC
website." In his cross-examination on March 25, 2013, he stated (page
114): "My understanding of the program requirements were that prevailing
wage was defined as the average wage in a geographic region and that we were at
that time using Working in Canada as a single source of prevailing wage rate
inquiry. ... That's how I conducted my wage assessment."
131 I
have dealt above with the evidence of the WiC website print-out and found that
the source of Officer MacLean's prevailing wage rate information was the WiC
website. Although he fails to state this in the Assessment Notes, it does not
follow that he had no source for this information. As also noted previously,
LMO decisions are administrative decisions and the duty to give reasons is at
the low end of the scale. Accordingly, his failure to state the source, given
the evidence before the Court, is not a reason to set aside his decision.
132 The
alternative submission of the Applicants is that the officer erred in failing
to follow the HRSDC policy quoted above and consider multiple sources of wage
information. In particular, collective agreements in place at two mines close
to the Murray River Project show, so argue the Applicants, that the wage
information on the WiC site is not accurate, and Officer MacLean should have
looked at them.
133 Paragraph
18.1(4)(d) of the Federal Courts Act provides that the Court may grant relief in this judicial review if
it is satisfied that the officer "based [his] decision or order on an
erroneous finding of fact that [he] made in a perverse or capricious manner or
without regard for the material before [him]."
134 Based
on the information that was "before [him]," the WiC website
information, there can be no dispute that his decision on the prevailing wage
rate was reasonable - the wages offered by HD Mining exceeded the prevailing
wage rate indicated on that website. That satisfies the second clause in
paragraph 18.1(4)(d). Thus, the issue raised by the Applicants about the wages
paid at the two unionized mines in close proximity to the Murray River Project
must go to whether Officer MacLean made his finding "in a perverse or
capricious manner."
135 While
it is true that Officer MacLean was aware of these two mining operations that
were in close proximity to the Murray River Project, I am unable to agree with
the Applicants that he ought to have sought wage information from them and that
his failure to do so meant his wage rate finding was made in either a perverse
or capricious manner. First, Officer MacLean testified that he took
"prevailing wage rate" to mean the average wages for the occupation,
which is not an unreasonable interpretation. As such he would have been aware
that there were some who paid higher and some who paid lower wages than shown
on the WiC website. Even if he had seen the wages paid at the two nearby mines,
the fact that these two unionized operations paid higher is thus not
necessarily significant to the "prevailing" rate. On the contrary,
choosing data ad hoc and
anecdotally might very well have resulted in a less reliable finding. Officer
MacLean had no reason to question the accuracy of the WiC website, which, as
the Respondent Ministers point out, is a government website compiled from
various objective sources. Accordingly, although I admitted as evidence in this
application the wage rate information taken from these collective agreements
despite the fact that they were not in the record before Officer MacLean, they
do not demonstrate that he made his wage rate finding in a perverse or
capricious manner. In short, the Applicants have raised no reviewable error in
Officer MacLean's wage rate determination.
· 203(3)(e) "whether the employer has made, or has agreed to
make, reasonable efforts to hire or train Canadian citizens or permanent
residents"
136 The
Applicants submit that the advertising for these 201 employees was not properly
done. They submit that the raised qualifications would have prevented some
Canadians from being qualified. I have already addressed, above, the
qualifications and found them to be reasonable and in keeping with what would
be expected in the industry, based on NOC 8411.
137 The
Applicants further submit that HD Mining's failure to advertise all positions
within the 3 month window as required by HRSDC policy also prevented Canadians
from applying. Again, I have previously dealt with the decision of the officer
not to require reposting and his reliance on CDI's recruitment efforts as well
as his experience and knowledge. The officer is entitled to use his discretion
when examining the advertising an applicant has made both in terms of its
timing and accuracy. Officer MacLean did so and, as he stated, was looking at
whether he felt that "any different outcome would arise" if the
recruitment was done differently. There is nothing on the record that
establishes that he was wrong in his assessment that sufficient efforts had
been made to recruit Canadians, either when he made that assessment or in
hindsight. As a result, in the circumstances of this case and to invoke a
concept otherwise readily invoked by the Applicants, it might very well have
been a "fettering of discretion" to strictly follow HRSDC recruitment
policies, i.e. if the information otherwise indicated that HD Mining's
recruitment efforts were "reasonable."
138 In
my view, the Applicants have examined the rather meticulous analysis of Officer
MacLean regarding the deficiencies in the advertising done by HD Mining, and
argue that the decisions he made were unreasonable only because a contrary view
could have been taken. I don't doubt that another officer may have taken the
view that HD Mining had to re-advertise for those few positions where the job
title was slightly misstated, or where the advertising was slightly
stale-dated, but that does not make this officer's decision to the contrary
unreasonable. As the Supreme Court said regarding the reasonableness standard
of review in Khosa v Canada (Minister of Citizenship
& Immigration), 2009 SCC 12 at para 59: "There
might be more than one reasonable outcome ... as long as the process and the
outcome fit comfortably with the principles of justification, transparency and
intelligibility, it is not open to a reviewing court to substitute its own view
of a preferable outcome."
139 The
Applicants also point to a comment made in the Bulk Request Assessment and
Recommendation form by Officer MacLean as evidence that his determination under
this factor was unreasonable:
· Transition to a Canadian workforce: employer estimates that the
transition to a Canadian workforce will occur at 10% per year, but has provided
little substantive details how this goal will be achieved."
140 The
transition plan in the LMO application at page 289 of the CTR reveals that the
transition to a Canadian workforce involves a "multi-year training process
during which local Canadian workers would be trained in the skills required for
this method of mining [i.e. long-wall mining]." It illustrates that
proposed transition by a chart which shows that the 10% per year transition to
Canadians will begin only after the second year of the mine's full operation.
It does not happen at all during the sampling phase that was at issue for this
officer. Given that his positive LMO will expire before there is to be any
transition to a Canadian workforce, it was reasonable for the officer, in my
view, not to require more of HD Mining in terms of specifics. In order to
continue with their TFW workforce, if the mine goes into full production, HD
Mining will have to establish to the satisfaction of another officer that they
do have a workable and reasonable transition plan. Accordingly, I am unable to
agree with the Applicants that Officer MacLean's issuance of the positive LMOs
in light of his concerns about a transition plan was unreasonable.
141 The
Applicants also submit that Officer MacLean ought to have been suspicious of
the recruitment efforts in Canada given the few Canadians hired or interviewed,
despite HD Mining having received many resumes. The officer did not have the
resumes but could have requested them. The Applicants' own analysis shows, they
say, that a number of these resumes were from Canadians who were "prima facie qualified" to be hired by HD
Mining.
142 The
program officer is not a human resources specialist or a recruitment officer. I
would be very surprised if a review of the resumes would have been any more
meaningful to the officer than to the Court. Frankly, an employer must be given
some latitude in its hiring even within the TFWP. The real question is whether
there was anything before the officer from which he should reasonably have
concluded that the applicant had failed to make reasonable efforts to hire
Canadians. In approaching that question, one must keep in mind that there was a
labour shortage in the mining industry, that CDI's application had been
approved only 12 months earlier for the same project, and that CDI and HD
Mining both did recruitment. The Applicants submission is that the few persons
interviewed from those who applied ought to have raised the officer's suspicion
that the recruitment was not genuine. I find nothing to support that view given
the background described and particularly given that the decision was being
made by an experienced program officer. Further, despite the submissions made
by counsel, I do not share the view that the low number of interviews alone
would have reasonably raised a concern that the recruitment process was not
genuine or sincere.
· 203(3)(f) "whether the employment of the foreign national is
likely to adversely affect the settlement of any labour dispute in progress or
the employment of any person involved in the dispute"
143 There
is no labour dispute at the Murray River Project. This factor is irrelevant.
Summary
144 The
officer did not fetter his discretion when assessing the LMO application from
HD Mining, or make any unreasonable assessment when considering the factors set
out in subsection 203(3) of the Regulations. Further, as counsel for the Applicants conceded, it is not necessary
that an applicant meet every one of the six factors listed in subsection
203(3), the decision-maker must examine and assess each and then perform a
weighing exercise to decide whether the LMO will issue. This is exactly what
Officer MacLean did. As he notes in the Bulk Request Assessment and Recommendation
form, even if the job creation and skill transfer factors did not weigh in
favour of a positive opinion, all of the others did and the LMO would still
issue.
145 For
these reasons, the application will be dismissed.
CERTIFIED QUESTIONS
146 The
parties were given an opportunity to propose a question of general importance
for certification; only HD Mining responded. It proposed the following
questions:
· 1.
Does the Federal Court
of Canada [sic ], as a statutory
court, have the authority to grant an Applicant who is not directly affected by
the Tribunal's decision public interest standing on judicial review under
section 18.1(1) of the Federal Courts Act, which limits applications for judicial review to the Attorney
General and persons "directly affected."
· 2.
If a Tribunal's
Certified Tribunal Record (CTR) is found to have any omissions, is the ability
of the court to quash the underlying decision any different in cases where the
applicant is one to whom the decision relates as opposed to cases where the
applicant is challenging approvals issued to a third party?
· 3.
Can the Federal Court of
Canada [sic ] on judicial review
quash work visas or authorizations under the Immigration
and Refugee Protection Act on the basis of an impugned labour
market opinion in circumstances where the holders of such work visas or
authorizations have not been made Respondents or otherwise been provided notice
of and an opportunity to participate in the judicial review?
· 4.
Can the Federal Court
rely on evidence that is not in the Certified Tribunal Record to assess the
reasonableness of a statutory decision maker's decision?
· 5.
Is a public interest
applicant subject to a different test on the extension of time for seeking leave
for judicial review than a person directly affected?
· 6.
Is the fact an applicant
is seeking litigation funding from non-parties a "reasonable
explanation" for the delay in filing a party's application for leave for
judicial review and a proper basis for a court to grant an extension of
time?
· 7.
In the case of a
corporate entity, can an extension of time for filing an application for leave
for judicial review be granted upon the applicants asserted lack of early
knowledge of the decision in circumstances where the only evidence before the
court is that a single official of the corporate entity was personally unaware
of the decision?
147 CDI
expressed "substantial agreement" with the positions expressed by HD
Mining. The Applicant's filed written submissions in opposition to the proposed
questions.
148 No
question will be certified. The jurisdiction of the Federal Court to grant
public interest standing under the Federal Courts Act has been determined: Harris v Canada
(Minister of National Revenue), [2000] 4 FC 37 (CA). Given the findings and the disposition of this
application for judicial review, none of the other proposed questions, even if
of a general nature, would be determinative of an appeal and thus are not
proper questions to certify: Canada (Minister of Citizenship and Immigration) v
Liyanagamage, [1994] F.C.J. No. 1637.
JUDGMENT
· THIS COURT'S JUDGMENT is that:
· 1.
Paragraphs 28 and 61 of
the affidavit of Officer MacLean, and the affidavits of Curtis Harold and
Douglas Sweeney, are struck from the record;
· 2.
The application is
dismissed; and
· 3.
No question is
certified.
ZINN J.
