It’s about ‘reasonable,’ not ‘right’

It’s about ‘reasonable,’ not ‘right’
Immigration news has been the news of late.

However, unlike most of the immigration news lighting up the headlines, it’s not about the refugee system or the deportation of permanent residents with criminal indiscretions. No, this news hits squarely with business immigration and Canada’s Temporary Foreign Worker Program.

Most significant has been last week’s decision by Justice Russel Zinn of the Federal Court in Construction and Specialized Workers' Union, Local 1611 v. Canada (Citizenship and Immigration).

This case stems from the B.C. Mining ruckus several months ago. The circumstances are not uncommon. The Canadian company applied for, and received, a positive Labour Market Opinion to bring in approximately 200 mine workers of various levels to a mine site in British Columbia. A couple of unions took umbrage, citing among other things there were Canadian workers available to perform this work, and raised a challenge to the LMO in Federal Court.

Zinn heard the case, described as “the first time a positive decision made under the TFWP has ever been challenged,” and delivered an extremely detailed position that to my mind may help employers rest a bit easier when utilizing the TFWP, provided they show they are following the rules.

Key to this decision, and perhaps vital to the ongoing success of the TFWP, is a baseline appears to have been set regarding employers meeting their duty by following the rules articulated by the Government of Canada, and the Service Canada officers met their duty by applying the rules in an unfettered way. There can be discussion about whether or not the rules are appropriate, or strict enough, or are effective in protecting the Canadian labour market, but when the employer and Service Canada all play by the rules, we can’t question the validity of the decision.

In fact, Zinn wrote in his decision, “Frankly, an employer must be given some latitude in its hiring even within the TFWP.” He also wrote, “The [Service Canada officer] is not a human resources specialist or a recruitment officer.” In reading both statements, I was struck by how Zinn seemed to be relying on the process, not substituting judgement on the process itself — one of the trickiest parts of the TFWP.

This decision is extraordinary in it appears to state all of the things that should have come from the Ministers of Service Canada and Citizenship and Immigration Canada during much of the recent bad press regarding the TFWP. It discusses reasonableness, discretion, and the ability to evaluate and collaborate to come up with a reasonable, not a “right,” decision, leaving out the notions of good or bad. The requirement is the hiring of the temporary foreign workers will have a neutral or positive effect on the Canadian labour market. Where the government should have supported it’s imperfect system, it instead took to discussing drastic steps that seem posied only to curb the public’s outrage, whereas Zinn rests on a concept of fair play.

I suppose opponents of Zinn’s decision will take refuge in the notion that Service Canada and CIC are tightening the reins on the TFWP. For example, one of the key elements in the decision is that a language other than one of Canada’s official languages was required for the more than 200 positions filled. The concern is if you allow foreign workers to work in their foreign language on Canadian sites, it becomes increasingly difficult to cross-train and promote an all, or mostly, Canadian workforce.  As a result, there has been a tightening of this requirement within the government offices, and a decision made that foreign languages cannot be a requirement for an LMO.

In the case at hand, the judge discussed the reasonableness of the foreign language requirement, and the steps that were being taken by the Canadian employer to establish a training plan between these assumed non-English speaking foreign workers and the on-boarding of locally hired Canadian workforce. Again, Zinn looked at the totality of the situation and made a reasonable assessment.

These sorts of “applied pressure” changes the government is making do not seem to recognize the reality of the Temporary Foreign Worker Program and Canadian employers’ role in it. There are all sorts of business relationships, business needs, and justifications for hiring foreign workers. A one-size-fits-all approach is not feasible.

Neither should it be assumed Zinn’s comments that an employer deserves some latitude be construed as a carte blanche for employers to do whatever they want. Rules are important, and guidelines ensure the labour market is protected and fairness is applied across the board. However, this decision may give more employers justification in seeking Federal Court opinion on negative and/or unreasonable decisions.

The TFWP is not perfect, but nor is it flawed beyond use. In response to recent temporary foreign worker “scandals,” the government should have responded with a more reasoned approach. Better to have said no rules appeared to have been broken, but we will continue to take a look at the infrastructure, than to come out in shock that such a thing could happen! It undermines the system in the eyes of the public. Knee-jerk changes then undermine the process for Canadian employers.

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