Court finds the requirements of procedural fairness not met and remits matter back to the Minister for redetermination in LMIA revocaton issue
The applicant, Ayr Motors Express Inc. (the “Applicant”), operated a highway transportation business with a number of its workers comprised of foreign workers under the Temporary Foreign Workers Program pursuant to the Immigration and Refugee Protection Act, SC 2001, c. 27 (the “Act”). Before an employer can offer employment to, and seek a work permit for the members of the Temporary Foreign Workers Program, the employer must obtain a positive labour market impact assessment (the “Assessment”) from the Minister of Employment Workforce Development and Labour (the “Minister”). Under the Act, the Minister is charged with the ability to revoke or suspend the Assessment when certain conditions are met.
Administrative law – Decisions of administrative tribunals – Labour and employment boards – Temporary Foreign Workers Program – Judicial review – Natural justice – Procedural requirements and fairness – Employment
Ayr Motors Express Inc. v. Canada (Minister of Employment Workforce Development and Labour), [2017] F.C.J. No. 516, 2017 FC 514, Federal Court, May 19, 2017, R. LeBlanc J.
On November 4, 2014, the Applicant was informed that the Minister was going to review its Assessment and was offered the opportunity to provide additional information to address the Minister’s concerns. The Applicant responded to the Minister denying the allegations against it and providing an explanation for any violations of the Act. The Minister did not review the submissions of the Applicant but rather reviewed a memorandum prepared by her staff. The Minister issued her decision on July 21, 2016, finding that the Applicant contravened the Act (the “Decision”).
The Applicant argued that the decision was unreasonable and violated the principles of procedural fairness. The Court observed that the determining issue in this judicial review was procedural fairness and therefore there was no need to assess reasonableness.
The Court held that the Minister failed to meet “the most basic requirements” of procedural fairness which entitles the applicant to know the case against it and make representations to the decision-maker. Upon reviewing the memorandum that was before the Minister, the Court concluded that the key components of the Applicant’s submissions were not included in the memorandum and therefore overlooked by the Minister in reaching the Decision.
In the result, the Court found that the requirements of procedural fairness were not met and the matter was remitted back to the Minister for redetermination. In particular, the Court observed that the Applicant was deprived of the right to be heard.
This case was digested by Jackson C. Doyle of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact him directly at jdoyle@harpergrey.com or review his biography at http://www.harpergrey.com.
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