Federal Court of Canada makes it clear that policy cannot trump law (or common sense!)
At long last – some relief for employers seeking the widely-dreaded and feared Labour Market Impact Assessment (LMIA)!
In Marcom Resources Ltd. v. Canada (Employment, Workforce Development and Labour), 2020 FC 182, Associate Chief Justice Gagné reiterates that officers must consider all the information provided by the applicant, and provide a rationale whenever submitted evidence is set aside, if such evidence would impact the outcome of the application. She also concluded that the officer fettered her discretion by relying too narrowly on policies without considering relevant information provided in the application. The full text of the decision is available here: https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/460806/index.do.
This decision sends a clear message to LMIA officers that they are to adopt a holistic approach when reviewing applications, and that the LMIA program requirements are policy, not law. In the event an employer has not complied with a program requirement, the officer must step back and consider the bigger picture. Given all the evidence submitted, has the employer made reasonable efforts to hire Canadians and demonstrate that there is a labour shortage? Employers and their lawyers now have an additional tool in their belt when going through the lengthy, complicated (and at times, contentious) LMIA application process.
