TAVORA SEA PRODUCTS CO. LTD. Applicant v. THE MINISTER OF, 2017 FC 546

Date: 20170602 Docket: IMM-2227-16 Citation: 2017 FC 546 Ottawa, Ontario, June 2, 2017 PRESENT: The Honourable Madam Justice Heneghan BETWEEN:TAVORA SEA PRODUCTS CO. LTD.ApplicantandTHE MINISTER OF EMPLOYMENT AND SOCIAL DEVELOPMENT CANADARespondent JUDGMENT AND REASONS [1] Tavora Sea Products Co. Ltd. (the “Applicant”) seeks judicial review of the decision of a Foreign Worker Officer (the“Officer”), a delegate of the Minister of Employment and Social Development Canada (the “Respondent”), to issue a negative LabourMarket Impact Assessment (“LMIA”). [2] The Applicant is a seafood manufacturer and distributor.

It sought a LMIA for the position of fishmonger. The Applicantsubmitted an application form for the LMIA and that application included information about the efforts made to find an employee to fillthe position. [3] In determining the application, the Officer sought the opinion of Mr. Barber, a former supervisor for Loblaws Toronto Areain the Fish Department. The Officer relied on this opinion without disclosing its existence to the Applicant and without giving theApplicant an opportunity to respond to it. [4] Among other arguments, the Applicant pleads that the reliance of the Officer upon the evidence of Mr.

Barber withoutgiving it the opportunity to address it resulted in a breach of procedural fairness. [5] Shortly before the hearing of this application, the decision in Kozul v. Canada (Minister of Employment and SocialDevelopment), 2016 FC 1316, was released. In that decision, Mr. Justice Boswell found that similar facts gave rise to a breach ofprocedural fairness and allowed the application for judicial review. [6] Upon the hearing of the within application, Counsel for the Respondent conceded that the Officer’s reliance upon theevidence of Mr.

Barber, without allowing the Applicant to comment on that evidence, was a breach of procedural fairness. [7] In spite of this concession, the Respondent argues that the Officer reasonably found that the Applicant failed to makereasonable efforts to hire or train Canadians. He submits that the ultimate decision is reasonable, as per the decision in Dunsmuir v. NewBrunswick, 2008 SCC 9 , [2008] 1 S.C.R. 190 at paragraph 47.

In that decision, the Supreme Court of Canada said that thestandard of reasonableness requires that the decision be justifiable, intelligible and transparent, and fall within a range of acceptableoutcomes. [8] In these circumstances, I am satisfied that the decision of the Officer cannot withstand the standard of correctness thatapplies to issues of procedural fairness. [9] I am not persuaded by the Respondent’s submissions that I should exercise my discretion to effectively waive the breach ofprocedural fairness. The Applicant is entitled to a fair assessment of its application.

It did not receive that fairness. [10] In the result, the application for judicial review is allowed, the decision of the Officer is set aside and the matter is remitted toanother Officer for re-determination. There is no question for certification arsing. JUDGMENT THIS COURT’S JUDGMENT is that the application for judicial review is allowed, the decision of the Officer is set aside and thematter remitted to another Officer for re-determination. There is no question for certification arsing. "E. Heneghan" Judge FEDERAL COURT

FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-2227-16 STYLE OF CAUSE: TAVORA SEA PRODUCTS CO. LTD. v. MESDC PLACE OF HEARING: Toronto DATE OF HEARING: november 30, 2016 JUDGMENT AND reasons: HENEGHAN J. DATED: june 2, 2017 APPEARANCES : Mario Bellissimo For The Applicant Wendy Wright For The Respondent SOLICITORS OF RECORD : Bellissimo Law Group Barristers and Solicitors Toronto, Ontario For The Applicant William F. Pentney, Q.C. Deputy Attorney General of Canada For The Respondent