AYR MOTORS EXPRESS INC Applicant v. MINISTER OF, 2017 FC 514

Date: 20170519 Docket: IMM-4140-16 Citation: 2017 FC 514 Ottawa, Ontario, May 19, 2017 PRESENT: The Honourable Mr. Justice LeBlanc BETWEEN: AYR MOTORS EXPRESS INC Applicant and MINISTER OF EMPLOYMENT WORKFORCE DEVELOPMENT AND LABOUR Respondent JUDGMENT AND REASONS I. Introduction [ 1 ] The Applicant is a company involved in long-haul highway transportation services.

For years now, a portion of its workforce has been comprised of foreign workers hired under the Temporary Foreign Worker Program (the TFW Program) established pursuant to the Immigration and Refugee Protection Act , SC 2001, c 27 (the Act ) and the Immigration and Refugee Protection Regulations , SOR/2002-227 (Regulations).

The purpose of the TFW Program is to enable employers to hire foreign workers on a temporary basis to fill immediate skills and labor shortages when there are not sufficient Canadian citizens or permanent residents available to fill the positions in question ( Frankie's Burgers Lougheed Inc v Canada (Employment and Social Development) , 2015 FC 27 , at para 41 [ Frankie's Burgers ]). [ 2 ] In order to access the TFW Program, an employer must first seek- and obtain - from the Minister of Employment Workforce Development and Labour (the “Minister” ) a positive Labour Market Impact Assessment ( “LMIA” ).

It is only then that an employment offer to a temporary foreign worker can be made by the employer and that a work permit can be sought from - and delivered by - Immigration, Refugees and Citizenship Canada. [ 3 ] On July 21, 2016, the Minister, after a previous failed attempt, revoked three of the LMIAs previously issued to the Applicant on the basis that the Applicant had provided “false, misleading or inaccurate information” in its applications for these LMIAs. [ 4 ] The Applicant is seeking judicial review of this decision on the ground that the Minister breached the principles of procedural fairness and that the decision is otherwise unreasonable.

II. Background [ 5 ] The relevant facts of the present case can be summarized as follows. Since its first participation in the TFW Program in 1999, the Applicant has employed approximately 550 temporary foreign workers (TFWs). It says that TFWs currently represent ten percent (10%) of its workforce. [ 6 ] Under paragraph 30(1.43) of the Act , the Minister is empowered to suspend or revoke a LMIA where he/she is of the view that public policy considerations that are specified in instructions given by him/her justifies it.

Since December 31, 2013, the instructions governing the revocation of LMIAs are those specified in the Ministerial Instructions Respecting Labour Market Opinions , 28 December 2013

(2013) C Gaz I, 3005 (Ministerial Instructions). Especially,

section 2 of the Ministerial Instructions, provides for three (3) situations that may lead to revocation, one of which is if the employer provided false, misleading or inaccurate information during the LMIA application process. [ 7 ] On November 4, 2014, the Applicant was informed that the Minister would be reviewing its participation in the TFW Program. This was the fourth review of the Applicant’s participation into the TFW Program in two years.

According to the Applicant, the previous reviews had found no wrongdoing on its part. [ 8 ] However, the November 2014 review led, on March 30, 2015, to the revocation of the LMIAs at issue in the present instance. The Applicant challenged that decision before the Court and on October 26, 2015, a consent Order quashing the Minister’s decision was issued by the Court (Docket No. IMM-1850-15). No particular context is offered as to why the Minister consented to such Order. [ 9 ] Following that consent Order, the Minister initiated a second review into the same LMIAs.

The Minister’s concerns were communicated to the Applicant in a letter dated December 4, 2015. They were expressed in these terms: “Based on this Review, Employment and Social Development Canada/Service Canada (“Service Canada”) has concerns that Ayr may have provided false or misleading statements in its applications for the above referenced LMIAs with respect to the wages and transportation costs of the temporary foreign workers (“TFWs”).

More specifically, the information on our files indicated that Ayr may have required their TFWs to pay for items with no associated documentation or agreement and to pay their own transportation costs,

contrary to the attestations Ayr provided in its LMIA applications. Furthermore, although Ayr has provided some explanations ondeductions such as “Tractor Expense” “Fine Expense” and “Payroll Advances”, it did not provide any documentation to demonstrate thatagreements were signed between AYR and the foreign worker allowing for these specific deductions”. [10] The Applicant was invited to “provide additional information and clarification to address Service Canada’s concerns” byDecember 21, 2015. In particular, the Applicant was requested to provide specific documentation to demonstrate its compliance to theTFW Program, namely (

i) signed documentation/agreements pertaining to TFW’s wages deductions and (ii) documentation establishingthat the Applicant had paid up front TWFs’ transportation costs when the TWFs were coming in from another country or anotherlocation in Canada. [11] By letter dated December 17, 2015, the Applicant, through its counsel, responded to the Minister’s concerns. It denied havingprovided false or misleading information in relation to the TFWs’ transportation costs and wage deductions and explained why. It alsocontended that any violation of the TFW Program would have been inadvertent and administrative in nature.

It further claimed that anysuch violation “was not blameworthy as it was not in the nature of an abuse of the system nor an abuse of TFW’s”. At most, theseproblems or irregularities were oversights which had been corrected since. [12] The Applicant also urged the Minister to consider its compliance history with the TFW Program’s requirements and continuedcooperation with TFW Program’s officials in the conduct of their investigation.

Finally, the Applicant claimed that if the LMIAs at issuewere to be revoked by the upcoming decision, it would be punished beyond the maximum punishment provided by the TFW Program bybeing barred from the TFW Program for a longer period than the two years prescribed by the Program as a result of the bar imposed inrelation to the March 30, 2015 decision and the one that would ensue a new decision revoking these LMIAs. [13] On March 3, 2016, claiming that the Minister was unduly delaying its review of the three impugned LMIAs as well as of apending LMIA request, the Applicant filed a second judicial review application in the nature of a mandamus (Docket No.

IMM-936-16).Leave was granted by the Court in June 2016. [14] On July 21, 2016, the Minister issued the impugned decision, holding that the Applicant had provided false, misleading orinaccurate information in its requests for these LMIAs by not paying transportation costs in advance and by not providing writtenagreements for deductions taken from TFWs’ wages as required by the TFW Program. [15] As a result to the July 21, 2016 decision, the mandamus proceedings were held to be moot by Order of this Court datedAugust 29, 2016. The Applicant then filed the present judicial review proceedings. III.

Issues and Standard of Review [16] As indicated at the outset of these Reasons, the Applicant claims that the impugned decision is flawed in two respects; that isby having been rendered in violation of the principles of procedural fairness and by being unreasonable. [17] In my view, the determinative issue in this case is procedural fairness.

It is trite law that questions of that nature arereviewable on the correctness standard, which means that no deference is owed to the decision-maker in this respect (Canada(Citizenship and Immigration) v Khosa, 2009 SCC 12, at para 43). [18] As a result, there will be no need to determine whether the Minister’s decision is reasonable or not. IV.

Analysis [19] The requirements of procedural fairness are flexible and will vary according to the specific context of each case (Frankie'sBurgers, at para 73; Baker v Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 SCR 817, at para 21[Baker]. [20] Baker sets out a non-exhaustive list of factors that are relevant in the determination of the duty of procedural fairness owed ina given set of circumstances.

Recently, in Frankie's Burgers, which concerned the denial of applications for Labour Market Opinions(renamed LMIAs on June 20, 2014), the Court held that a consideration of these factors led to the conclusion that the requirements ofprocedural fairness in such context were relatively low. It so concluded on the ground that, (

i) the structure of the LMO assessment process is far from judicial in nature, (ii) unsuccessful applicants can simply submit anotherapplication (Maysch v Canada (Citizenship and Immigration), 2010 FC 1253, at para 30; Li v Canada (Citizenship and Immigration),2012 FC 484, at para 31 [Li]), and (iii) refusals of LMO requests do not have a substantial adverse impact on employers, in the sense ofcarrying “grave,” “permanent,” or “profound” consequences (Baker, above, at paras 23-25)” (Frankie's Burgers, at para 73) [21] The Applicant contends that where an LMIA is being revoked as opposed to being denied as was the case in Frankie'sBurgers, an elevated standard of procedural fairness is required.

However, there is no need to embark on this analysis as I am of the viewthat even the most basic requirements were not met in this case. Here is why. [22] These most basic requirements entitled the Applicant to know the case against it and to make representations to the decision-maker, which in this case, is the Minister herself, not her officials. The Applicant did have the opportunity to respond to the Minister’sconcerns but its submissions did not make their way to the Minister. This is, in my view, the fundamental and determinative flaw with theprocess that led to the Minister’s decision.

In other words, the Applicant was not given a meaningful opportunity to be heard.

[23] A review of the document that was before the Minister, which is a memorandum prepared by her officials (theMemorandum), reveals that the gist of the Applicant’s position was not conveyed to the Minister. All it says is that the Applicant couldnot demonstrate that it had paid up front the transportation costs and that it was unable to produce written agreements or a responsibleexplanation for deductions from TFWs’ wages that were not covered by federal or provincial law.

It does not convey the Applicant’sposition that it is not a requirement of the TFW Program to pay transportation costs in advance or that wage deductions not covered byfederal or provincial law were made with the full consent of the TFWs concerned.

Furthermore, none of the Applicant’s submissionswhich could have enabled the Minister to appreciate the nature of the alleged misleading or incorrect information nor any mention of theApplicant’s overall compliance with the TFW Program over the years, can be found in the Memorandum. [24] This is all the more surprising that there is on record a detailed 6-page chart outlining side by side the Minister’s concerns, theApplicant’s response to these concerns and an analysis of the Applicant’s response.

However, as counsel for the Respondentacknowledged at the hearing, this chart was not before the Minister when she made the decision to revoke the MLIAs at issue in July 21,2016.

The only piece of information that was before her was the Memorandum. [25] I appreciate the fact that the volume and complexity of modern decision-making in a regulatory setting such as the present onenecessitates resort to many sources, including officials not charged with the responsibility of deciding the matter (Armstrong v RoyalCanadian Mounted Police, [1994] 2 FCR 356 citing Khan v College of Physicians and Surgeons of Ontario (1992), (ON CA), 9 OR (3d) 641 (C.A.), of the Court of Appeal of Ontario).

However, this does not supersede the need to satisfy the applicableprocedural fairness requirements in any given case. Here, again, I am struck by the fact that the Memorandum only conveys the officials’conclusions as to the Applicant’s alleged non-compliance with the TFW Program requirements. It conveys none of the Applicant’ssubmissions, be it in a

summary form or otherwise, and no analysis whatsoever of these submissions, be it again in a

summary form orotherwise. In other words, the Minister revoked the LMIAs at issue without knowing what the position of the Applicant on theallegations it was facing was and without the benefit of any analysis in this regard. Yet, the chart mentioned above provided thisinformation but it was not shared with the Minister to any appreciable degree. [26] As the Memorandum shows, it was open to the Minister to seek an oral briefing or to ask her officials that a member of herstaff be briefed. According to the Memorandum, she did not request any briefing.

However, have she had before her some idea of whatthe Applicant’s position was, she and/or members of her staff may have asked more questions to the officials in charge of the file andpossibly come up with a different decision. [27] I am also struck by the fact that pursuant to paragraph 203(1)(

e) of the Regulations, it is open to an employer, when itsemployment offer is being assessed by Immigration, Refugees and Citizenship Canada for the purposes of issuing a work permit, tojustify its non-compliance with some of the conditions for the issuance of the requested work permit, including those relating to wageconditions. Section 203(1.1) lists recognized justifications that may be accepted. Notably, section 203(1.1)(

e) stipulates that a failure tosatisfy the criteria set out in paragraph 203(1)(

e) is justified if it results from an unintentional accounting or administrative error made bythe employer, if the employer subsequently provided compensation. I note that a similar approach governs the sanctioning of anemployer’s failure to satisfy the TFW Program’s conditions, be it through a monetary penalty or a period of ineligibility.

In suchinstances, it is also open to the faulted employer to offer some justification for the alleged wrongdoing, as evidenced by sections 209.93to 209.996 of the Regulations. [28] Given the close interconnection between the LMIA, the employment offer and the ensuing work permit, the Minister mayhave been inclined to exercise her revocation authority under the Ministerial Instructions in this case in a way that would have allowed,as the Regulations do, some consideration for the justifications put forward by the Applicant to explain what, in its view, were, at worst,mere administrative oversights.

This has not been possible since the Minister did not have that information before her. [29] As the Court stated in Tiedeman v Canada (Human Rights Commission) [1993] FCJ No. 667 at para 12, “[t]o solicit therepresentations of a party and, subsequently, to fail to consider them, renders hollow the hallowed principle of the right to be heard”. Thisis precisely what the Applicant, in my view, is ultimately complaining of in the present case. It was deprived of the right to be heardwhen and where it counted.

Given the present case’s judicial history, I would have thought that a more cautious approach in this regardwould have been taken in bringing the matter to the attention of the Minister for decision. [30] For all these reasons, I find that the Applicant’s basic right to be heard in a meaningful way was not respected. As theSupreme Court of Canada stated in Lakeside Colony of Hutterian Brethren v Hofer, (SCC), [1992] 3 SCR 165 [Hofer],natural justice “requires procedural fairness no matter how obvious the decision to be made may be”.

In other words, it may not changeanything ultimately to the decision to be made, but this is what the law requires (Hofer, at p 222). [31] The present judicial review application will therefore be granted and the matter remitted to the Minister for redetermination. [32] As the parties were not prepared at the hearing to make submissions on certification, I indicated that I would accept writtensubmissions on this issue once my decision was rendered. The parties are therefore given 30 days from the release of these Reasons tomake submissions on this issue.

These submissions shall be provided by letter to the Court’s Registry in Ottawa, Ontario, and shall notexceed three (3) pages. JUDGMENT THIS COURT’S JUDGMENT is that: 1. The judicial review application is granted; 2. The decision of the Minister of Employment Workforce Development and Labour, dated July 21, 2016, is set aside and the

matter is remitted to the Minister for redetermination; 3. The parties are given 30 days from the release of these Reasons to make submissions on Certification. “René LeBlanc” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-4140-16 STYLE OF CAUSE: AYR MOTORS EXPRESS INC v MINISTER OF EMPLOYMENT WORKFORCE DEVELOPMENT AND LABOUR PLACE OF HEARING: Fredericton, New Brunswick DATE OF HEARING: April 10, 2017 JUDGMENT AND REASONS: LEBLANC J. DATED: May 19, 2017 APPEARANCES : James C.

Crocco For The Applicant Patricia MacPhee For The Respondent SOLICITORS OF RECORD : Crocco Hunter Barristers and Solicitors Woodstock, New Brunswick For The Applicant William F. Pentney Deputy Attorney General of Canada Fredericton, New Brunswick For The Respondent