A decision was issued today by the Honourable Mr. Justice Zinn of the Federal Court in
file IMM-11316-12:
CONSTRUCTION AND SPECIALIZED WORKERS' UNION, LOCAL 1611 ET
AL. v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION CANADA ET
AL.
Summary: The application filed by the Applicants is dismissed.
The Applicants challenged a decision made under Canada’s Temporary Foreign Worker
Program which is administered by the Respondents. The Applicants were granted public
interest standing by the Court to bring this application for leave and judicial review.
Specifically, they challenged the decision of an officer of Human Resources and Skills
Development Canada to issue positive Labour Market Opinions [LMOs] under section
203 of the Immigration and Refugee Protection Regulations, SOR/2002-227
[Regulations]. The officer issued the LMOs to HD Mining International Ltd. [HD
Mining] for 201 workers from China to do the work of extracting a bulk sample from HD
Mining’s coal properties near Tumbler Ridge, British Columbia, on the basis that the
employment of these foreign nationals would likely result in “a neutral or positive effect
on the labour market in Canada.”
The Court held that the officer did not fetter his discretion when assessing the LMO
application from HD Mining, or make any unreasonable assessment when considering the
factors set out in subsection 203(3) of the Regulations. Further, as counsel for the
Applicants conceded, it is not necessary that an applicant meet every one of the six
factors listed in subsection 203(3); rather, the decision-maker must examine and assess
each and then perform a weighing exercise to decide whether the LMO will issue. This is
exactly what the officer did. In particular, the officer had noted that even if the job
creation and skill transfer factors did not weigh in favour of a positive opinion, all of the
others did and the LMO would still issue.
A copy of the decision can be obtained via the Web site of the Federal Court: http://cas-ncr-nter03.cas-satj.gc.ca/rss/Bulletin%20IMM-11316-12.pdf
