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Employer Compliance, Labour Market Opinions, Work Permits

Why your company’s LMO application may become a public document

In the last few weeks, a case between HD Mining and the Construction and Specialized Workers’ Union has been brewing. The final results of this case will go a long way in determining who has the right to make representations to the government on Labour Market Opinion applications that may have been issued incorrectly.

If the court decisions that have been made on this case to date are upheld, unions and others may be able to go to court if they feel that decisions made on Labour Market Opinions are not correct.

First, a bit of background. Because of skilled labour shortages, many Canadian companies have been turning to temporary foreign workers to fill their employment gaps. Before doing so, most companies must obtain Labour Market Opinions – documents issued by Service Canada after Service Canada has been convinced that a company has tried to hire Canadian based workers first.

Last month, the Construction and Specialized Workers’ Union filed what is called an application for leave and judicial review against the government’s decision to issue Labour Market opinions to HD Mining. Since this court application was filed 6 weeks ago, there has been almost constant action on this file.

There have already been a few preliminary skirmishes fought in this case. One of the more interesting decisions is this one from the Federal Court of Appeal last week in which the court refused to “stay” a decision of the trial judge which allowed the union “standing” to bring the court action.

In short, the union had to initially go to court to convince a judge that they could start this court case. In many cases, the only people who can start court cases are persons “directly affected” by what is happening. HD Mining argued that the unions were not “directly affected”.

Despite this argument, the judge allowed the unions to bring this court action. He granted a temporary decision until a full hearing can be scheduled.

If this decision is ultimately upheld, unions and others will be able to challenge Labour Market Opinion decisions. No longer will these matters be just between the company and the government of Canada. As a result, employers and the HR people working in companies should know that this information can be made public – which has already occurred in this case.

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About Reis Pagtakhan

Reis Pagtakhan is an immigration law partner with MLT Aikins LLP. His extensive experience includes assisting businesses obtain temporary entry to Canada and permanent residency for their executives, employees and contractors from all over the world. Reis has lectured on and written papers on immigration law for the Law Society of Manitoba, the Manitoba Bar Association, the Human Resources Management Association of Manitoba, the Canadian Corporate Counsel Association, and the Community Legal Education Association of Manitoba. He has presented position papers before the Minister of Citizenship and Immigration, Immigration Department officials and Manitoba Labour and Immigration. He has written articles on immigration for the CBC, the Winnipeg Free Press, trade, industry and ethnic publications.

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