Law Times

www.lawtimesnews.com LAW TIMES COVERING ONTARIO'S LEGAL SCENE | FEBRUARY 4, 2019 11 BY MICHAEL MCKIERNAN For Law Times T he process for obtaining a Labour Market Impact As- sessment must change to better ref lect the reality of global commerce, according to a To- ronto immigration lawyer. Positive LMIAs are required to obtain work permits for some applicants entering Canada under the Temporary Foreign Worker Program, but Wennie Lee, principal at immigration law firm Lee and Company, says the difficulty in obtaining one is hampering employers' ability to respond to skills shortages in certain industries and regions of the country. "The LMIA process is in- herently there to protect the interests of domestic workers, but at the same time, we need to recognize that the way we work is changing, and the nature of competition is global," she says. According to Lee, her view is supported by the text of the Immigration and Refugee Pro- tection Regulations that govern LMIAs. According to s. 203, positive opinions should be issued if the employment of a foreign national "is likely to have a neutral or positive effect on the labour market in Canada," so long as reasonable efforts have been made to hire or train Can- adians or permanent residents. However, Lee says that doesn't tally with the approach to the LMIA process taken by Employment and Social De- velopment Canada, which she says administers the TFWP in practice as a program of "last resort" for employers who can't find qualified Canadians. The roots of the disconnect can be found in a 2014 overhaul of the system, she adds. "There's a big difference between proving a foreign na- tional's hiring is a last resort as opposed to one that will have a neutral or positive effect on the domestic labour market," Lee says. Although a Federal Court judge could in theory rule on the discrepancy and overturn an ESDC officer's rejection, Lee says the costly and time-sensitive na- ture of most LMIA cases makes an application for judicial review an unrealistic option. "Small and medium-sized businesses especially have no reason to want to litigate," Lee says. She says a simpler, more em- ployer-driven process that in- corporates the views of trade associations, unions and other stakeholders would put Can- adian businesses in a better pos- ition to compete. Enforcing em- ployer commitments not to lay off domestic workers as a result of foreign hiring could serve as an adequate check, she suggests. Meanwhile, in late 2018, the Canadian Bar Association used an ESDC service standards and fee review to express the con- cerns of its immigration law section that the current LMIA process "often does not serve the interests of employers" and may actually be having "a negative impact on the employment of Canadians" as local employers pass up growth opportunities or scale back on plans that may involve the hiring of foreign workers for fear of the associated hassle. Even before the 2014 over- haul, Jacqueline Bart, founder of immigration law boutique BartLaw in Toronto, says immi- gration lawyers and their clients have always avoided the LMIA process wherever possible, hoping to find a match for for- eign workers in one of the hun- dreds of work permit categories that do not require an LMIA. "It's the most complicated route for a work permit, so we comb through the legislation, based on the employee's creden- tials, job title, duties, salary, age, language ability and many other aspects, to try to find an exemp- tion," she says. Henry Chang, a Toronto im- migration lawyer with Blaney McMurtry LLP, says he has seen many employers fall afoul of the stringent job advertising re- quirements as part of the LMIA process, which recruiters use to demonstrate that there are no suitable Canadians or perma- nent residents to fill positions. Employers must use the government-run Job Match or Job Bank databases to post job ads, but Chang says the systems regularly match unqualified candidates with jobs and use formats are not designed to easi- ly incorporate all the content re- quired for a valid LMIA ad. One client of Chang's recent- ly realized an advertisement had brief ly expired while he was on holiday. He renewed it, but he was worried about the possibility it might be viewed as a technical violation of the rule that one job ad must run continuously until a final LMIA decision is made. "I'd like to have been able to tell them that it was a minor thing and it wouldn't be a prob- lem, but I've seen officers say 'no' and make people start all over again for less," Chang says. In a statement to Law Times, ESDC spokesman Josh Bueckert emphasized the importance of employer compliance with the program's strict criteria. "The Government of Canada is continually looking to im- prove the efficiency of its pro- cesses and [is] always open to input on its programs so that they remain relevant and work for everyone, including employ- ers, workers and the Canadian economy," he added. LT Wennie Lee says the difficulty in obtaining a labour market impact assessment is hampering employers' ability to respond to skills shortages in certain industries and regions of the country. Roots of disconnect found in 2014 overhaul of system Process for getting LMIAs should change FOCUS The Canadian Lawyer InHouse Innovatio Awards is the pre-eminent award program recognizing innovation by members of the in-house bar within the Canadian legal market. These awards celebrate in-house counsel, both individuals and teams, who show leadership by becoming more efficient, innovative and creative in meeting the needs of their organizations. The Innovatio awards program draws on a panel of in-house counsel judges to determine the winners, based on a range of criteria. 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