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T-8406-82
The Way Biblical Research and Teaching Minis try of Canada (Applicant)
v.
Canada Employment and Immigration Commis sion and Minister of Employment and Immigra tion and Secretary of State for External Affairs (Respondents)
Trial Division, Jerome A.C.J.—Toronto, Novem- ber 22; Ottawa, December 3, 1982.
Judicial review Prerogative writs — Mandamus
Application for writs of mandamus in relation to applications for employment validations for foreign teachers — Govern ment official styled "Labour Market Planning Consultant" advised applicant of decision refusing applications for employment validations on grounds applicant's enterprise failed to provide economic benefits to Canada or employment benefits to Canadians — Subsequently, second Canadian offi cial in Detroit sent telex to applicant indicating that while no application was before him, if one was, he would, taking into account decision of Labour Market Planning Consultant, refuse it on grounds that requirements of Regulation 20 not
met Regulation 20 requires that immigration officer, on consultation with National Employment Service, determine whether employment of applicant's representatives might adversely affect employment opportunities for Canadians and whether efforts made to hire qualified Canadians — Applica tion granted — Labour Market Planning Consultant not immigration officer within meaning of Regulation 20 therefore adjudication on applications before him made without author ity — Government official in Detroit was immigration officer within meaning of Regulation, however, in that no application
was before him, no decision possible Regardless of whether person making decision had authority to do so, decision inval id because criteria relied upon extraneous to considerations set out in Regulation 20 Immigration Regulations, 1978, SORT 78-172, ss. 18, 19, 20 (as am. by SOR/80-21, s. 7).
COUNSEL:
Paul J. Stott for applicant. Paul Evraire for respondents.
SOLICITORS:
Abraham, Duggan, Hoppe, Niman, Stott, Toronto, for applicant.
Deputy Attorney General of Canada for respondents.
The following are the reasons for order ren dered in English by
JEROME A.C.J.: This application for a writ of mandamus first came on for hearing at Toronto, Ontario, on November 8, 1982, at which time the applicant also sought an order for the use of oral testimony upon the return of the motion, which I rejected. Alternatively, the applicant sought an order to compel answers to questions which the deponent, Judith Klein, had refused to answer in cross-examination upon her affidavit. An order was made compelling answers to certain questions. That order is presently under appeal by the Crown and an application to stay the effect of the order pending the outcome of the appeal was refused at Toronto on November 30, 1982. Counsel did agree that they were in a position to argue on Monday, November 22, one other aspect of the application as it relates to confirmation of offers of employ ment, and employment authorizations, respecting religious instructors for The Way College of Bibli cal Research in London, Ontario.
The parties agreed that, in addition to an application for a writ of mandamus compelling the respondent to process such applications, no proce dural objection would be taken if I concluded that an order for certiorari should go setting aside decisions taken on these same applications up to the present time.
The evidence discloses that representatives of the applicant attended at the London office of Employment and Immigration Canada to seek the necessary validations. In due course, they received correspondence from G. Davidson, Labour Market Planning Consultant, Ontario Region, Employ ment and Immigration Canada. The letter, under date of November 12, 1982, is Exhibit "A" to the Marsha Faubert affidavit. The last two paragraphs are significant.
Two of the major requirements germane to the approval of foreign workers are that: (1) the enterprise provide economic benefits to Canada and (2) employment benefits to Canadians. In this particular case, neither of these conditions are met. There would be no direct economic or employment benefits
accruing to Canada through the operation of this enterprise; nor can you provide us with specific plans to integrate qualified Canadians into the operation in the foreseeable future.
In view of the foregoing, we are unable to validate your request for 5 foreign teachers at this time.
Exhibit "B" to the Faubert affidavit is a telex from Mr. Benoit of the Detroit office of Employ ment and Immigration Canada to the applicant's solicitors dated November 15, 1982, as follows:
I understand that your client The Way International has requested that you attempt to obtain validation of offers of employment for certain named individuals destined to employ ment at The Way College of Biblical Research in London, Ontario. While formal applications for employment authoriza tions from these individuals have not yet been received I wish to inform you that should such requests be made to this office same would be refused since it is my considered opinion that the provision of Reg 20(3)(A) has not been met.
In reaching this conclusion I have considered the contents of the letter on this subj [sic] addressed to Rev. Stephenson C/O your office by Mr. George Davidson Regional HQ in Toronto dated 12/11/82.
The relevant portions of Regulation 20, SOR/ 78-172, as am. by SOR/80-21, s. 7, are as follows:
20. (1) An immigration officer shall not issue an employment authorization to a person if,
(a) in his opinion, employment of the person in Canada will adversely affect employment opportunities for Canadian citi zens or permanent residents in Canada; or
(3) In order to form an opinion for the purposes of paragraph (1)(a), an immigration officer shall consider
(a) whether the prospective employer has made reasonable efforts to hire or train Canadian citizens or permanent residents for the employment with respect to which an employment authorization is sought;
(b) the qualifications of the applicant for the employment for which the employment authorization is sought; and
(c) whether the wages and working conditions offered are sufficient to attract and retain in employment Canadian citizens or permanent residents.
(4) Where an immigration officer considers the questions set out in paragraphs 3(a) and (c), he shall take into consideration the opinion of an officer of the office of the National Employ ment Service serving the area in which the person seeking an employment authorization wishes to engage in employment.
The letter of November 12 does not establish that Mr. Davidson is an immigration officer for
the purposes of Regulation 20 and yet the last paragraph can leave no doubt that he is behaving in that capacity. The letter is addressed to Rev erend D. Stephenson, on behalf of the applicant, at the offices of their solicitors and concludes with a decision that validation will not be granted in respect of the five foreign teachers. It may be that Mr. Davidson enjoys sufficient regional responsi bility to meet the requirement of subsection (4), but entirely aside from that consideration, the letter makes it clear that Mr. Davidson is not rendering his opinion on that subject to an immi gration officer, but is in fact adjudicating upon the request and communicating the decision directly to the applicant. I also accept the submission of counsel for the applicant that the criteria set out in the body of the letter relating to the requirement of an enterprise to provide economic benefits to Canada and employment benefits to Canadians does not conform to the language of the Regula tions and brings into play considerations which are extraneous to the statutory authority.
Turning then to the Benoit telex some three days later, there can be no doubt that Mr. Benoit is an immigration officer, as contemplated by Regulations 18, 19 and 20. The telex, of course, cannot constitute a decision on applications for employment validations because it acknowledges, in its very text, that no such applications have been made to Mr. Benoit; but there is an additional and more substantial defect, and that is the reliance upon the Davidson letter. Regulation 20 requires the immigration officer to determine whether employment of the applicants may adversely affect employment opportunities for Canadians and whether efforts have been made to hire qualified Canadians for the jobs. An analysis of the enter prise in which the applicants are to be employed may be of value in reaching the conclusions which are contemplated in Regulation 20, but a determi nation of whether the enterprise provides economic benefits to Canada and employment benefits to Canadians cannot be equated with the consider ations that are set out in specific terms in the Regulations. Irrespective, therefore, of whether Mr. Davidson possessed the qualifications to advise immigration officers, as contemplated by Regulation 20(4), and irrespective of whether Mr. Benoit, as such an immigration officer, had the authority to decide on applications for employment
authorizations, it remains quite clear that the deci sion was made here either by Mr. Davidson, who was not authorized to make it, or by Mr. Benoit, to whom an application for decision had not been made, and in either event, upon criteria which lie entirely outside those set out in the appropriate Regulations.
In my opinion, the circumstances warrant an order of certiorari quashing the decision and one of mandamus sending the matter back to the appropriate immigration officer for a decision on these employment validation applications upon the advice of a person having responsibility under the National Employment Service for employment in the London area and in accordance with the requirements of Regulations 20(1)(a) and 20(3).
 You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.