Background
Rogami Services Limited, a staffing agency, sought judicial review of an August 1, 2024 decision by an Employment and Social Development Canada (ESDC) officer refusing its application for a Labour Market Impact Assessment (LMIA). The application, dated April 17, 2024, concerned two full-time personal care aide positions in Kingston, Ontario.
The officer refused the application on two grounds: the offer of employment was not genuine under subsection 200(5) of the Immigration and Refugee Protection Regulations, SOR/2002-227 [IRPR], and the employment of temporary foreign workers was unlikely to have a neutral or positive effect on the Canadian labour market under paragraph 203(1)(b) of the IRPR.
Before the Federal Court, the style of cause was amended to name Rogami Services Limited as the proper applicant (rather than its General Manager, Bolarinwa Famose) and the Minister of Employment and Social Development as the proper respondent, pursuant to subsection 18.1(1) of the Federal Courts Act and the Federal Courts Citizenship, Immigration and Refugee Protection Rules.
The Court’s Holding
Justice Joyal dismissed the application for judicial review, finding the officer’s decision reasonable under the standard articulated in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65. The Court held that the officer’s conclusion rested largely on the finding that the Applicant is a staffing agency, while the job offer was for positions involving direct personal care, not staffing work. On the record before the officer, it was reasonably open to the officer to conclude that the offer was not genuine within the meaning of the applicable regulations.
The Court found the officer reasonably determined the offer was not genuine based on three factors under subsection 200(5) of the IRPR: the Applicant was not actively engaged in the business in respect of which the offer was made (paragraph 200(5)(a)); the offer was not consistent with the Applicant’s reasonable employment needs (paragraph 200(5)(b)); and the Applicant had not demonstrated it was reasonably able to fulfil the terms of the offer (paragraph 200(5)(c)). Central to this conclusion was the officer’s finding, grounded in the Applicant’s website describing it as a “Healthcare Staffing Agency” and its own business description, that the Applicant was a staffing agency rather than a healthcare provider.
The Court rejected the Applicant’s argument that client agreements protected the terms of the offer. The Court noted that when the officer asked for its contracts with its clients, the Applicant’s representative replied that the request was “out of the scope of this application”. The Applicant also could not identify at which retirement homes the workers would be placed, as this depended on client demand. The Court further held that the officer’s reasons were not internally contradictory; a passage describing the Applicant as “a healthcare agency that provides staffs for many retirement homes” merely reproduced the Applicant’s own description, while the officer properly classified the business under code 5613 (employment services) of the North American Industry Classification System.
Regarding the second ground of refusal, the Court held that since a job offer reasonably found not to be genuine is dispositive of the LMIA application under paragraph 203(1)(a) of the IRPR, it need not decide whether the officer’s conclusion on the effect on the labour market was reasonable. The Court also rejected the Applicant’s procedural fairness argument, finding that the officer’s reasons—including assessment notes and notes of interactions with the Applicant—explained why the offer was found not genuine, and that the officer had raised concerns with the Applicant and given it an opportunity to respond.
Key Takeaways
- A staffing agency seeking an LMIA for positions involving direct personal care may be found not to be actively engaged in the business in respect of which the offer is made, as required by paragraph 200(5)(a) of the IRPR, where the agency’s business is placing workers with clients rather than providing care services directly.
- An employer’s refusal to provide requested documentation—such as client contracts—during an LMIA assessment may support a finding that the employer has not demonstrated its ability to fulfil the terms of the job offer under paragraph 200(5)(c).
- A finding that a job offer is not genuine under paragraph 203(1)(a) is dispositive of an LMIA application, rendering it unnecessary for a reviewing court to consider whether the employment would have a neutral or positive effect on the labour market under paragraph 203(1)(b).
- Prior positive LMIA decisions for the same occupational group do not render a subsequent refusal unreasonable where the prior decision contains no reasons, was made under a different stream, for a different work location, and at a different wage.
Why It Matters
This decision clarifies the application of the genuineness requirement under subsection 200(5) of the IRPR to staffing agencies seeking LMIAs for positions that involve direct service provision rather than staffing work. It confirms that officers may reasonably distinguish between an employer’s business activities and the nature of the positions offered, particularly where the employer’s own documentation describes its business as staffing or placement services.
The ruling also underscores the importance of employer cooperation during LMIA assessments. An employer’s refusal to provide requested documentation, such as client contracts, may undermine its ability to demonstrate that it can fulfil the terms of the job offer, thereby supporting a finding that the offer is not genuine. Additionally, the decision confirms that a finding of non-genuineness is dispositive, allowing courts to decline consideration of labour market effect arguments once that threshold determination is made.