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.