US and Canadian Immigration Lawyer Andy Semotiuk: Many years ago, in my western Canada days, I was involved in a company called Boston Coffee. We ran a coffee cart at the Hilton Hotel in Edmonton. We started winning over loyal customers, such as the visiting National Hockey League players staying at the hotel. They had convinced themselves that the reason they were beating our Edmonton Oilers was because they were buying our coffees. Lineups at our cart started forming. Things looked good.

Then the trouble started. Instead of ensuring that each cup of coffee was as good as it could be, we were too busy paying attention to other interests.

In my case, I was practicing immigration law. One of the other owners was running another franchise. Two others were busy looking at machinery and equipment worldwide and exploring new locations to build our coffee empire. Meanwhile, cup-by-cup, our business sank. Within a few months we were out of business. In short, we neglected our garden and the weeds took over. We were bad business leaders. We paid the price, learned from it, and moved on.

This lesson about tending to your garden is sometimes also ignored by our government leaders. I recently came across this very problem in immigration law. I hold the view that government leaders should tend to their garden and step in to correct problems. Failing to do so erodes the rule of law and undermines confidence in our institutions.

Labour Market Impact Assessment

Take the recent case of an industrial plant in Ontario that applied for a Labour Market Impact Assessment (LMIA) from the federal Department of Employment and Social Development. The purpose of the application was to prove that despite a good faith effort, the Canadian employer could not find a local worker who was ready, willing and able to take the job opening. For this reason, a skilled foreigner was needed. I prepared the LMIA with the help of some experts in my Canadian law office.

What was unique about the matter was that the LMIA process had just been introduced. Four people, all familiar with the legal area in general, including a former official that approved similar applications for the government in the past, were involved. We prepared, checked and rechecked the paperwork, as did the employer’s representative. It complied with the rules perfectly.

Result? It was rejected.

Using Foreign Workers To Keep Business Moving

Some background. The LMIA process is a result of backlash in 2014 regarding foreign workers in the food industry. The knee jerk reaction to the use of foreign workers is that they are stealing Canadian jobs. The argument goes that you should be able to find some Canadian, somewhere to fill a job. And you know what? This is probably true. But people forget the “ready, willing and able,” part of the foreign worker scenario.

Is there probably a Canadian who knows how to do any job in Canada? Yes. But what happens if that Canadian lives in Vancouver with a wife and three kids, while the job is in North Bay, Ontario? Or what happens if the job is in Halifax, and a qualified person from Fredericton doesn’t want to relocate? Or what happens if ten jobs in Saskatoon are available and only six Canadians apply and are qualified? How do you fill the other four spots and keep your business flowing?

These issues are what the foreign worker program is supposed to address. It is supposed to allow businesses to keep moving forward if they can’t find someone ready, willing and able to fill a spot. As for the case in question, our client spent thousands of dollars on national and social media advertising trying to locate a candidate. They complied with all of the requirements. It was a fact that the industrial facility could not locate a qualified skilled craftsman who knew how to operate the machinery and train others on its operation. The client’s business was thus impaired.

Meanwhile, we trudged through the blizzard of paperwork required. We replaced old forms with new ones, jumped through the hoops the department erected – such as the added requirement to provide a “transition plan” – and mustered the Herculean effort needed to deal with changing rules regarding the application. Not only was the application rejected, but the paperwork that we spent months to prepare was destroyed. Only the payment was returned to us. Destroying the paperwork effectively left us confused and thinking we would be unable to appeal this decision to the courts, since there was no record of the application in the department’s possession.

Where To Go From Here?

In notifying us that the application was rejected, the Temporary Foreign Workers unit raised several objections to items in our application. We checked our copy only to learn none of them were true. We therefore called the department to check on what happened. Then an official informed us that some further mistakes had been made on the application. We checked our copy of the application again. No such mistakes. Despite our repeated calls and emails to the responsible parties, nothing happened and no response came.

What were we to do? The records were destroyed. Correcting what was submitted was not working. Filing a new application presented the problem that if the government didn’t follow the rules the first time, there was no assurance they would follow them on the next round. Fool me once, so forth.

Which brings me back to leadership and enforcement – tending to your own garden. Is it so hard for a government department to admit a mistake and correct it? Would it have been such a big deal for the pertinent leader here to simply look at the file and ask us to correct what they deemed deficient, rather than throw the file in the trash and reject it out of hand?

This isn’t about the lawyers. We’ll carry on. In this case, the burden fell on an industrial plant and its dozen employees. They paid the price in lost productivity and a threat to their livelihoods.

This case represents a bad start to a new government program. Let’s hope similar actions won’t be repeated.

Andy Semotiuk is a Canadian and US immigration lawyer with immigration law firm Pace Immigration. You can learn more about Andy at My Work Visa.

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