SIU Federal Court Filing Regarding Foreign Seafarers on board CTMA Vessels

November 14, 2019
*this document has been amended to protect the identity of those mentioned*

Court File No. IMM-6710-19

FEDERAL COURT

 

Seafarers’ International Union of Canada

Applicant

The Minister of Immigration, Refugees and Citizenship Canada, The Minister of Public Safety and Emergency Preparedness Canada, and The Minister of Employment, Workforce Development and Labour Canada

Respondents

APPLICATION FOR LEAVE and for JUDICIAL REVIEW

ON NOTICE TO:  Coopérative de transport maritime et aérien

435, chemin Avila-Arseneau

Cap-aux-Meules, QC G4T IJ3

 

XXXXXXXXX

   XXXXXXXXXX

  XXXXXXX

 

TO THE RESPONDENTS:

AN APPLICATION FOR LEAVE TO COMMENCE AN APPLICATION FOR JUDICIAL REVIEW has been commenced by the applicants under SUBSECTION 72(1) OF THE IMMIGRATION AND REFUGEE PROTECTION ACT.

UNLESS A JUDGE OTHERWISE DIRECTS, THIS APPLICATION FOR LEAVE will be disposed of without personal appearance by the parties, in accordance with paragraph 72(2)(d) of the Immigration and Refugee Protection Act.

IF YOU WISH TO OPPOSE THIS APPLICATION FOR LEAVE, you or a solicitor authorized to practice in Canada and acting for you must prepare a Notice of Appearance in Form IR-2 prescribed by the Federal Courts Citizenship, Immigration and Refugee Protection Rules, serve it on the tribunal and the applicant’s solicitor or, if the applicant does not have a solicitor, serve it on the applicant, and file it, with proof after service, in the Registry, within 10 days after the day on which this application for leave is served.

lF YOU FAIL TO DO SO, the Court may nevertheless dispose of this application for leave and, if the leave is granted, of the subsequent application for judicial review without further notice to you.

Note: Copies of the relevant Rules of Court, information on the local office of the Court and other necessary information may be obtained from any local office of the Federal Court or the Registry in Ottawa, telephone: (613) 992-4238.

The applicant seeks leave of the Court to commence an application for judicial review of the decision or decisions (the “Decision”) of officers of Canada Border Services Agency (“CBSA”) and/or Immigration, Refugees and Citizenship Canada (“IRCC”) and/or Employment and Social Development Canada (“ESDC”)(hereinafter, the Decision-maker is known as the “Tribunal”) to allow XXXXXXX (“XXXXXX”) to enter or remain in Canada to work in Canada as unlicensed crew aboard vessels owned or operated by the Cooperative de transport maritime et aerien and/or its subsidiaries (including C.T.M.A. Traversier Ltee and Navigation Madeleine Inc.)(collectively, the “CTMA”) by issuing an improper and invalid Labour Market Impact Assessment (“LMIA”) and then relying on the LMIA to issue a work permit (the “Work Permit”). The LMIA for XXXXX was likely issued in or around the months of June or July 2019; however, the actual date is outside the knowledge of the applicant. The date on which the Work Permit for XXXXX was issued is unknown.

The SIU became aware of the Decision on or around October 22, 2019.

The Tribunal is composed of unknown officers at CBSA and/or IRCC and/or ESDC, which are as follows:

Canada Border Services Agency

191 Laurier Avenue West, 6th Floor

Ottawa, ON KIA OL8

Phone: 1-800-367-5693

 

Immigration, Refugees and Citizenship Canada

365 Laurier Avenue West

Ottawa, ON KIA ILI

Phone: 1-888-242-2100

 

Employment and Social Development Canada

140 Promenade du Portage

Gatineau, QC KIA OJ9

Phone: 1-800-622-6232

 

The Tribunal’s file number in relation to this Application for Leave and Judicial Review is as follows:

  • ESDC: LMIA #unknown
  • CBSA: Work permit #unknown
  • IRCC: Unknown

If this Application for Leave is granted, the applicant seeks the following relief by way of a judicial review:

  1. An order granting the application for judicial review and setting aside the LMIA and the Work Permit issued to XXXXX.
  2. A declaration that the LMIA is invalid, as the LMIA was based, inter alia, on improper and invalid considerations; misapprehension of the law and government policy; misrepresentations; and/or fraud.
  3. A declaration that the Work Permit is invalid, as the Decision to issue such permit without an LMIA or in reliance on an improper and invalid LMIA was based, inter alia, on improper and invalid considerations; misapprehension of the law and government policy; misrepresentations; and/or fraud.
  4. Such further and other relief as counsel may advise and this Honourable Court may permit.

If the application for leave is granted, the application for judicial review is to be based on the following grounds:

The Applicant

  1. The applicant, Seafarers’ International Union of Canada (“SIU”), is a trade union which represents the majority of unlicensed seafarers in the maritime field in Canada.
  2. At all material times, the SIU had and continues to have members or prospective members, being Canadian citizens or permanent residents, who were unemployed or underemployed, who were seeking work, and who were available and qualified to work as unlicensed crew on the vessels owned or operated by the CTMA (the “CTMA Fleet”), including to fill the position(s) held by XXXXX.
  3. The SIU and its members have a special interest in ensuring that the maximum job opportunities in the Canadian maritime labour market are made available to permanent residents and citizens of Canada, including SIU members and prospective members.
  4. The SIU is the certified bargaining agent for the unlicensed employees employed aboard the CTMA Fleet (the “Bargaining Unit”).
  5. The SIU and the CTMA have entered into two collective agreements governing the terms and conditions of employment for Bargaining Unit members (the “Collective Agreements”). The Collective Agreements provide that the CTMA may recruit Bargaining Unit employees from the Magdalen Islands, but that if it is unable to do so, it must contact the SIU, and the SIU will supply personnel.

    The Respondents

  6. The respondent, the Minister of Public Safety and Emergency Preparedness Canada, is responsible for CBSA, a federal agency charged with ensuring, inter alia, Canada’s security and prosperity by managing the access of people and goods to and from Canada.

  7. The respondent, the Minister of Immigration, Refugees and Citizenship Canada, is responsible for IRCC, a federal agency that screens and processes, inter alia, temporary foreign worker applications for Canada. It does so in large part with the aid of the Temporary Foreign Worker program at ESDC.

  8. The respondent, the Minister of Employment, Workforce Development and Labour Canada, is responsible for ESDC, a federal agency charged, inter alia, with conducting LMIAs in relation to applications for temporary work permits.

  9. The CBSA, ESDC and IRCC have a joint operational mandate to enforce the immigration laws and regulations of Canada with respect to issuing work permits to foreign workers including Foreign Crew, with IRCC holding the primary policy mandate.

    CTMA

  10. The CTMA is a cooperative association under the Cooperatives Act, CQLR, c C-67 .2. The principal activity of the CTMA is the transportation of persons and goods between the Magdalen Islands and other parts of Quebec and Canada.

  11. The CTMA Fleet includes the Madeleine, the Vacancier, the Voyageur, and the Clipper Ranger. The Madeleine and the Vacancier are passenger ferries. The Clipper Ranger and the Voyageur are cargo ferries. All of these vessels are Canadian flagged.

    XXXXX

  12. XXXXX is a Mauritian national. He is not a citizen or permanent resident of Canada, and is not from the Magdalen Islands. He was born on XXXXX.

  13. At all relevant times, XXXXX was employed by the CTMA and was a member of the Bargaining Unit. He worked on the Madeleine. His job title is “Serveur” (Server) and “Equipage securite” (Security team). As of the date of the filing of this Application, XXXXX continues to be employed by the CTMA.

    The Legislative Framework

  14.  Under s 196 of the Immigration and Refugee Protection Regulations, SORJ 2002-227 (the “Regulations”), a foreign national must not work in Canada unless authorized to do so by a work permit or the Regulations.

  15. Under ss 200 and 203 of the Regulations, in order to issue a work permit, ESDC must prepare an LMIA in which it determines, inter alia, that the employment of the foreign national is likely to have a neutral or positive effect on the labour market in Canada.

  16. Under s 203 of the Regulations, the LMIA provided by ESDC shall be based on, inter alia, the following factors:

a. whether the employment of the foreign national will or is likely to result in direct job creation or job retention for Canadian citizens or permanent residents;

b. whether the employment of the foreign national will or is likely to result in the development or transfer of skills and knowledge for the benefit of Canadian citizens or permanent residents;

c. whether the employment of the foreign national is likely to fill a labour shortage;

d. whether the wages offered to the foreign national are consistent with the prevailing wage rate for the occupation and whether the working conditions meet generally accepted Canadian standards;

e. whether the employer will hire or train Canadian citizens or permanent residents or has made, or has agreed to make, reasonable efforts to do

so;

f. whether the employment of the foreign national is likely to adversely affect the settlement of any labour dispute in progress or the employment of any person involved in the dispute; and

g. whether the employer has fulfilled or has made reasonable efforts to fulfill any commitments made, in the context of any previous application for an LMIA.

17. ESDC program requirements provide that an employer must conduct recruitment efforts to hire Canadians or permanent residents before applying for an LMIA.

18. Under s 200(3)(a) of the Regulations, a work permit may not be issued if the Tribunal determines that there are reasonable grounds to believe that the foreign national is unable to perform the work sought.

19. The employment of seafarers is regulated by the Canada Shipping Act, 2001, SC 2001, c 26 and regulations issued under that Act, including the Marine Personnel Regulations, SOR/2007-115 (the “CSA”). The CSA requires that seafarers employed on Canadian vessels hold certifications issued by Transport Canada.

Issuance of Improper and Invalid LMIA; Issuance of Work Permit in Reliance on this LMIA

20. The CTMA applied for an LMIA for XXXXX. In or around the months of June or July 2019 (as noted above, the exact date is unknown to the applicant), the Tribunal issued a positive LMIA for XXXXX. The Tribunal relied on this LMIA to issue a work permit for XXXXX.

21. The CTMA did not engage in recruitment efforts to hire Canadians or permanent residents before applying for the LMIA. In the alternative, the CTMA’s recruitment efforts did not satisfy ESDC program requirements.

22. In particular, the CTMA did not contact the SIU to dispatch a seafarer to fill the job position(s) that were eventually filled by XXXXX, in violation of the Collective Agreements.

23. The applicant says that in light of the CTMA’s failure to engage in recruitment efforts that satisfy ESDC program requirements, and, in particular, the CTMA’s failure to contact the SIU to supply personnel, a positive LMIA should not have been issued, as ESDC should have determined that the criteria set out in sections 203(3)(a), (c), and (e) of the Regulations were not satisfied.

24. Furthermore, the CTMA created a labour dispute between itself and the SIU when it decided that it would not comply with the Collective Agreements with respect to the job position(s) that was eventually filled by XXXXX. The Tribunal’s issuance of the LMIA and the Work Pem1it, and the employment of XXXXX in the CTMA Fleet, have adversely affected the settlement of this labour dispute, Accordingly, the applicant says that a positive LMIA should not have been issued, as ESDC should have determined that the criterion set out in section 203(3)(£) of the Regulations was not satisfied.

25. XXXXX does not possess the certification(s) that are required under the CSA with respect to his job responsibilities. The National Occupational Classification for the LMIA does not correspond to the duties and responsibilities of the job position(s) that were filled by XXXXX. Accordingly, pursuant to section 200(3)(a) of the Regulations, the Work Permit should not have been issued, as the Tribunal should have determined that there were reasonable grounds to believe that XXXXX was unable to perform the work sought.

26. The employment of the foreign crew, including XXXXX, in the CTMA Fleet has had and continues to have a negative effect on the maritime labour market in Canada.

27. The applicant says that the Tribunal s Decision to issue the LMIA and the Work Permit for XXXXX was based, inter alia, on improper and invalid considerations; misapprehension of the law and government policy; misrepresentations; and/or fraud on the part of the CTMA.

28. The CTMA intends to continue to apply for LMIAs and work permits in order to continue to hire foreign nationals to work in Bargaining Unit positions in the CTMA Fleet in 2020 and beyond.

29. The applicant pleads and relies on:

a. the Regulations, including sections 8, 196, 200 and 203 ;

b. the Immigration and Refi.1gee Protection Act, SC 2001 , c 27, including section 72;

c. the Federal Courts Act, RSC 1985, c F-7, including sections 18 and 18.1;

d. the Federal Courts Rules, SOR/98-106;

e. the Federal Courts Citizenship, Immigration and Refugee Protection Rules;

f. relevant government policies; and

g. the principles of administrative law.

The applicant has not received written reasons from the Tribunal.

If the application for leave is granted, the applicant proposes that the application for judicial review be heard at Vancouver, in the English language.

DATED AT VANCOUVER this 6th day of November, 2019.