CITATION: Dalwadi v. Minister of Labour, Immigration, Training and Skills Development 2023 ONSC 1759
DIVISIONAL COURT FILE NO.: 370/22, 396/22, 371/22, 372/22, 397/22
DATE: 2023/03/17
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
D. Edwards, Ryan Bell, and Leiper JJ.
370/22
BETWEEN:
Arjun Bhupendrakumar Dalwadi
Applicant
– and –
The Minister of Labour, Immigration, Training and Skills Development
Respondent
Rafeena Rashid, for all Applicants
Michael J. Sims and Mihaela Ion, for the Respondent
369/22
BETWEEN:
Satyam Ashokbhai Kanani
Applicant
– and –
The Minister of Labour, Immigration, Training and Skills Development
Respondent
371/22
BETWEEN:
Vipul Rajnikant Panchal
Applicant
– and –
The Minister of Labour, Immigration, Training and Skills Development
Respondent
372/22
BETWEEN:
Vasudevbhai Dasharathbhai Patel
Applicant
– and –
The Minister of Labour, Immigration, Training and Skills Development
Respondent
397/22
BETWEEN:
Aleksei Upadyshev
Applicant
– and –
The Minister of Labour, Immigration, Training and Skills Development
Respondent
HEARD at Toronto: March 8, 2023 (via Zoom)
REASONS FOR JUDGMENT
RYAN BELL J.
Overview
[1] The Ontario Immigrant Nominee Program (the “Program”) is an economic immigration selection program that promotes the Ministry of Labour, Immigration, Training and Skills Development’s mandate of attracting skilled and in-demand newcomers to Ontario in order to maximize the benefits of immigration to the province. The Program nominates foreign nationals who meet criteria intended to benefit Ontario’s economy to Immigration, Refugees and Citizenship Canada (“IRCC”), allowing the nominee to apply for permanent residence.
[2] The applicants are foreign nationals who received job offer-based nominations from the Program and applied for permanent residence. With their nominations, each applicant received a work permit support letter (“WPSL”), which was valid for six months.
[3] The applicants’ nominations were cancelled by the Program in January 2022 on the basis that they had failed to comply with the conditions attached to their nominations. Each of the applicants requested an internal review of the decision to cancel their nominations. The cancellations were confirmed by an internal reviewer.
[4] There are two issues on these applications:
- Were the decisions to confirm the cancellation of the applicants’ nominations reasonable?
- Was there a breach of the applicants’ rights to procedural fairness?
[5] For the following reasons, I conclude that the decisions to confirm the cancellation of the applicants’ nominations were reasonable and there was no breach of the applicants’ rights to procedural fairness. Accordingly, I would dismiss the applications for judicial review.
Legislative Framework
[6] The Program was created under the Ontario Immigration Act, 2015[^1], which enables the Minister to create a selection program by regulation if the province has entered into an agreement with the federal government under s. 8(1) of the Immigration and Refugee Protection Act[^2]. The current agreement is the Canada-Ontario Immigration Agreement.
[7] The Program has multiple “streams” for people to apply. For any of the streams, if an applicant meets the criteria, the director of the Program issues a certificate of nomination. The certificate is used by the applicant to apply for permanent residence.
[8] Upon granting an application, the director may attach to the approval the conditions and restrictions the director considers advisable: Ontario Immigration Act, 2015, s. 17(1). The holder of an approval is required to comply with any conditions and restrictions attached to the approval: Act, s. 17(2).
[9] Section 18 of the Act provides:
(1) The director may cancel an approval if,
(a) the director is of the opinion that it was issued based on mistaken, false or incorrect information;
(b) the holder of the approval fails to comply with the conditions or restrictions attached to the approval;
(c) the approval is an approval of a foreign national that is subject to the condition that an approved employer employ the individual and,
(i) the employer requests the director in writing to cancel the approval, or
(ii) the employer’s approval is cancelled; or
(d) the approval is an approval of a foreign national that is subject to another approval and the other approval is cancelled.
(2) Upon cancelling an approval, the director shall give a written notice of the cancellation to the holder of the approval.
[10] A person may request an internal review of a decision or order of the director: Act, s. 34. The internal review requirements are set out at s. 10 of O. Reg. 421/17 which provides:
(1) A requester of an internal review under section 34 of the Act of a decision or an order,
(a) shall identify in the request an error in the decision or order that, if not made, would have resulted in the decision or order being decided differently; and
(b) shall not include in the request any evidence that was not adduced before the decision or order was made unless the evidence was not reasonably available at that time.
(2) The individual conducting an internal review under subsection (1) shall consider only,
(a) any error that clause 1(a) requires the requester to identify; and
(b) the evidence that the requester is entitled to include in the request.
Background
[11] The applicants were in the “Foreign Worker with a Job Offer” stream of the Program. That stream required two approvals: (i) approval resulting in a certificate of nomination; and (ii) approval of an employment position that is tied to the nominee. Only the first approval is relevant here.
[12] The applicants received their nominations between January 30 and March 2, 2020. In each case, the nomination approval letter specified that the nomination was subject to the following conditions:
You must continue to demonstrate on a reasonable basis an intention to reside in Ontario.
You must be employed in the approved employment position as of the date of your nomination, if you are already working for the employer in the approved employment position, or on the date you obtain a work permit and begin working in the approved employment position.
You must continue to be employed in the approved employment position during the nomination period (i.e. until you receive permanent residence). This means that your terms of employment must remain consistent throughout the nomination period. This includes your:
• employer;
• position, title and duties;
• wage;
• hours of work; and
• work location.
[13] Condition 2 was at issue on the internal review and is the focus of these applications for judicial review.
[14] The nomination approval letter also provided:
Ontario nominees can apply for a temporary work permit while their permanent residence application is being processed. IRCC is solely responsible for the processing of temporary work permits. A provincial nomination does not guarantee approval of a temporary work permit application.
Provincial Nominees who are employed or have received a job offer are eligible to apply to IRCC for temporary work permits and are exempt from the requirement to obtain a Labour Market Impact Assessment under section 204(c) of the Immigration and Refugee Protection Regulations.
[15] The nomination approval letter was accompanied by a WPSL. The WPSL provided: “This letter must be used in support of a work permit application within 6 months to remain valid.”
[16] In April 2021, each applicant received an inquiry from the Program, asking whether the applicant had applied for and received a work permit and commenced employment. The applicants responded by explaining that their WPSL had expired while they were residing outside Canada and they were unable to commence employment due to the COVID-19 pandemic. The applicants requested new WPSLs so that they could apply for work permits. No new WPSLs were provided.
[17] On October 26, 2021, the Program sent each applicant a Notice of Intent to Cancel Approval of Nomination because they had not confirmed they had been issued a work permit and started working for the employer. The applicants and their employer responded to the Notices and again requested new WSPLs to enable the applicants to apply for work permits. No new WPSLs were provided.
[18] On December 8, 2021, the Program updated the conditions for job offer stream nominations to expressly provide that the applicant/nominee must “apply for a work permit within six (6) months and begin working in the approved employment position within ten (10) months from the date of your nomination, if you are not already working for the employer.”
[19] In mid-January, the applicants were notified that their certificates of nomination were cancelled “as you have failed to comply with the conditions attached to the nomination.” In particular, each cancellation noted that, “[y]ou have not applied for, nor have you obtained a work permit and you have not begun working in the approved employment position. As such, you no longer meet the conditions of your nomination.”
[20] The applicants then initiated the request for internal review process under s. 34 of the Act. On June 1, 2022, the Internal Reviewer appointed under the Act confirmed the director’s decision to cancel the approval of each applicant’s certificate of nomination.
The Internal Review
[21] On the internal review, the applicants identified two errors in the director’s decisions that they asserted, if not made, would have resulted in the decisions being determined differently.
[22] First, the applicants submitted that condition 2 did not expressly state that they “must” apply for a work permit after receiving their nomination. The follow up inquiries they received did not make it clear that their nominations would be cancelled if they did not obtain a work permit and travel to Canada and begin working. The ambiguity identified by the applicants was rectified in December 2021, when the conditions for approval were updated: the updates explicitly state that a foreign national must apply for a work permit within six months of the position being approved and a foreign national must advise the Program if they have not started working in the approved position within ten months of receiving their certificate of nomination.
[23] Second, the applicants raised the impact of the COVID-19 pandemic and the director’s failure to take into account the anxiety surrounding international travel, moving to a country alone, and indefinite separation from family members during a pandemic.
[24] The Internal Reviewer confirmed the decisions to cancel the applicants’ nominations. In his view, under the applicants’ interpretation, a nominee with no obligation to apply for a work permit during the nomination period could remain in their home country until their application for permanent residence was addressed. At that time, the permanent resident’s conditions and restrictions would expire and the former nominee would not be subject to any requirement to maintain employment in the approved employment position. The Internal Reviewer concluded that “[s]uch a result is clearly not consistent with the intent and purpose of the [Program].”
[25] The Interval Reviewer acknowledged the updated conditions for approval but determined that the updated conditions for approval were not applied retroactively to the applicants: in his view, the updated conditions “merely made explicit what was clearly implicit.”
[26] The Internal Reviewer noted that neither the applicants nor their employer had provided any evidence to support a claim that the particular applicant was not physically or legally able to apply for a work permit or request an extension to apply for a work permit due to the pandemic. The Internal Reviewer observed that Canada has continued accept and admit foreign nationals who hold valid work permits throughout the pandemic in accordance with guidance issued by IRCC.
Extension of Time
[27] Mr. Kanani and Mr. Upadyshev seek an extension of time to judicially review the decisions to confirm the cancellation of their nominations. These requests are not opposed by the Minister. The requests for an extension of time are granted.
Standard of Review
[28] In respect of the Internal Reviewer’s decision to confirm the cancellation of the applicants’ nominations, the standard of review is reasonableness: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at para. 16. The parties agree that where issues of procedural fairness are raised on judicial review, the decision is either procedurally fair or it is not: Bastien v. University of Toronto, 2021 ONSC 4854, at para. 44.
Analysis
The Internal Reviewer’s Decisions were Reasonable
[29] The applicants submit that the Internal Reviewer’s decisions to confirm the cancellation of their nominations are unreasonable because: (i) applying for a work permit was not a condition of their nominations; (ii) the condition to apply for a work permit (as a result of the December 2021 update) was retroactively applied to the applicants; and (iii) the Program did not provide the applicants with the means to apply for work permits once the Program identified that it intended to cancel their nominations.
[30] I do not agree. The Internal Reviewer was not satisfied that the applicants had identified an error that, if not made, would have resulted in the decision being determined differently. The Internal Reviewer’s findings and conclusions were available to him on the record and his decisions to confirm the cancellations of the applicants’ nominations are entitled to deference.
[31] The Internal Reviewer considered and rejected the applicants’ submission that applying for a work permit was not a condition of their nominations. The Internal Reviewer observed that the intent and purpose of the Program’s job offer-based stream is to assist employers who are unable to obtain necessary talent domestically, to fill such positions with a “suitable foreign national.” He explained that the purpose of condition 2 is to ensure that the intent and purpose of the job offer-based stream is fulfilled.
[32] The Internal Reviewer continued:
The condition that your client be employed in the approved employment position on the date he obtained a work permit and began working in the approved employment position clearly implies an obligation on your client to take reasonable steps to apply for and obtain a work permit within the period of validity of the work permit support letter (or to apply for an extension of same) and to take up the approved employment position as soon as possible during the nomination period).
[33] The Internal Reviewer concluded that the applicants’ interpretation would not be consistent with the intent and purpose of the Program. The Internal Reviewer considered the purpose of the Program and the job offer-based stream, the certificate of nomination letters, the WPSLs and the fact that the WPSLs were valid for a period of six months, the governing legislation, and the Program website as it read on the applicants’ application date. These were findings and conclusions available to the Internal Reviewer on the record before him and they are entitled to deference on these applications for judicial review.
[34] The Internal Reviewer noted that in response to the Notice of Intent to Cancel Approval, the applicants indicated that they did not apply for or obtain a work permit due to reasons related to the COVID-19 pandemic. The applicants did not, however, provide any evidence to support a claim that they were not physically or legally able to apply for a work permit or request an extension to apply for a work permit due to COVID-19. By contrast, the applicants did provide evidence that they submitted their permanent residency application to the IRCC. In his decisions, the Internal Reviewer explained that “Canada has continued to accept/admit foreign nationals who hold valid work permits throughout the COVID-19 pandemic in accordance with guidance issued by [IRCC].”
[35] The Internal Reviewer stated in his decisions that the December 2021 updated conditions were not applied retroactively to the applicants. His finding that the “updated conditions/restrictions merely made explicit what was clearly implicit” was one that was available to him on the record before him. It is not the role of this court on judicial review to substitute our views for those of the Internal Reviewer.
No Breach of Procedural Fairness
[36] The applicants submit that the “retrospective application” and lack of notice of the updated conditions and the requirement to apply for a work permit amount to a breach of procedural fairness. I would not give effect to this submission. The conditions remained consistent throughout the period of the applicants’ nominations. As the Internal Reviewer explained, the updated conditions were not applied to the applicants: the updated conditions merely made explicit what was implicit having regard to the purpose of the Program, the legislation, and the applicable documents.
[37] I would also not give effect to the submission that the director’s failure or refusal to provide new WPSLs to the applicants before cancelling their nominations amounts to a breach of procedural fairness. The director was not required to provide new WPSLs. The director provided the applicants with notice of intent to cancel their nominations, the reasons for doing so, and an opportunity to respond. The director considered the information provided by the applicants, including their alleged inability to apply for work permits because of the COVID-19 pandemic.
Disposition
[38] I would dismiss the applications for judicial review. In accordance with the parties’ agreement, costs are awarded to the Minister in the amount of $10,000 all inclusive, payable by the applicants.
Justice Ryan Bell
I agree _______________________________
Justice D. Edwards
I agree _______________________________
Released: March 17, 2023 Justice Leiper
CITATION: Dalwadi v. Minister of Labour, Immigration, Training and Skills Development 2023 ONSC 1759
DIVISIONAL COURT FILE NO. 370/22, 396/22, 371/22, 372/22, 397/22
DATE: 2023/03/17
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
D. Edwards, Ryan Bell, and Leiper, JJ.
370/22
BETWEEN:
Arjun Bhupendrakumar Dalwadi
Applicant
– and –
The Minister of Labour, Immigration, Training and Skills Development
Respondent
396/22
BETWEEN:
Satyam Ashokbhai Kanani
Applicant
– and –
The Minister of Labour, Immigration, Training and Skills Development
Respondent
371/22
BETWEEN:
Vipul Rajnikant Panchal
Applicant
– and –
The Minister of Labour, Immigration, Training and Skills Development
Respondent
372/22
BETWEEN:
Vasudevbhai Dasharathbhai Patel
Applicant
– and –
The Minister of Labour, Immigration, Training and Skills Development
Respondent
397/22
BETWEEN:
Aleksei Upadyshev
Applicant
– and –
The Minister of Labour, Immigration, Training and Skills Development
Respondent
REASONS FOR JUDGMENT
Ryan Bell J.
Released: March 17, 2023
[^1]: S.O. 2015, c. 8.
[^2]: S.C. 2001, c. 27.