and Skills Development), 2025 ONSC 1284
DIVISIONAL COURT FILE NO.: 179/24
DATE: February 28, 2025
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
D.L. Corbett, Lococo and MacNeil JJ.
BETWEEN: )
MINGRUI ZHU ) Peter Salerno and Madison Gateman,
Applicant ) for the Applicant
- and - )
MINISTER OF LABOUR, IMMIGRATION, ) Michael J. Sims and Matthew Chung,
TRAINING AND SKILLS DEVELOPMENT ) for the Respondent
Respondent )
) HEARD at Toronto:
) November 25, 2024 )
REASONS FOR DECISION
MacNeil J.:
INTRODUCTION
This is a judicial review of a decision by an Internal Reviewer of the Ministry of Labour, Immigration, Training and Skills Development, dated January 30, 2024, confirming a decision made by the director appointed under the Ontario Immigration Act, 2015, S.O. 2015, c. 8 (“the Act”) to cancel the Applicant’s nomination approval under the Ontario Immigrant Nominee Program (“the OINP”) (“the Decision”). By the approval, the Applicant, a Chinese citizen, was enabled to apply for a work permit and, if approved, come to Canada and begin employment in a position as a Software Engineer with a graphics display company located in Markham, Ontario (“the Employer”). The Internal Reviewer held that the director’s decision to cancel the approval of the Applicant’s nomination was correct as the Applicant no longer met the conditions under which his application was approved.
The Applicant seeks an order quashing the decision of the Internal Reviewer and referring the matter back for a redetermination by a different officer.
At the outset of the hearing, on consent, the title of proceeding was amended to change the Respondent’s name from the “Attorney General of Ontario” to the “Minister of Labour, Immigration, Training and Skills Development”.
FACTS
By correspondence dated August 18, 2021, the Applicant’s application for a certificate of nomination under the OINP by way of the “Employer Job Offer: Foreign Worker Stream” was approved by the director, subject to three conditions (“the Nomination Approval Letter”). Only the second condition (“the Condition”) is at issue in this proceeding, which was:
You must be employed in the approved employment position as of the date of your nomination, if you are already working for the employer; or on the date you obtain a work permit and begin working in the approved employment position, if you are not already working for the employer.
The nomination was based on filling the approved employment position with the Employer.
The Nomination Approval Letter stated that the Applicant’s nomination may be cancelled if:
• the above conditions and/or restrictions are not met;
• the employer withdraws your job offer;
• you decline your job offer;
• your employment is terminated either by you or the employer.
The letter further advised that the Applicant was now eligible to apply to Immigration, Refugees and Citizenship Canada (“IRCC”) for permanent residence in Canada as a Provincial Nominee.
- On the same day, August 18, 2021, the Applicant was issued a Work Permit Support Letter respecting the Applicant’s approved position as a “Software Engineer 2173” with the Employer. The Employer was sent a separate letter, also dated August 18, 2021, approving the employment position for the Applicant under the OINP. The Work Permit Support Letter stated that it must be used in support of a work permit application within six months to remain valid. It further stated:
The aforementioned individual was approved by Ontario under the Ontario Immigrant Nominee Program (OINP). Ontario confirms that all required factors for provincial support have been met, specifically:
• That the nominee is urgently required by the PT-based employer listed above;
• That the job offer is genuine and will create economic benefits or opportunities;
• That the employment is not part-time or seasonal; and
• That the wages and working conditions would be sufficient to attract and retain Canadian citizens.
- The Applicant did not apply for a work permit within six months of August 18, 2021.
Cancellation of the Approval by the Director
- On January 30, 2023, the OINP sent the Applicant a letter requesting information as part of a status review, including:
(i) to confirm if the Applicant was currently working in the approved employment position and, if not, to explain why;
(ii) if the Applicant had not obtained a work permit, to explain why and provide an acknowledgement of receipt letter and any other correspondence from IRCC regarding his work permit application; a copy of receipt of payment to IRCC; and any other correspondence from IRCC regarding his work permit application;
(iii) to advise if his application for a temporary work permit was denied and, if so, to provide the reasons for the denial; and
(iv) to indicate whether he had applied for and/or received permanent resident status.
A similar letter, dated January 23, 2023, had been sent to the Employer.
On February 6, 2023, the Applicant responded to the OINP information request. He stated that he is currently in China, waiting for final approval of his permanent residence status. He explained that, when he received the Nomination Approval Letter and the Work Permit Support Letter, the Canadian Embassy in Beijing was closed due to COVID-19 and Chinese citizens were forbidden to leave the country without permanent resident status. So, he immediately applied for permanent residence instead of a work permit. He hoped to get the permanent residence status soon and arrive in Canada to begin his employment with the Employer.
The Employer had responded to the OINP by emailed correspondence, dated January 31, 2023, advising of very similar information.
On June 30, 2023, the OINP sent the Applicant a Notice of Intent to Cancel Approval of Nomination (“NOICA”). The NOICA indicated, among other things, that, based on the information and documentation provided, it appeared the Applicant no longer met the conditions of his nomination, stating: “In particular, you did not commence employment in the approved employment position, and you did not apply for or obtain a work permit within the validity period (6 months) of the Work Permit Support Letter.” The NOICA provided the Applicant with 30 days to provide additional information or documentation in response to the OINP’s concerns.
By letter dated July 5, 2023, the Applicant responded to the NOICA. He stated that he could not leave his family alone and go to Canada to work during the COVID-19 pandemic and he described his family responsibilities during that time. The Applicant explained that, as a result, he had “decided to postpone” his work permit application “and reassess the situation in early 2022”. He further advised that, in December 2021, both of his parents contracted COVID-19 and were hospitalized, and he had spent most of his time at the hospital attending to them and finding “ways to provide basic necessities” for his family. He then stated: “Due to these circumstances, I missed the six-month deadline to apply for a work permit.”
In his July 5 letter, the Applicant advised that, at the time he received the Nomination Approval Letter, only individuals with foreign passports and foreign permanent resident status were eligible to leave China and so he “immediately submitted” his application for permanent resident status on September 26, 2021. He stated that he had submitted his work permit application at the Beijing Embassy on July 3, 2023.
The Employer also submitted a letter, dated July 5, 2023, providing a similar response as the Applicant’s letter of July 5. (Both July 5 letters were sent to the OINP by the Applicant by email dated July 7, 2023.)
By correspondence dated September 25, 2023, the OINP wrote to the Applicant advising that the director was cancelling his certificate of nomination for failing to comply with the conditions attached to the nomination. The letter read, in part:
The condition that you are employed in the approved employment position on the date you obtain a work permit and begin working in the approved employment position implied an obligation on you to take reasonable steps to apply for and obtain a work permit within the period of validity of the WPSL (or to apply for an extension of the same) and to take up the approved employment position as soon as possible during the nomination period.
You applied for a work permit on July 3, 2023, only after the Program sent you a post-nomination follow-up inquiry on January 30, 2023.
Please note that the OINP provided you with a WPSL to assist you in obtaining a work permit for the purposes of commencing your role in the approved employment position and complying with the conditions of approval. The WPSL was to be used in support of your work permit application within 6 months to remain valid.
You were provided a work permit support letter on August 18, 2021 that was valid for 6 months and expired on February 14, 2022.
You did not apply for a work permit prior to its expiration on February 14, 2022.
At present you have not obtained a work permit and arrived in Ontario, and at the time you applied to IRCC, your WPSL was no longer valid.
Due to the above, you no longer meet the terms and conditions under which you were nominated by the program.
On this basis, the director … is canceling your Certificate of Nomination as you have failed to comply with the conditions attached to the nomination.
[Emphasis in original.]
- The September 25 letter further advised the Applicant of his right to request an internal review of the director’s decision within 30 days.
Internal Review
On October 1, 2023, a request for an internal review was submitted on behalf of the Applicant. The request included correspondence dated September 28, 2023, setting out the Applicant’s submissions respecting purported errors made by the director in reaching the cancellation decision. One of the errors identified was that the Nomination Approval Letter did not “explicitly mandate that obtaining a work permit is mandatory”; therefore, the Applicant’s decision not to apply for a work permit was reasonable “given the ambiguity”. The Applicant submitted that “implied obligations should not be imposed on individuals”. It was also submitted that, since 2022, the director’s communication had become clearer, with new instructions explicitly stating the requirement for obtaining a work permit. The Applicant contended that this change “indirectly highlights the Director’s error in explaining the condition in the 2021 nominations”. Another identified error was that the director had erred in “interpreting the relationship” among the Nomination Approval Letter, the Work Permit Support Letter and the Confirmation of Nomination and tying the 6-month validity period of the Work Permit Support Letter to the Nomination Approval Letter.
By a notice of decision dated January 30, 2024, the Internal Reviewer dismissed the Applicant’s internal review request and confirmed the director’s decision to cancel the approval of the nomination on the basis that the Applicant had not satisfied the Condition.
In the Decision, the Internal Reviewer identified that the purpose of the internal review process was to ensure that the information supporting the application provided to the director was “correctly evaluated against the requirements set out in the Act and its regulations as of the date the application was submitted, July 24, 2021”.
The Internal Reviewer set out the process for internally reviewing a director’s decision which is found in s. 10 of O. Reg. 421/17, made under the Act. It requires an internal reviewer to consider only the error(s) identified by the requester and the evidence that the requester was entitled to include in the request, and decide whether the error(s) “if not made, would have resulted in the decision or order being decided differently”.
The Internal Reviewer found that the Applicant’s approval, issued on August 18, 2021, included a condition that he must be employed in the approved employment position on the date he obtains a work permit; and he was provided the Work Permit Support Letter on August 18, 2021, which was valid for 6 months, expiring on February 14, 2022.
The Internal Reviewer considered the Applicant’s February 6, 2023 response to the OINP request for information wherein he included an explanation that he had not started working for the Employer because the Canadian Embassy in Beijing was closed due to COVID-19 and Chinese citizens were forbidden to leave the country without permanent resident status, and that this was the reason why he applied for permanent residence instead of a work permit. The Internal Reviewer also considered the Applicant’s July 5, 2023 response to the NOICA wherein he indicated that he had postponed his work permit application because he could not leave his family alone and move to Canada to work during the pandemic, however, “he submitted a permanent residence application on September 21, 2021, and submitted a work permit application on July 3, 2023”.
The Internal Reviewer held that there was no evidence to support those explanations, and that the responses “confirmed” that the Applicant had not applied for a work permit before the end of the 6-month validity period of the Work Permit Support Letter.
The Internal Reviewer further found that the Applicant (and the Employer) had not provided any evidence to support a claim that he was “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.”
The Internal Reviewer considered whether the director had erred in finding that the Condition “implied an obligation” to take reasonable steps to apply for and obtain a work permit within the period of validity of the Work Permit Support Letter. The Internal Reviewer held that this was not an error. The Internal Reviewer acknowledged that the six-month time period was implicit but found that it was otherwise clear from a review of the Nomination Approval Letter, the Work Permit Support Letter, the OINP website, and the Employer Guide, when read together.
In the Decision, the Internal Reviewer set out the relevant language of the Act, and reviewed the objective of the OINP which is designed to assist employers in Ontario in circumstances where their “efforts to fill a position domestically were unsuccessful due to skills shortages” and the position is “urgently necessary” to the employer’s business.
The Internal Reviewer found that the Applicant’s suggested interpretation ran contrary to the intention of the OINP and that adopting same:
would mean that a nominee has no obligation to apply for a work permit during the nomination period and could remain in their home country until their application for permanent residence was granted (or refused). At that time, the permanent resident’s conditions/restrictions would expire, and the former nominee would not be subject to any requirement to maintain employment in the approved employment position or fulfill any other condition of nomination. Such a result is clearly not consistent with the intent and purpose of the OINP.
The Internal Reviewer found that, at the time of the NOICA and cancellation, the Applicant had not applied for and obtained the required work permit and begun working in the approved employment position, nor had he requested an extension.
The Internal Reviewer concluded that the Applicant had not identified an error in the director’s decision that, if not made, would have resulted in the decision being decided differently, and confirmed the decision to cancel the approval of the Applicant’s nomination.
THE LEGISLATION
Section 11(1) of the Act provides that the Minister may, by regulation, establish one or more selection programs if Ontario has entered into an authorizing agreement with the Federal government. Section 11(2) provides that a selection program so established shall set out a process for selecting foreign nationals for admission to Canada as either permanent residents or temporary residents.
Section 12(1) of the Act provides that a selection program must comply with the prescribed requirements. Section 12(3) states that such a program must not allow the director to grant an application for approval made by a foreign national under the program “unless the director is of the opinion that the foreign national will establish an economic connection with Ontario of the type that is prescribed for the program”.
By s. 13(2), the Act requires that an applicant specify in the application “the type of approval for which the applicant is applying and shall provide to the director all information with respect to the application”.
Section 17(1) of the Act states that, upon granting an application, the director may attach to the approval the conditions and restrictions that the director considers advisable; and s. 17(2) provides that the approved individual shall comply with the conditions and restrictions attached to the approval.
Section 18(1)(b) of the Act states that the director may cancel an approval if “the holder of the approval fails to comply with the conditions or restrictions attached to the approval”.
Section 20 provides a right to request an internal review under s. 34 to a holder of an approval that has been cancelled (unless exempted).
Section 34 provides, among other things, that before disposing of a request for an internal review, the individual conducting the review shall give the requester a “reasonable opportunity to make written submissions” (s. 34(8)); that, subject to regulations, the individual conducting an internal review is not required to hold a hearing or to afford the requester an opportunity for a hearing before exercising any powers under subsection (1) (s. 34(9)); and that, on an internal review, the individual conducting the review may confirm, revoke or vary the decision or order that is the subject of the review within the limits, if any, established by the regulations (s. 34(10)).
By s. 34(12) of the Act, the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, does not apply to a request for an internal review made under s. 34.
[O. Reg. 421/17](https://www.canlii.org/en/on/laws/regu/o-reg-421-17/latest/o-reg-421-17.html), made under the [Ontario Immigration Act, 2015](https://www.canlii.org/en/on/laws/stat/so-2015-c-8/latest/so-2015-c-8.html)
Section 2(1) of O. Reg. 421/17 – Approvals under the Ontario Immigrant Nominee Program and Other Matters, made under the Act, provides that one of the categories of applicants for a certificate of nomination is the “foreign worker category”. Section 2(1.1) requires that an applicant for a certificate of nomination in the foreign worker category shall, at the time of applying, also submit an application for approval of an employment position on behalf of a employer, if the applicant is or will be an employee.
Section 8 of the regulation addresses the cancellations of approvals. It reads:
(1) Before the director cancels an approval under section 18 of the Act, the director shall give written notice to the holder of the approval of the intention to cancel the approval, including,
(a) the reasons for the intended cancellation; and
(b) a request for the applicant to respond in writing within 30 days of receiving the notice.
(2) Before cancelling an approval under section 18 of the Act, the director shall consider the response, if any, that the holder of the approval provides within the time period specified in clause (1)(b).
(3) If, after considering a response from the holder of the approval, the director decides not to cancel the approval, the director shall give written notice of the decision to the holder of the approval.
(4) A notice given under subsection 18(2) of the Act shall include information about whether the applicant may request an internal review under the Act.
Section 10 sets the parameters of internal reviews. It states:
(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.
[O. Reg. 422/17](https://www.canlii.org/en/on/laws/regu/o-reg-422-17/latest/o-reg-422-17.html), made under the [Ontario Immigration Act, 2015](https://www.canlii.org/en/on/laws/stat/so-2015-c-8/latest/so-2015-c-8.html)
Section 4 of O. Reg. 422/17 - General, made under the Act, sets out the requirements for approval of an employment position. It reads, in part:
(1) The following criteria are prescribed for an application for approval of an employment position:
The employer’s business must have existed and been active for at least three years before the date of making the application.
The employer’s business must maintain a place of business in Ontario.
2.1 The anticipated employment activities related to the position must occur primarily in Ontario, unless the position is listed in the National Occupational Classification as occupation 73300 – Transport truck drivers or 73301 – Bus drivers, subway operators and other transit operators.
The position must be full-time and have an indeterminate duration.
The position must be urgently necessary to the employer’s business.
The position must be listed in the National Occupational Classification under Training, Education, Experience and Responsibilities (TEER) Category 0, 1, 2 or 3 or, if the applicant is applying in the in-demand skills category, the position must be a position listed in paragraph 1 of subsection 7(1).
If the director determines it is necessary, the employer must have made reasonable but unsuccessful efforts to fill the position with a Canadian citizen or permanent resident prior to offering the position to the applicant.
[Emphasis added.]
ISSUES
- There are four issues for determination by this Court:
(a) Did the Internal Reviewer breach procedural fairness by importing a mandatory obligation into the OINP’s conditions?
(b) Did the Internal Reviewer unreasonably dismiss probative evidence which supported the Applicant’s inability to apply for a work permit from China during COVID-19?
(c) Did the Internal Reviewer breach procedural fairness by making a “veiled credibility finding” against the Applicant and not providing him an opportunity to respond?
(d) Did the Internal Reviewer fail to provide adequate reasons for not accepting the Applicant’s explanations?
STANDARD OF REVIEW
The standard of review is reasonableness as it relates to the merits of the Decision.
In Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at paras. 99-101, the Supreme Court of Canada explained the concept of a “reasonable decision” in the following terms:
99 A reviewing court must develop an understanding of the decision maker’s reasoning process in order to determine whether the decision as a whole is reasonable. To make this determination, the reviewing court asks whether the decision bears the hallmarks of reasonableness — justification, transparency and intelligibility — and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision: Dunsmuir, at paras. 47 and 74; Catalyst, at para. 13.
100 The burden is on the party challenging the decision to show that it is unreasonable. Before a decision can be set aside on this basis, the reviewing court must be satisfied that there are sufficiently serious shortcomings in the decision such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency. Any alleged flaws or shortcomings must be more than merely superficial or peripheral to the merits of the decision. It would be improper for a reviewing court to overturn an administrative decision simply because its reasoning exhibits a minor misstep. Instead, the court must be satisfied that any shortcomings or flaws relied on by the party challenging the decision are sufficiently central or significant to render the decision unreasonable.
101 What makes a decision unreasonable? We find it conceptually useful here to consider two types of fundamental flaws. The first is a failure of rationality internal to the reasoning process. The second arises when a decision is in some respect untenable in light of the relevant factual and legal constraints that bear on it. …
Vavilov makes it clear, at para. 125, that a reviewing court is not to reweigh and reassess the evidence or interfere with a decision-maker’s factual findings unless there are “exceptional circumstances”.
With respect to breach of the duty of procedural fairness, the Court must determine if the duty was met by considering the circumstances of the case, the nature of the inquiry, the rules under which the decision-maker is acting, and the subject-matter of the decision: Vavilov, at para. 77; Bastien v. University of Toronto, 2021 ONSC 4854, at para. 43; and T.A. (Litigation Guardian of) v. Ontario (Minister of Health), 2024 ONSC 4580 (Div. Ct.), at para. 27; see also Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, at paras. 21-28. The court’s role is to determine whether the process followed by the administrative decision maker was fair and offered the affected parties a right to be heard as well as a full and fair chance to know and respond to the case against them: Chera v. Canada (Minister of Citizenship and Immigration), 2023 FC 733, at para. 14.
ANALYSIS
(a) Did the Internal Reviewer breach procedural fairness by importing a mandatory obligation into the OINP’s conditions?
Position of the Applicant
The Applicant submits that the Internal Reviewer breached procedural fairness by imposing on the Applicant a mandatory condition to apply for a work permit within the six-month validity period of the Work Permit Support Letter. He argues that, at the time he applied, there was no mandatory requirement for applying for a work permit within a specified time period in the OINP guidelines. The Internal Reviewer improperly imposed this requirement and unfairly and unreasonably refused the internal review request as a result.
The Applicant relies on the fact that the OINP updated the language on its website in February 2022, after the Applicant had applied for and received his nomination in 2021, to explicitly state that applicants who receive nominations must apply for their work permits within six months in order to meet their nomination conditions. The act of updating the language in this regard suggests that it was not “clearly implicit in the first place” and, therefore, it was procedurally unfair for the Internal Reviewer to rely on it as the basis for refusal.
The Applicant cited Federal Court decisions wherein it was held that immigration officers had unreasonably imposed requirements on applicants which requirements were not found in the applicable policy’s language, application guide or application form: see Abiodun v. Canada (Minister of Citizenship and Immigration), 2022 FC 1675, at paras. 17-19; and Fatomiluyi v. Canada (Minister of Citizenship and Immigration), 2024 FC 220, at paras. 17, 25-26.
The Applicant also relied on Federal Court decisions wherein it was held that immigration officers had breached procedural fairness when refusing an applicant’s permanent residence application under a Temporary Public Policy, after the officers imposed an external requirement that the applicants complete their eligible internship in an “accredited” program but failed to give the applicants any notice of the new requirement or an opportunity to respond to their concerns related to it: see Okedayo v. Canada (Minister of Citizenship and Immigration), 2023 FC 60, at paras. 1, 23; and Iriafe v. Canada (Minister of Citizenship and Immigration), 2022 FC 1428, at paras. 9-11.
Counsel for the Applicant submitted that the Applicant accepts the decision of the Divisional Court in Dalwadi v. Ontario (Minister of Labour, Immigration, Training and Skills Development), 2023 ONSC 1759. In Dalwadi, the Divisional Court judicially reviewed the cancellation of the nominations of five applicants who had been approved through the “Foreign Worker with a Job Offer” stream, similar to the Applicant before us. The condition requiring the obtaining of a work permit was also the focus of those judicial reviews. The applicants’ nomination approval letter had been accompanied by a work permit support letter that remained valid for 6 months. The applicants’ work permit support letters had expired while they were residing outside of Canada and they were unable to commence employment due to the COVID-19 pandemic. They requested new work permit support letters so they could apply for work permits, but no new letters were provided. The applicants’ certificates of nomination were cancelled for failure to comply with the conditions attached to the nomination, namely, that they had not applied for nor obtained a work permit and had not begun working in the approved employment positions. The applicants requested an internal review, wherein they identified two errors made by the director: (i) that the subject condition did not expressly state that they “must” apply for a work permit after receiving their nomination; and (ii) that the director failed to take into account the impact of the COVID-19 pandemic and the anxiety regarding international travel and moving to a new country alone during such a time.
The internal reviewer in Dalwadi, similar to the Internal Reviewer in the case before us, confirmed the director’s decision to cancel the applicants’ nominations holding that, 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 and, 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 held that such a result “is clearly not consistent with the intent and purpose” of the OINP. The internal reviewer found that neither the applicants nor their employers 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. He further wrote that Canada had continued to accept and admit foreign nationals who hold valid work permits through the pandemic, in accordance with guidance issued by the IRCC.
In Dalwadi, at para. 1, the Divisional Court found that the OINP “promotes the Ministry of Labour, Immigration, Training and Skills Development’s mandate of attracting skilled and in-demand newcomers to Ontario”. It held that the internal reviewer’s decisions were reasonable, that his findings and conclusions were available to him on the record, and that his decisions to confirm the cancellations of the nominations were entitled to deference. The Court further held that it is not the role of the court on judicial review to substitute its views for those of the internal reviewer. With respect to the breach of procedural fairness argument raised, the Divisional Court held that there was no such breach. The conditions remained consistent through the period of the applicants’ nominations; and the updated conditions simply made explicit what was already implicit in terms of the OINP’s requirements. The Court dismissed all five applications for judicial review.
The Applicant submits that the intent of the Act is not in issue, and he accepts that the Condition was always a requirement. However, he contends that the six-month deadline for satisfying the Condition was not fairly disclosed to him. Such wording is not explicit in the Nomination Approval Letter and multiple interpretations are possible, so the process is inherently unfair. The Applicant further submits that what constitutes “urgency” should also have been better defined and explained. The Applicant has a procedural right to be told of all program requirements. It was only with the delivery of the NOICA that the work permit requirement was made explicit to the Applicant, and when it was, he applied at that time.
Position of the Respondent
- The Respondent submits that adequate notice of the six-month deadline was given to the Applicant, and that the deadline is implicit in the language and scheme of the OINP. The Respondent contends that the material facts of this case are identical to those in Dalwadi and submits that the principle of “general consistency of administrative decisions” requires this Court to affirm the Internal Reviewer’s uniform interpretation of the Condition as reasonable. In that case, the notice was found to be adequate and so it should similarly be found to be adequate here. The Applicant’s recourse is to reapply to the OINP.
Discussion
When a duty of procedural fairness arises, the content of that duty depends on the circumstances of the case before the decision-maker. Factors include: the nature of the decision being made and the process followed in making it; the nature of the statutory scheme; the importance of the decision to the affected individual; the legitimate expectations of the person challenging the decision; and, the choices of procedure made by the administrative decision maker itself: see Vavilov, at para. 77, citing Baker, at paras. 23-27. The overriding principle is that the affected party must be able to appreciate the issues to be decided: Brooks v. Ontario (Racing Commission), 2017 ONCA 833, at para. 13.
In the case before us, the director gave the Applicant an opportunity to address the issue of why he had not applied for a work permit within the six months of his nomination. Then, in the NOICA, dated June 30, 2023, the director communicated his concerns to the Applicant and the Applicant responded. That response was considered by the director. In the director’s decision, the Applicant’s failure to comply with the Condition was expressly identified as the reason why the approval was being cancelled. So, again, the Applicant had notice of the case he was facing. In any event, the Applicant understood the case he had to meet. The explanations he and the Employer provided related directly to the issue of why he had not applied for a work permit, and those explanations were weighed and assessed by the Internal Reviewer in the Decision. Accordingly, the required level of procedural fairness was accorded.
Before the Internal Reviewer, the Applicant argued that the obligation to obtain a work permit was not mandatory. The Internal Reviewer justified their interpretation and explained the problems with the Applicant’s alternative interpretation and why it did not align with the OINP. The Internal Reviewer held that the purpose of the OINP, and the wording of the Work Permit Support Letter, the Confirmation of Nomination, and the OINP website, when read in conjunction with the Nomination Approval Letter, which was issued in relation to the Applicant and the Employer’s applications submitted in July 2021 seeking a foreign worker to fill an employment vacancy on an “urgent” basis, provide clear support for the conclusion that the Applicant was required to apply for and obtain a work permit within six months after being issued the Nomination Approval Letter. That interpretation is consistent with the objective of the Act.
In my view, this case is on all fours with Dalwadi. I find that there was no breach of procedural fairness as it relates to the implication of the six-month validity period for applying for a work permit in order to satisfy the Condition.
(b) Did the Internal Reviewer unreasonably dismiss probative evidence which supported the Applicant’s inability to apply for a work permit from China during COVID-19?
Position of the Applicant
- The Applicant submits that the Internal Reviewer unreasonably dismissed several letters that had been provided by the Applicant and the Employer explaining that he had delayed applying for a work permit after receiving his nomination because of the impact of COVID-19 and China’s pandemic restrictions on foreign travel, and the need for the Applicant to take care of his family. He points to the two references in the Decision where the Internal Reviewer states there was no evidence to support the Applicant’s explanations and argues that the explanations should have been considered sufficient evidence on their own. From the Applicant’s perspective, he did not apply for a work permit because he could not have left China because of COVID-19. He did apply for permanent resident status, however, as that would best advance his ability to get to Canada.
Position of the Respondent
- The Respondent submits that the Decision is reasonable and that it was justified in relation to the law and facts. The purpose of the statutory scheme under which the Applicant’s nomination was made, with conditions, was central to the Internal Reviewer’s reasons. The Internal Reviewer interpreted the conditions imposed in a manner that best promoted this purpose and avoided absurd results. The Internal Reviewer’s interpretation of the conditions was also consistent with the director’s past decisions.
Discussion
Contrary to the Applicant’s argument, I find that it is clear that the Internal Reviewer considered the explanations provided by the Applicant and the Employer, and that the Internal Reviewer logically responded to that evidence. It was not unreasonable for the Internal Reviewer to conclude that those explanations were insufficient to justify why the Applicant had not satisfied the work permit condition, especially when viewed in light of the intent and purpose of the OINP. The Internal Reviewer’s decision was not unreasonable given that there was no evidence provided by the Applicant showing that he could not have applied or that the Chinese COVID-19 policies prevented him from applying for a work permit, and given his submissions that he had decided to “postpone” submitting a work permit application until 2022.
The Internal Reviewer’s reference to the IRCC guidance that, at the material time, foreign nationals outside of Canada could submit applications for work permits, merely supports the fact that Canada was continuing to accept applications during COVID-19. That is reflected in the fact that the Applicant submitted his permanent residence application in September 2021, despite the COVID-19 restrictions in China at the time.
The Decision was based on the facts as the Internal Reviewer found them, including that the Applicant was able to but failed to apply for a work permit, which was a condition of the Nomination Approval Letter. While the Applicant disagrees with the result, I am not persuaded that the Internal Reviewer’s Decision is unreasonable since the evidence supports this finding.
The Applicant is effectively asking this Court to reweigh and reassess the evidence, but both the director and the Internal Reviewer have already weighed and assessed the explanations provided in the letters. I am not satisfied that the Applicant has established any “exceptional circumstances” to justify this Court reweighing and reassessing the evidence, and so I decline to do so.
(c) Did the Internal Reviewer breach procedural fairness by making a “veiled credibility finding” against the Applicant and not providing him an opportunity to respond?
Position of the Applicant
The Applicant argues that the Internal Reviewer discounted the letters that he and the Employer submitted, stating that no evidence to support the explanations had been provided. The failure of the Internal Reviewer to discuss the probative value of those letters can be understood to mean that the Internal Reviewer implicitly questioned the reliability of the letters. In the absence of any analysis, this renders the Internal Reviewer’s decision a veiled credibility finding against the Applicant. If the Internal Reviewer had concerns about the credibility of the letters, the Applicant should have been given the opportunity to respond. He was not given such an opportunity and, as a result, the Internal Reviewer’s decision breached procedural fairness. To support his position, the Applicant relies on the Federal Court decisions in Chera (cited above); Diallo v. Canada (Minister of Citizenship and Immigration), 2019 FC 1324; and JKL v. Canada (Minister of Citizenship and Immigration), 2021 FC 1166.
In Chera, the applicant was denied a temporary resident visa because the officer was not satisfied that he would leave Canada at the end of his stay. The Federal Court found that the officer’s concern was “rooted in the credibility” of the applicant and constituted a veiled credibility finding and, accordingly, the officer had an obligation to offer the applicant “the possibility to clarify the issues arising from his application”. Since the officer did not give such an opportunity to respond, it was a breach of procedural fairness sufficient to justify the Court’s intervention and overturn the decision. In Diallo, the Federal Court found that the applicant had provided a narrative detailing their political activities in Colombia and the immigration officer’s finding that there was no evidence of this implied that the officer did not believe the factual assertions made by the applicant in their narrative. The Court held that the officer made a veiled credibility finding against the applicant without allowing them to respond thereby breaching procedural fairness. And, in JKL, the Federal Court found that an immigration officer made a veiled credibility finding against an applicant applying for a Pre-Removal Risk Assessment after finding that the applicant had failed to objectively establish her sexual orientation as a lesbian, despite the applicant providing an affidavit attesting to this. The court found that the officer had failed in their reasons to address the probative value of the applicant’s affidavit and, as a result, the Court concluded that “the officer simply did not believe [the applicant’s] story and tacitly discounted her credibility”.
Position of the Respondent
- It is the Respondent’s position that the Internal Reviewer did not make a “veiled credibility finding” but was simply not satisfied by the evidence provided by the Applicant regarding why he had not applied for a work permit within the required timeframe. This was a finding of insufficient evidence only, not one of credibility. The approval of the Applicant’s nomination was to fill a labour need for an Ontario employer, which was the reason why he was accepted into the OINP. The IRCC was accepting work permit applications during COVID-19. The Applicant could not leave China but that did not prevent him from applying. He chose to remain in China due to responsibilities to his family. That shows an intention not to migrate at the time, but that is not evidence that he was prevented from applying for a work permit during the validity period.
Discussion
In my view, the case before us is distinguishable from those in Chera, Diallo, and JKL since, unlike in those cases, here, there is no indication that the Internal Reviewer did not believe the explanations provided by the Applicant or the Employer. A decision-maker can draw conclusions from the evidence before them without making adverse findings about a party’s credibility: see Liverpool v. Ontario Workplace Safety and Insurance Appeals Tribunal, 2023 ONSC 2286 (Div. Ct.), at para. 43; and Nacar v. Canada (Minister of Citizenship and Immigration), 2024 FC 1647, at para. 35.
It was for the Internal Reviewer to determine what, if any, weight would be given to the Applicant’s explanations. The Internal Reviewer assessed the Applicant’s evidence against the statutory intent and purpose of the OINP. The Internal Reviewer did not reject the Applicant’s evidence as not true or find that he was not being honest. There is nothing to indicate that the Internal Reviewer did not believe the Applicant’s explanations about the COVID-19 restrictions in China or his family responsibilities or had a concern about his genuineness. It is apparent on the face of the Decision that the Internal Reviewer accepted the Applicant’s explanations but, in weighing the evidence before them, was simply not satisfied that it justified not fulfilling the Condition. I find that there was no veiled credibility finding. It was within the Internal Reviewer’s discretion to find that the Applicant’s explanations did not satisfactorily account for why he was not able to apply for the work permit. In my view, this was a reasonable and logical finding given the information before the Internal Reviewer. Since there was no veiled credibility finding by the Internal Reviewer, there was no breach of procedural fairness.
(d) Did the Internal Reviewer fail to provide adequate reasons for not accepting the Applicant’s explanations?
Position of the Applicant
- The Applicant submits that the Internal Reviewer failed to provide adequate reasons for why the Applicant’s explanations were not sufficient to justify his delay in applying for a work permit. The Decision unreasonably focused on what was not provided by the Applicant rather than what was provided by him. The Applicant relies on the decision in Kamikawa v. Canada (Minister of Citizenship and Immigration), 2024 FC 873, at paras. 24-25, 28-29, where the Federal Court found that an immigration officer had unreasonably denied an applicant’s work permit application after failing to explain why the applicant’s explanations for why she had overstayed her previous visas were insufficient to grant her a work permit, thus rendering the decision unreasonable.
Position of the Respondent
- The Respondent’s position is that the Internal Reviewer provided adequate reasons.
Discussion
An administrative decision-maker has a “responsibility to justify to the affected party, in a manner that is transparent and intelligible, the basis on which it arrived at a particular conclusion”: Vavilov, at para. 96.
In my view, the Internal Reviewer did not fail to address the Applicant’s explanations in their reasons. In the Decision, the explanations proffered by the Applicant were fairly summarized and considered and assessed by the Internal Reviewer. The Internal Reviewer justified their interpretation of the Condition in light of the intent and purpose of the OINP, considered in conjunction with the governing statutory framework, the Work Permit Support Letter, and the Employer Guide, all of which inform the purpose of the Nomination Approval Letter having been issued. The Internal Reviewer further explained why the Applicant’s suggested interpretation of the Condition did not align with the objective of the OINP and, more specifically, the Nomination Approval Letter. When read as a whole, the reasons set out in the Decision make it clear that the Internal Reviewer found the explanations to be insufficient to justify the Applicant’s delay given the intent and purpose of the OINP.
I find that the Internal Reviewer provided adequate reasons for finding that the Applicant had not satisfied the Condition. The Decision was internally coherent, it provided a rational chain of analysis, and it is justified in relation to the facts and the statutory scheme of the OINP.
Accordingly, this aspect of the application is dismissed.
DISPOSITION
For the foregoing reasons, the application for judicial review is dismissed.
In accordance with the parties’ agreement, costs are awarded to the Minister in the amount of $5,000 all inclusive, payable by the Applicant.
MacNeil J.
I agree: __________________________
D.L. Corbett J.
I agree: __________________________
Lococo J.
Released: February 28, 2025
and Skills Development), 2025 ONSC 1284
DIVISIONAL COURT FILE NO.: 179/24
DATE: February 28, 2025
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
D.L. Corbett, Lococo and MacNeil JJ.
BETWEEN:
MINGRUI ZHU
Applicant
– and –
MINISTER OF LABOUR, IMMIGRATION, TRAINING AND SKILLS DEVELOPMENT
Respondent
REASONS FOR DECISION
MacNeil J.
Released: February 28, 2025