T-1772-76
James Joseph Peter Doran (Petitioner)
v.
The Queen and the Minister of Manpower and
Immigration (Respondents)
Trial Division, Walsh J.—Montreal, May 17 and
25, 1976.
Immigration—Application for mandamus and declaration—
Department of Manpower and Immigration refusing to recom
mend confirmation of offer of employment to petitioner, a U.S.
citizen on a student visa—Petitioner seeking declaration that
requirement of work permit unconstitutional and ultra vires—
Immigration Act, R.S.C. 1970, c. I-2, s. 7(1)(f) and Regula
tions, ss. 3D(1),(2)(a)(i), 3G(d), and 35(1).
Petitioner, a U.S. citizen legally in Canada on a student visa,
required an employment visa before undertaking employment.
A letter was written by the prospective employer to the Depart
ment of Manpower and Immigration stating that summer work
had been offered petitioner, and that he was well qualified for
it. In spite of this, the confirmation of offer of employment
form was rejected after a six-week delay, having been coded as
rejected by a clerk in the Manpower office. As a result,
petitioner sought mandamus, and a declaration that the
requirement of a work permit issued by the Department was
unconstitutional and ultra vires.
Held, the petition is dismissed. Initially, mandamus would
not lie against the Crown in any event. While a non-immigrant
student may not work without permission of a departmental
officer, section 3D of the Regulations provides that the officer
shall issue the work visa, unless, on the basis of information
provided by the national employment service, a qualified citizen
or permanent resident is willing and available for the job, and
there is no reason to believe that a prospective employer would
not accept a citizen or permanent resident. Under section
3G(d) of the Regulations, however, a work visa may be issued
to a person to whom the Minister feels section 3D(2)(a)(i)
should not apply, due to special circumstances, thus giving the
Minister the final say. This does not justify mandamus against
him when he has not been asked to find special circumstances,
and the issuing officer has not yet made a decision. If the
procedure as described by respondents is standard, evidently
the immigration officer makes no independent determination,
nor does he hear applicant's submissions, but automatically
follows the recommendation of the employment service. In
effect, this puts both applicant and prospective employer at the
mercy of whatever summary determination may be made by
the clerk in charge in the Manpower office, without appeal,
except possibly to the Minister under Regulation 3G(d). The
issuing officer is not bound by the information given by the
national employment service. The issuing officer must decide;
to require him to accept the opinion of the clerk in the
Manpower office is an unacceptable delegation of his authority.
Nor is it enough for the clerk, simply by means of a number
code, to indicate to the officer that there are citizens or
permanent residents available. While it is not unconstitutional
or in violation of the Canadian Bill of Rights to give Canadians
preference, all applications of non-citizens on student visas for
work visas should not be turned down automatically. Each
should be carefully considered on its merits.
Lignos v. Minister of Manpower and Immigration [1973]
F.C. 1073, applied.
PETITION.
COUNSEL:
G. Postelnik for petitioner.
S. Paquette for respondents.
SOLICITORS:
Postelnik, Postelnik & Scott, Montreal, for
petitioner.
Deputy Attorney General of Canada for
respondents.
The following are the reasons for judgment
rendered in English by
WALSH J.: This is a petition for issuance of a
writ of mandamus against respondents arising out
of the refusal of the Department of Manpower and
Immigration to recommend the confirmation of an
offer of employment made to petitioner, a United
States citizen legally in Canada on a student visa,
who requires an employment visa before undertak
ing such employment pursuant to the provisions of
section 3D of the Immigration Regulations P.C.
1962-86, February 1, 1962 [SOR/62-36]. The
petition seeks a declaration that the requirement of
a work permit issued by the Department of Man
power and Immigration to the petitioner is uncon
stitutional and ultra vires. Reference is made to
the Canadian Bill of Rights and the United
Nations Convention to which Canada has sub
scribed and it is contended that respondents' au
thority over aliens does not extend to granting or
withholding of the right to work.
It may be immediately pointed out that man-
damus would not lie against one of the respond
ents, Her Majesty the Queen in Right of Canada,
in any event. The question of imposing a condition
of non-employment on an alien has been dealt with
by the Court of Appeal, in the case of Lignos v.
Minister of Manpower and Immigration [[1973]
F.C. 1073], in which it was held that when a
person has been released from custody pursuant to
section 17 of the Immigration Act', a condition
requiring that that person against whom a depor
tation order had been issued because he was ille
gally in Canada, should not accept employment
during his conditional liberty, was a condition
flowing naturally from the objects foreseen in the
Immigration Act and did not constitute a cruel or
unjust punishment. While the facts were substan
tially different from the present case in which
there is no question of petitioner being in Canada
illegally, and it dealt with the imposition of this
condition by the immigration officer rather than
with the constitutionality of Regulations requiring
an employment visa before a person in the country
by virtue of a student visa can take employment,
the Regulation appears to me to be a reasonable
one and which flows naturally from the provisions
of the Act, section 57 of which permits the Gover
nor in Council to make "regulations for carrying
into effect the purposes and provisions of this
Act".
Section 7(1)(f) of the Act permits the entry as
non-immigrants of students "while they are in
actual attendance at any university or college".
Section 35(1) of the Regulations permits a student
to enter and remain in Canada as a non-immigrant
provided inter alia that he complies with all the
requirements of the Act and Regulations and that
he has sufficient financial resources to maintain
himself and any dependants accompanying him
during the period for which he is admitted as a
student, and section 35(2) states "A student
referred to in subsection (1) and his dependants
shall not take employment in Canada without the
written permission of an officer of the Depart
ment". It is evident that when petitioner was
admitted as a non-immigrant on a student visa he
1 R.S.C. 1970, c. I-2.
was so admitted subject to this condition, of which
he must have been aware.
Subsections 3D(1) and (2)(a)(i) of the Regula
tions provide as follows:
3D. (1) A person who wishes to obtain an employment visa
shall make application therefor to an issuing officer on a
prescribed form and shall include on the form such information
as the form requires.
(2) Where an issuing officer receives an application for an
employment visa, he shall issue the employment visa unless
(a) it appears to him from information provided by the
national employment service that
(i) a Canadian citizen or permanent resident qualified for
the employment in which the applicant wishes to engage in
Canada is willing and available to engage in that employ
ment and, in the case of a person other than a self-
employed person, there is no reason to believe that the
prospective employer will not, for a reason relating to the
nature of the employment, accept a Canadian citizen or
permanent resident for such employment,
The words "national employment service" are
defined in section 3B as "the employment service
referred to in Part VII of the Unemployment
Insurance Act". (i.e. the regional offices of
Manpower.)
One further section of the Regulations should be
referred to before dealing with the facts. Section
3G(d) reads as follows:
3G. Notwithstanding subparagraph 3D(2)(a)(i) and para
graph 3D(2)(b), an employment visa may be issued
(d) to a person in respect of whom subparagraph
3D(2)(a)(i) and paragraph 3D(2)(b) should not, in the
opinion of the Minister, be applied because of the existence
of special circumstances.
The Minister, therefore, as might be expected,
has the final say in the matter, but this does not
justify the issue of a writ of mandamus against
him, when not only has he not been asked to find
that special circumstances exist in the present
case, but also the issuing officer has not yet made
any decision on the application.
The facts of the case indicate that on February
25, 1976, a letter was written to the office of the
Department of Manpower and Immigration at
2089 Union Street, Montreal, by Charles H. Ran-
nells, Manager of the Coed Residence of McGill
University, reading as follows:
Coed Residence
3935 University St.
Montreal, Quebec
February 25, 1976
Department of Manpower and Immigration
2089 Union Street
Montreal, Quebec
To Whom It May Concern:
Coed Residences has offered summer work to a number of its
students. All of those employed are Canadian citizens except
one, Mr. James Scott Doran 2 , on whose behalf I appeal to you.
We would be very grateful to you if you could approve his
working here as a residence host on the basis of his exceptional
ly conscientious and reliable performance as a volunteer worker
here during the past two (2) years, and his thorough knowledge
of the residences. We need expert help here at the Olympic
Press Village this summer, and here Mr. Doran would give us a
great deal of strength.
Thank you in advance for your consideration.
Yours truly,
Charles H. Rannells
Manager
CHR/dbm
Despite this letter the Confirmation of Offer of
Employment form presented to the Manpower
Office on March 9, signed by Mr. Rannells was
rejected on April 19, 1976, after a delay of 6
weeks, being given the Code number 1 signifying
such rejection by the clerk in Manpower charged
with examining same. In addition to the special
qualifications of petitioner for the job, set out in
Mr. Rannells' letter, the petition indicates that
petitioner in addition to being fluent in English
and French has knowledge of several other lan
guages and has had five years training experience
working in the tourist industry in the State of New
York. Petitioner never had an interview or oppor
tunity to call this to the attention of the Manpower
employee before the rejection.
An affidavit submitted on behalf of respondents
by Gerard M. Poirier, an immigration officer,
states that he interviewed petitioner himself on
2 The difference in name from that appearing in the style of
cause was not raised.
March 8, 1976. He states that no employment visa
has yet been issued and that an immigration offi
cer cannot issue one if the national employment
service provides information indicating that the job
can be occupied by a citizen or permanent resident
of Canada, and that in his experience there is
usually six weeks delay before the immigration
service is informed of the nature of the recommen
dation; after being advised of it they communicate
with the non-immigrant or call him to an interview
to tell him of the decision taken. If this is the
standard procedure it is evident that the immigra
tion officer makes no independent determination,
nor does he hear the applicant's submissions, but
merely follows automatically the recommendation
of the employment service. This has the effect of
putting not only the applicant, but the employer,
who for special reasons wishes to employ him at
the mercy of whatever determination may be made
by a clerk in the Manpower Office in a summary
manner, without appeal, save possibly to the Min
ister by virtue of Regulation 3G(d). In the present
case all the immigration officer has before him is
the form of Confirmation of Offer of Employment
with the Code 1 on it which according to Mr.
Poirier's affidavit indicates that there are citizens
or permanent residents of Canada available for the
job sought by applicant.
I do not accept the view of respondents as set
out in the affidavit of Mr. Poirier and the argu
ment of respondents' counsel to the effect that the
issuing officer is bound by the information given
by the national employment service. It is the issu
ing officer who must make the decision whether or
not to grant the employment visa, and while, from
a practical point of view, it must be conceded that
he cannot investigate each application personally
nor has he the information available to the nation
al employment service, on the availability of a
Canadian citizen or permanent resident for the
job, it is nevertheless going too far to say that he
must accept the opinion of the clerk in the national
employment service (Manpower) who examined
the application. This would be an unacceptable
delegation of his authority, when the decision must
be made by him. Nor do I consider it sufficient, in
a case such as the present for the Manpower
employee to simply, by the use of a code number
"1" indicate to the issuing officer that there are
citizens or permanent residents of Canada avail
able for the job. It is a matter of common knowl
edge that unemployment is at a high level in
Canada and that many Canadian students are
encountering difficulty in obtaining suitable
summer employment, and it is entirely proper, and
in my view not unconstitutional nor contrary to the
Canadian Bill of Rights to give them priority. This
does not mean, however, that all applications by
non-citizens in Canada on student visas for
employment visas should be turned down
automatically. Each application should be careful
ly considered on its merits and section 3D(2)(a)(i)
clearly requires that
1. There must be "a Canadian citizen or perma
nent resident qualified for the employment" that is
to say not merely a large number of potential
applicants, but some one person whom the issuing
officer finds to be qualified.
2. That the said individual must be "willing and
available to engage in that employment"—that is
to say there must be another applicant for that
specific job.
3. That there is "no reason to believe that the
prospective employer will not, for a reason relating
to the ... employment accept a Canadian citizen
or permanent resident for such employment". In
the present case the employer went to some pains
in his letter to point out why petitioner is, in his
view, uniquely qualified for the job, and this
employer is especially well qualified to judge this,
being a regular employer of students, and having
pointed out that except for petitioner all the other
students employed for summer work are Canadian
citizens.
The wishes and requirements of a prospective
employer should not lightly be overruled by Man
power, and in the present case, it would appear
that scant consideration, if any, was given to this
letter from Coed Residences.
I have dealt at some length with this matter
since it is my understanding that the issuing officer
has not yet made a decision in this case. There is
therefore no decision against which mandamus
can lie, nor do I believe that it should lie against
such a decision, which is properly an administra
tive one, in any event. However, I consider that
such a decision should be made only after a careful
consideration of all the facts and in accordance
with principles of natural justice, by the issuing
officer himself, and not merely by following some
one else's opinion. At the very least it should be
ascertained whether Coed Residences still insist on
the desirability of employing petitioner, or whether
a substitute will be acceptable, and whether in fact
they or Manpower have had an application from
any similarly qualified student who is a Canadian
citizen or permanent resident. I would point out
that the six-week delay, indicated as being normal,
before Manpower's recommendation reaches the
issuing officer appears to me to be inexcusably
long, and likely to have the effect, by itself, of
preventing an applicant for an employment visa
from obtaining the employment he seeks since it
would be a rare employer who would keep a job
open that long, and this excessive delay appears to
be unjust. It may well be that in the present case,
because of this alone, the job may no longer be
available.
As indicated the petition for writ of mandamus
is dismissed, but in the circumstances, without
costs.
ORDER
Petition for writ of mandamus is dismissed but
without costs.
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.