Canada: Federal Court Strikes Out Union's Attempt To Challenge Temporary Foreign Workers

Last Updated: May 25 2013
Article by Joan M. Young

In the latest legal development impacting the temporary foreign workers program, the Federal Court struck out an attempt by the United Steelworkers Union to challenge Labour Market Opinions issued for the hiring of temporary foreign workers in United Steel, Paper and Forest Street, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union (United Steelworkers Union) v The Minister of Citizenship and Immigration, and others1. This is the second case in recent months in which unions, holding no rights as the bargaining agent for the affected employees, have attempted legal challenges to Labour Market Opinions granted to employers.

In this Application for Leave and Judicial Review filed by the United Steelworkers Union, it was alleged that the Minister of Human Resources and Development Canada had issued an unknown number of positive Labour Market Opinions to iGate and/or Royal Bank of Canada for the hiring of temporary foreign workers to work in RBC's Toronto operations. The Union alleged that the effect of the issuance of the positive Labour Market Opinions was that foreign workers would be displacing currently employed Canadian workers at RBC, thereby having an adverse effect on the Canadian job market.

In response to this latest litigation, the federal government applied to the Federal Court to dismiss the claim on the basis that the Union lacked standing to bring the challenge to the court. The Federal Court this week agreed that the Union did not have the necessary interest in the proceedings and dismissed the Union's claim.

In making this decision, the Federal Court highlighted that the United Steelworkers Union had no direct interest in the Labour Market Opinions which allowed the foreign workers to be hired. Normally, this hurdle alone would prevent the Union from advancing a claim- as unless a party has a direct interest in the matter being challenged, they cannot mount a legal challenge under the Federal Court Rules. However, the Union sought to be exempted from the legal requirement that they have a "direct interest" and be permitted to advance the case on the basis of "public interest" standing. Standing is a concept in law which recognizes that only those parties whose interest are directly engaged should normally have recourse to the courts to challenge the actions of others, thereby excluding "busybodies" who have no direct interest from interfering in the affairs of others. In contrast, at the root of public interest standing is the idea that illegal acts or laws should not be immunized from review by the courts, and that Courts should also exercise their discretion and balance the underlying rationale for restricting standing with the important role of the courts in assessing the legality of government action.

The Federal Court relied on earlier court decisions2 where the legal test for standing had been determined and noted that the Union was required to establish that they met three basic criteria for public interest standing:

  • the case raised a serious justiciable issue;
  • the Union had a real stake or genuine interest in the outcome of this case; and
  • the proposed proceeding was a reasonable and effective means for bringing the matter to the court.

In analyzing these criteria, the judge rejected the Union's contention that it met these requirements and instead highlighted several key aspects where the Union fell short of meeting the applicable legal tests:

  • the approach taken by the Union was more likely to result in the case becoming a means for seeking publicity and politicizing, rather than the determination of a justiciable issue;
  • the Union had no members employed at the bank, and the bank was a non-unionized employer;
  • the Union did not have a long history of representing workers in the affected industry;
  • the Union attempted to seek out individuals who would lend support to or become parties to the proceeding but found none who were willing to stand; and
  • the one individual who was directly affected by the issuance of the Labor Market Opinion appeared to have no interest or intent to challenge the decision.

The Federal Court highlighted that the United Steelworkers Union's connection with the workers and the industry was tenuous "at best" and that a court case was not the proper venue for a broad ranging inquiry into the administration of the temporary foreign workers program. For these reasons, the case was dismissed. It seems that in this case the Federal Court found the proposed intervention of the Union to be more akin to a "busybody" than a party with a genuine public interest in the matter at hand proposing an effective means to bring the matter to the court.


1 2013 FC 496.

2 Minister of Canada v Borowski; Canadian Council of Churches v Canada and Attorney General of Canada v Downtown Eastside Workers Against Violence in Society and others.

The foregoing provides only an overview. Readers are cautioned against making any decisions based on this material alone. Rather, a qualified lawyer should be consulted.

© Copyright 2013 McMillan LLP

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