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Immigration - Ontario Immigration Act (OIA) (Ont). Zhu v. Ontario (Minister of Labour, Immigration, Training and Skills Development)
In Zhu v. Ontario (Minister of Labour, Immigration, Training and Skills Development) (Ont Divisional Ct, 2025) the Divisional Court dismissed a JR, here against "a decision by an Internal Reviewer of the Ministry of Labour, Immigration, Training and Skills Development ... 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”)".
Here the court reviews aspects of the Ontario Immigration Act, 2015:THE LEGISLATION
32. 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.
33. 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”.
34. 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”.
35. 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.
36. 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”.
37. 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).
38. 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)).
39. 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, made under the Ontario Immigration Act, 2015
40. 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.
41. Section 8 of the regulation addresses the cancellations of approvals. It reads:8.(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. 42. Section 10 sets the parameters of internal reviews. It states:10.(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, made under the Ontario Immigration Act, 2015 43. 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:4.(1) The following criteria are prescribed for an application for approval of an employment position:
1. The employer’s business must have existed and been active for at least three years before the date of making the application.
2. 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.
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4. The position must be full-time and have an indeterminate duration.
5. The position must be urgently necessary to the employer’s business.
6. 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).
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11. 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.] . Zhu v. Ontario (Minister of Labour, Immigration, Training and Skills Development)
In Zhu v. Ontario (Minister of Labour, Immigration, Training and Skills Development) (Ont Divisional Ct, 2025) the Divisional Court dismissed a JR, here against "a decision by an Internal Reviewer of the Ministry of Labour, Immigration, Training and Skills Development ... 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”)".
Here the court illustrates procedures regarding work permits under the Ontario Immigrant Nominee Program:1. 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.
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4. 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:2. 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. 5. The nomination was based on filling the approved employment position with the Employer.
6. 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.
7. 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. 8. The Applicant did not apply for a work permit within six months of August 18, 2021.
Cancellation of the Approval by the Director
9. 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. 10. A similar letter, dated January 23, 2023, had been sent to the Employer.
11. 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.
12. The Employer had responded to the OINP by emailed correspondence, dated January 31, 2023, advising of very similar information.
13. 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.
14. 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.”
15. 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.
16. 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.)
17. 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.] 18. 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
19. 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.
20. 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.
21. 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”.
22. 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”.
23. 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.
24. 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”.
25. 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.
26. 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.”
27. 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.
28. 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.
29. 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. 30. 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.
31. 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. . Dalwadi v. Minister of Labour, Immigration, Training and Skills Development
In Dalwadi v. Minister of Labour, Immigration, Training and Skills Development (Div Court, 2023) the Divisional Court considered an unusual JR under Ontario's Immigration Act (IA), here relating to the 'Ontario Immigrant Nominee Program'. In these quotes to court sets out the program and some relevant IA provisions:[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.
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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. Further IA procedural facts are set out at paras 11-26.
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