De Silva v. Canada (Citizenship and Immigration), 2024 FC 1798 : Federal Court Sets Aside Intra-Company Transferee Work Permit Refusal After Officer Misidentified the Canadian Employer and Misapprehended the Evidence

The Federal Court reviewed the refusal of intra-company transferee work permit application and the related applications of his wife and child. The officer concluded that there was no qualifying relationship between the applicant’s Sri Lankan employer and his proposed Canadian employer. The Court granted judicial review because the officer mistakenly treated the franchisor, Stay Home Forever Inc., as the proposed employer, when the evidence showed that the actual employer was Dara Care Inc., operating under the business name “Stay Home Forever.”

Key Principle

An officer assessing an intra-company transferee application must accurately identify the proposed Canadian employer and consider the evidence explaining its corporate and operating names. A business operating name is not necessarily the legal corporate entity. Where the application, employment agreement, employer contact information, and proposed duties show that the employer is a related Canadian corporation operating under a franchise name, an officer cannot reasonably treat the unrelated franchisor as the employer without addressing the contrary evidence.

Background

The applicant was Chairman of Appollo Holdings, a Sri Lankan company in which he held a majority interest through his holding company.

He sought employment as Chief Executive Officer of Dara Care Inc., an Ontario company that he partly owned. The parties agreed that Appollo Holdings and Dara Care Inc. had a qualifying corporate relationship.

Dara Care Inc. intended to purchase and operate two Stay Home Forever home-care franchises. It therefore conducted business as “Dara Care Inc. d/b/a Stay Home Forever.”

The employment agreement identified Dara Care Inc. as the employer. However, the Employer Portal listed the employer’s business operating name as “Stay Home Forever.”

The officer interpreted this as referring to Stay Home Forever Inc., the unrelated franchisor, and refused the application because no qualifying relationship existed with that company.

Court Findings

• Officer Misidentified the Canadian Employer
The Court held that the officer incorrectly concluded that the applicant’s employer was Stay Home Forever Inc., the franchisor, rather than Dara Care Inc., which had actually offered the employment. This factual error formed the basis of the finding that no qualifying corporate relationship existed.

• Business Operating Name Did Not Change the Employer’s Identity
The Court found that the Employer Portal requested the employer’s business operating name, not its legal corporate name. Since Dara Care Inc. operated under the business name “Stay Home Forever,” the officer unreasonably treated the operating name as referring to a different corporate entity.

• Application Evidence Required Meaningful Comparison
The processing instructions required the officer to compare the Employer Portal information with the documents submitted in the work permit application. Had that comparison been properly undertaken, the employment agreement and supporting records would have confirmed that Dara Care Inc. was the proposed employer.

• Additional Evidence Confirmed the Employer’s Identity
The Court noted that the employer contact identified in the Employer Portal was a shareholder and director of Dara Care Inc., and the proposed job duties referred to the franchisor as a separate entity. These documents consistently supported the applicant’s position and contradicted the officer’s conclusion.

• Fundamental Misapprehension Rendered the Decision Unreasonable
The Court held that the officer fundamentally misapprehended the evidence concerning the identity of the Canadian employer and the qualifying corporate relationship. Because this factual error was central to the refusal, the work permit decision, along with the accompanying family members’ refusals, was set aside for redetermination.

Outcome

The Federal Court granted judicial review, set aside the applicant’s work permit refusal and the related refusals of his wife’s work permit and child’s study permit, and returned all applications for redetermination. No question was certified.

Case Citation:

De Silva v. Canada (Citizenship and Immigration), 2024 FC 1798 (CanLII)