Ministerial Instructions – Revoking, Suspending, and Refusing to Process Work Permits and Labour Market Opinions

On December 27, 2013, Citizenship and Immigration Canada (“CIC“) and the Ministry of Economic and Social Development (“Service Canada“) released Ministerial Instructions regarding the revocation of work permits and Labour Market Opinions (“LMOs“), now called Labour Market Impact Assessments (“LMIAs“).  The Ministerial Instructions will allow the Government of Canada to rapidly respond to economic developments by immediately reducing the intake of foreign workers, will increase program integrity, and create uncertainty for Canadian businesses.

These are the first Ministerial Instructions to be issued by Service Canada since the Government of Canada amended s. 30 of the Immigration and Refugee Protection Act (“IRPA“) in the first 2013 Budget Implementation Act.  Section 30 of IRPA now reads:

Work and study in Canada

30. (1) A foreign national may not work or study in Canada unless authorized to do so under this Act.

Authorization

(1.1) An officer may, on application, authorize a foreign national to work or study in Canada if the foreign national meets the conditions set out in the regulations.

Instructions

(1.2) Despite subsection (1.1), the officer shall refuse to authorize the foreign national to work in Canada if, in the officer’s opinion, public policy considerations that are specified in the instructions given by the Minister justify such a refusal.

Concurrence of second officer

(1.3) In applying subsection (1.2), any refusal to give authorization to work in Canada requires the concurrence of a second officer.

Purpose

(1.4) The instructions referred to in subsection (1.2) shall prescribe public policy considerations that aim to protect foreign nationals who are at risk of being subjected to humiliating or degrading treatment, including sexual exploitation.

Revocation of work permit

(1.41) An officer may revoke a work permit if, in the officer’s opinion, public policy considerations that are specified in instructions given by the Minister justify the revocation.

For greater certainty

(1.42) For greater certainty, subsection (1.41) does not affect any other lawful authority to revoke a work permit.

Revocation or suspension of an opinion

(1.43) If, in the view of the Department of Human Resources and Skills Development, public policy considerations that are specified in instructions given by the Minister of Human Resources and Skills Development justify it, that Department may

(a) revoke an opinion provided by that Department with respect to an application for a work permit;

(b) suspend the effects of the opinion; or

(c) refuse to process a request for such an opinion.

For greater certainty

(1.44) For greater certainty, subsection (1.43) does not affect any other lawful authority to revoke an opinion referred to in that subsection.

Publication

(1.5) Instructions given under this section shall be published in the Canada Gazette.

Service Canada – Ministerial Instructions Respecting Labour Market Opinions

Service Canada’s Ministerial Instructions clarify that the public policy considerations which may justify the revocation of a LMIA pursuant to s. 30(1.43)(a) of IRPA with respect to a work permit application are:

  • if new information becomes available after the LMIA is provided indicating that the employment of the foreign national under the work permit is having or will have a significant negative effect on the labour market in Canada.  It is unclear how this will work in practice, who the burden of proof is on, and what the standard of proof is;
  • that the employer or group of employers provided false, misleading or inaccurate information in the context of the request for that opinion.  It is unclear how material the misleading or inaccurate information has to be in order to justify the revocation of a LMIA; and
  • that the employer’s name has been added to the employer blacklist referred to in the proposed subsection 209.91(3) of the Immigration and Refugee Protection Regulations.   These regulations are not yet in force yet, but these Minister Instructions suggest that they soon will be.  More information about them can be found in my blogpost here.

Service Canada’s Ministerial Instructions further clarify that the public policy considerations which may justify the suspension of a LMIApursuant to s. 30(1.43)(b) of IRPA with respect to a work permit application are that:

  • new information becomes available after the time that the opinion is provided that, if known at that time, would have led to a different opinion.  It is not clear what such information would be, whether such a determination can only be made by the officer who issued the original LMIA, and how a suspension in this context would be different from a revocation;
  • there are reasonable grounds to suspect that the employer or group of employers provided false, misleading or inaccurate information in the context of the request for that opinion.  In addition to the above questions regarding misleading information in the context of revocation, it is not clear when revocation would be appropriate rather than suspension;
  • there are reasonable grounds to suspect that the employer is not complying with the conditions set out in subsection 209.3 or 209.4 of the proposed (soon to come into effect) Regulations in respect of that work permit or any other work permit and the failure to do so may not be justified under one or the other of those sections, as applicable; and

Finally, the Ministerial Instructions provide that the public policy considerations which may justify Service Canada to refuse to process a LMIAare that:

  • there is information to indicate that the employment of the foreign national under the work permit in any portion, sector, region or occupational group of the labour market in Canada may or will have a significant negative effect on that labour market; and
  • the request for an opinion relates to an application for a work permit the processing of which would be refused under the terms of instructions given by the Minister of Citizenship and Immigration under subsection 87.3(3) of the Act.

The potential implications of the above two points relating to Service Canada’s new ability to refuse to process certain LMIA applications is perhaps best understood when considering CIC’s 2013decision to abruptly announce that six occupations no longer qualified for the CEC.  It is not difficult to envision a future in which Service Canada announces that “effective immediately, Service Canada will no longer process LMIAs for cooks,” or “effective immediately, Service Canada will refuse to process all LMIAs in Sudbury.”  Indeed, on June 20, 2014, ESDC announced that it would refuse to process LMIAs in certain occupations in certain regions.  The need for employers to be made aware of this risk, especially since Service Canada may make such an announcement during the employer’s mandatory advertising period, is crucial.

The Ministerial Instructions took effect on December 31, 2013.  Several LMIAs have since been suspended, and the following is an example of a suspension letter.

CIC – Ministerial Instructions Regarding the Processing of Certain Work Permit Applications

CIC’s Ministerial Instructions provide instructions to officers with respect to the effects of a decision by Service Canada to suspend a LMIA.

Officers have been instructed to suspend the processing of LMIA-based work permit  applications where Service Canada has suspended the relevant LMIA.  CIC will inform such applicants that the processing of their application will not continue until such a time as the LMO suspension is no longer in effect.

The Ministerial Instructions took effect on December 31, 2013.  They apply to all applications received by CIC on or after December 31, 2013.  They also apply to applications that CIC has received butnot yet processed.

CIC – Ministerial Instructions Regarding the Revocation of Certain Work Permits

CIC has clarified that the public policy considerations which may justify the revocation of a work permit are that:

  • the LMO that work permit was based on has been revoked;
  • in the case of a work permit that was issued to a foreign national referred to in any of subparagraphs 200(1)(c)(i) to (ii.1) of the Regulations (which includes the Self-Support Class, the PR Applicants in Canada Class, the Humanitarian Reasons Class, the Significant Benefits Program, the Provincial / Territorial Agreements Program, and the International Agreements Program),  with respect to a specified employer, new information becomes available indicating that the employment of the foreign national under the work permit is having or will have a significantly greater negative effect than benefit with respect to the development of a strong Canadian economy, unless the revocation of that work permit would be inconsistent with any trade obligation of the Government of Canada under an international agreement.  It is unclear how this will work in practice, who the burden of proof is on, and what the standard of proof is.  It is also unclear how provincial nominees will be affected;
  • the employer or group of employers provided false, misleading or inaccurate information in the context of the application for the work permit;
  • the employer’s name has been added to the employer black-list referred to in subsection 209.91(3) of the Regulations; and
  • the work permit was issued to a foreign national on the basis of their relationship to another foreign national and the work permit of that other foreign national has since been or is currently being revoked.

Conclusion

While these Ministerial Instructions as written are significant, it remains to be seen if the “bark is worse than the bite.”  It has been nearly three years since CIC first announced the creation of the employer blacklist.  To date not a single employer has been added to the list.  I still believe that the greatest way to promote compliance is to start publicizing the names of authorized representatives who employers have implicated in promoting fraud.  While Service Canada maintains an internal list of this, publicizing it would ensure that employers avoid the individuals most guilty of this.


Supreme Court of Canada Affirms That State Cannot Undermine Duty of Loyalty to Client

The Supreme Court of Canada (“SCC“) in Canada (Attorney General) v. Federation of Law Societies of Canada, 2015 SCC 7, has affirmed that some provisions of Canada’s anti-money laundering and anti-terrorist financing duties unreasonably impedes the lawyer’s duties to both keep their clients’ confidences and to act with the commitment to serving and protecting their clients’ legitimate interests.  In doing so, the SCC has held that it should be recognized as a principle of fundamental justice that the state cannot impose duties on lawyers that undermine their duty of commitment to their clients’ causes.

The SCC’s decision contained the following key passages:

The duty of lawyers to avoid conflicting interests is at the heart of both the general legal framework defining the fiduciary duties of lawyers to their clients and of the ethical principles governing lawyers’ professional conduct. This duty aims to avoid two types of risks of harm to clients: the risk of misuse of confidential information and the risk of impairment of the lawyer’s representation of the client (see, e.g., Canadian National Railway Co. v. McKercher LLP, 2013 SCC 39, [2013] 2 S.C.R. 649, at para. 23).

The Court has recognized that aspects of these fiduciary and ethical duties have a constitutional dimension. I have already discussed at length one important example. The centrality to the administration of justice of preventing misuse of the client’s confidential information, reflected in solicitor-client privilege, led the Court to conclude that the privilege required constitutional protection in the context of law office searches and seizures: see Lavallee. Solicitor-client privilege is “essential to the effective operation of the legal system”: R. v. Gruenke, [1991] 3 S.C.R. 263, at p. 289. As Major J. put it in R. v. McClure, 2001 SCC 14, [2001] 1 S.C.R. 445, at para. 31: “The important relationship between a client and his or her lawyer stretches beyond the parties and is integral to the workings of the legal system itself” (emphasis added).

The question now is whether another central dimension of the solicitor-client relationship — the lawyer’s duty of commitment to the client’s cause — also requires some measure of constitutional protection against government intrusion. In my view it does, for many of the same reasons that support constitutional protection for solicitor-client privilege. “The law is a complex web of interests, relationships and rules. The integrity of the administration of justice depends upon the unique role of the solicitor who provides legal advice to clients within this complex system”: McClure, at para. 2. These words, written in the context of solicitor-client privilege, are equally apt to describe the centrality to the administration of justice of the lawyer’s duty of commitment to the client’s cause. A client must be able to place “unrestricted and unbounded confidence” in his or her lawyer; that confidence which is at the core of the solicitor-client relationship is a part of the legal system itself, not merely ancillary to it: Smith v. Jones, [1999] 1 S.C.R. 455, at para. 45, citing with approval, Anderson v. Bank of British Columbia (1876), 2 Ch. D. 644 (C.A.); McClure. The lawyer’s duty of commitment to the client’s cause, along with the protection of the client’s confidences, is central to the lawyer’s role in the administration of justice.

We should, in my view, recognize as a principle of fundamental justice that the state cannot impose duties on lawyers that undermine their duty of commitment to their clients’ causes. Subject to justification being established, it follows that the state cannot deprive someone of life, liberty or security of the person otherwise than in accordance with this principle.


The Increasing Burden on Canadian Businesses

The following article appeared in the March 2015 edition of The Canadian Immigrant.

Canada’s government views itself as being a government that has reduced administrative burdens for Canadian businesses. Indeed, the House of Commons recently passed legislation that states that every new regulation that imposes a new administrative burden on Canadian business must result in an existing regulation being amended or repealed. Under its Red Tape Reduction Action Plan, the Canadian government has announced that it is committed to streamlining the regulatory approval processes and reducing reporting requirements and information demands.

Canadian employers of foreign nationals and prospective immigrants can be forgiven for viewing these proclamations and pronouncements with skepticism.

Administrative burden of the LMIA regime

Since 2013, the now-called Employment and Social Development Canada (ESDC) has made the labour market impact assessment (LMIA) regime excessively administratively cumbersome.

ESDC has increased the LMIA application fee from $0 to $275 to $1,000. It has introduced exceedingly more stringent recruitment requirements on employers wishing to obtain LMIAs to permanently retain their foreign workers and help them transition to permanent residency. For reasons that I still don’t understand, ESDC has decided to not publicize some of its recruitment requirements, a decision which has resulted in many employers conducting recruitment and submitting applications that are guaranteed to fail.

In April 2014, ESDC imposed a moratorium on most LMIAs from the food services sector, and suspended existing LMIAs. In June 2014, it introduced LMIA foreign worker caps that took effect immediately. Since June 2014, ESDC has quietly changed numerous LMIA requirements by simply editing its website, and not providing any notice to employers that a change had been made.

Contrary to the Red Tape Reduction Action Plan, ESDC’s new compliance regime has greatly increased the documentation requirements of employers utilizing the LMIA system. Employers must keep all documents related to their LMIA applications, including resumés, for six years. Most employers can expect ESDC to randomly audit them, during which the employers will have to provide extensive documentation about their business to ESDC, including even tracking down paystubs. Incredibly, ESDC compliance audits are done exclusively by mail. The result is that a process that could take days often takes months.

It is not surprising that in 2015 the Federal Court stated that ESDC’s requirements were increasing the costs of hiring, training and scheduling workers.

When the Government of Canada introduced the amendments to the Immigration and Refugee Protection Regulationsthat resulted in the new LMIA system, it stated as part of its stated commitment to reducing the administrative burden on businesses that it had concluded that the administrative burden and cost to employers of the new LMIA regime was (excluding the increase to the LMIA application fee) only a combined total of $21 per business. Employers who are rummaging through filing cabinets locating resumes that they received five years ago can be forgiven for being skeptical of this claim.

Administrative burden of express entry

While the stated $21 per business administrative burden for the overhaul to the LMIA system is questionable, the Government of Canada’s statement that the introduction of the express entry system does not result in any administrative cost to businesses is laughable.

Prior to the introduction of express entry, the administrative cost of Canadian employers wishing to retain their skilled foreign workers on a permanent basis was generally limited to the employers providing reference letters for Canadian experience class applications.  Under express entry, however, almost all prospective economic immigrants must have either a provincial nomination certificate, or a job offer supported by a LMIA, in order to immigrate to Canada.  The administrative burden to employers, especially those who have to obtain a LMIA, is much greater than it was before express entry.

Employers who are currently commencing recruitment for LMIAs, or supporting provincial nomination program applications, in order to ensure that their current employees can be retained on a full-time and permanent basis can be forgiven for not believing the Government of Canada’s statement that express entry does not impose any burden on them.

Frustration is no surprise

Since 2013, ESDC and CIC have greatly increased the administrative burden to Canadian businesses. The regulatory approval process for Canadian employers seeking to employ foreign workers and prospective immigrants soared, as did reporting requirements and information demands. While there may be legitimate policy reasons for ESDC’s and CIC’s changes, the Government of Canada should not be surprised when employers react with frustration to claims of a streamlined administrative environment.


Spousal Sponsorship Application Processing Times Soaring under Conservatives

On March 1, 2015, both the Ottawa Sun and the CBC  reported that protesters demonstrated in front of the Citizenship and Immigration Canada (“CIC”) building on Laurier Avenue in Ottawa.  As the CBC reported:

Canadians who fall in love with someone of another nationality can face daunting obstacles to starting a life together in Canada. If their spouse is living here already, they face a 25-month waiting period for their application to be processed. That waiting period has grown longer over the past two years, leaving thousands of families in limbo.

It is not only spouses in Canada whose applications are experiencing processing delays.

Continue reading “Spousal Sponsorship Application Processing Times Soaring under Conservatives”



Increased Fees and Compliance in the International Mobility Program

On February 11, 2015, the Government of Canada publicized amendments to the Immigration and Refugee Protection Regulations that will affect most applicants in the International Mobility Program (the “IMP“).

The IMP includes all streams of work permit applications that are exempt from the Labour Market Impact Assessment (“LMIA”) process, including workers covered by free trade agreements, people participating in exchange programs like International Experience Canada (“IEC”), provincial nominees, intra-company transferees, post-graduate work permit holders, etc.

In reviewing the changes described below, it is important to understand the distinction between a closed work permit and an open work permit. A closed work permit limits a foreign worker to a particular employer. An open work permit allows the foreign worker to work for any employer.

  • The changes consist of:
    • Requiring that employers of prospective closed work permit holders in the IMP provide information to Citizenship and Immigration Canada (“CIC”) before their prospective employees apply for work permits;
    • Requiring that employers of prospective closed work permit holders pay a $230.00 “employer compliance fee” per employee before their prospective employees apply for work permits; and
    • Introducing a new $100.00 “privilege fee” on open work permit applicants.

The Government of Canada has announced that the above changes will all take effect on February 21, 2015.

Continue reading “Increased Fees and Compliance in the International Mobility Program”


The APEC (Asia-Pacific Economic Cooperation) Business Travel Card (ABTC)

In June 2014, the Government of Canada announced that Canadians could now participate in the Asia-Pacific Economic Cooperation (“APEC“) Business Travel Card (“ABTC“) program.   I applied for and quickly obtained one.  Indeed, when I went for my interview I was told by the United States Customs and Border Patrol officer that I was one of the first people to be interviewed.    From what I can tell it appears that very few Canadians have applied for the ABTC.

Indeed, when I mention the very existence of the ABTC most people appear unaware that it even exists.  This is unfortunate.  If you’re a Canadian citizen or permanent resident and you’ve ever sat in frustration at the Chinese Consulate in Vancouver waiting for your visa that will only be valid for a few months, or stood in line gaping at the size of the crowds at the ShenZhen-Hong Kong border crossing, then the ABTC is for you.

Continue reading “The APEC (Asia-Pacific Economic Cooperation) Business Travel Card (ABTC)”


ESDC’s Mail Audits

One of the most perplexing aspects about the Ministry of Employment and Social Development Canada (“ESDC“) is its insistent that all Employer Compliance Reviews be done by mail.  Apparently, as confirmed in this reproduction of internal ESDC correspondence obtained through an Access to Information Act request, it is because the potential for electronic transmission of information to be intercepted by wireless devices is too great.

I’m sure most employers would be willing to take this risk (which is probably less than the risk of something getting lost in the mail) if it meant that the Employer Compliance Reviews took days instead of (often) months.

Compliance