In order to obtain a positive Labour Market Impact Assessments, an employer must commit to paying a prospective foreign worker at least the prevailing wage for an occupation in a geographic area. The prevailing wage is set by Employment and Skills Development Canada (“ESDC”)/Service Canada. It is a very strict requirement, and Service Canada officers currently have no discretion to vary it.
On June 23, 2014, we wrote about how on June 20, 2014, Citizenship and Immigration Canada (“CIC”) and the Ministry of Economic and Social Development Canada (“ESDC”) announced significant reforms to the Temporary Foreign Worker Program (“TFWP”). One of the changes was:
Introduction of Transition Plans for High-Wage Positions
Employers seeking to hire High-Wage TFWs will now be required to submit Transition Plans to demonstrate how they will increase efforts to hire Canadians, including through higher wages, investments in training and more active recruitment efforts from within Canada. An employer will have to provide a Transition Plan for each position that it is seeking a LMIA for. The requirement that employers provide a Transition Plan has taken effect immediately.
Employers may be exempt from the Transition Plan requirement if they are hiring TFWs for positions which:
- require unique skills (ESDC has stated that two examples include nuclear physicist and senior executives such as Chief Executive Officer);
- have a limited duration of between:
- 1 and 120 days (ESDC has stated that two examples include emergency or warranty work repair technicians / mechanics); or
- more than 120 days to a maximum of 2 year (ESDC has stated that two examples include project-based business consultant, specialized construction engineer).
As part of the Transition Plan, employers are required to conduct the all of the following:
- General Requirements – Employers must conduct at least 3 distinct activities that are designed to recruit, retain, and train Canadian citizens and permanent residents;
- Underrepresented Groups requirement – Employers must conduct at least 1 distinct activity to work with an organization serving underrepresented groups (Aboriginal peoples, youth, immigrants and persons with disabilities) to identify potential candidates for recruitment or training. This activity is additional to that conducted for the minimum recruitment and advertisement requirement. If the underrepresented group is the same, the activities must be different. If the activities are for the same group, they must be substantially different.
- Permanent Resident Requirement – Employers must conduct at least 1 distinct activity that supports a TFW’s permanent transition to Canada. This activity could include assisting with language training.
Employers will be required to report on the results of the commitments they have made in their Transition Plan if they are selected for an inspection, or choose to re-apply for a subsequent LMIA for the same occupation and work location.
In today’s post, I wish to elaborate on the above.
The Application for a Labour Market Impact Assessment (“LMIA”) asks:
Employers should generally be counselled against stating that an offer of employment requires the ability to communicate in a language other than English or French.
In January 2015 the Federal Court released its decision in Frankie’s Burgers Lougheed Inc. v. The Minister of Employment and Social Development Canada, 2015 FC 27 (“Frankie’s Burgers“). Frankie’s Burgers is one of the first Federal Court decisions involving an employer seeking judicial review of a decision of the Ministry of Economic and Social Development Canada (“ESDC“) to not issue a positive Labour Market Impact Assessment (“LMIA“), which was then referred to as a Labour Market Opinion (“LMO“).
Frankie’s Burgers should be read by all representatives and employers who submit LMIAs. In my opinion, the case shows that the Federal Court seems prepared to show much greater deference to ESDC in its administration of the Temporary Foreign Worker Program (the “TFWP“) than it does to both Citizenship and Immigration Canada and the Immigration and Refugee Board. Lawyers who were anticipating that the Federal Court would force ESDC to change some of its (often internal and secretive) policies should also take pause.
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.
(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.
(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.
(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.
(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
- the employer’s name has been added to the employer blacklist referred to in subsection 209.91(3) of the soon to come into effect Regulations.
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.
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.
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.
On June 23, we wrote about how on June 20, 2014, Citizenship and Immigration Canada (“CIC”) and the Ministry of Economic and Social Development Canada (“ESDC”) announced significant reforms to the Temporary Foreign Worker Program (“TFWP”). One of the changes was:
Refusing Low-Skilled Applications in Areas of High Unemployment in Some Occupations
ESDC will refuse to process certain LMIA applications in the Accommodation, Food Services and Retail Trade sectors. Specifically, ESDC will not process LMIA applications for employers if they meet all of the following criteria:
- the employer is applying for an LMIA in a Statistics Canada economic region with an annual unemployment rate over 6%;
- the employer is seeking an LMIA in a specific occupation identified under North American Industry Classification System as Accommodations & Food Service or Retail Sales; and
- the employer is seeking an LMIA in an occupation in one of the following occupations:
- Food Counter Attendants, Kitchen Helpers and Related Occupations ;
- Light Duty Cleaners ;
- Grocery Clerks and Store Shelf Stockers;
- Construction Trades Helpers and Labourers;
- Landscaping and Grounds Maintenance Labourers;
- Other Attendants in Accommodation and Travel;
- Janitors, Caretakers and Building Superintendents;
- Specialized Cleaners; and
- Security Guards and Related Occupations.
In today’s post, I wish to elaborate on the above.
On September 24, 2014, the Ministry of Economic and Social Development Canada (“ESDC“) posted on its website a discussion paper titled “Regulatory proposals to enhance the Temporary Foreign Worker Program and International Mobility Program compliance framework.” ESDC appears to recognize that the existing legal authority to ban a non-compliant employer for two years and revoke associated Labour Market Impact Assessments (“LMIA“) may be too severe in some circumstances and not severe enough in other cases. As such, the Government of Canada is proposing to introduce some compliance activities that are preventative and educational in nature, and others where the penalty for non-compliance is more severe. Specifically, ESDC is proposing to expand the range of bans from two years to include one, five, and ten year bans.
As will be seen below, however, there appears to be alot more “stick” than “carrot” in ESDC’s approach.