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.


Service Canada “Refusal to Process” in Certain Economic Regions

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 ;
    • Cashiers;
    • 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.


Continue reading “Service Canada “Refusal to Process” in Certain Economic Regions”

Proposed Changes to Temporary Foreign Worker Program Compliance

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.

Continue reading “Proposed Changes to Temporary Foreign Worker Program Compliance”

Moratorium on Labour Market Opinions for the Food Services Sector

On April 24, 2014, Jason Kenney, the Minister of Employment and Social Development, abruptly announced a moratorium on the Food Services Sector’s ability to participate in the Labour Market Opinion (“LMO”) program. Effective immediately, Service Canada will refuse to process LMO applications from employers in the Food Services Sector.  As well, all current LMOs for employers the Food Services Sector are suspended.

The Businesses that are Affected

The businesses that are affected are employers that are classified in the 2002 North American Industrial Classification System as Food Services and Drinking Places.

This industry comprises establishments that are primarily engaged in preparing meals, snacks, and beverages for immediate consumption on and off the premises.  It does not include food services activities that occur within establishments such as hotels, civic and social associations, amusement and recreation parks, and theatres.  However, leased food-service locations in facilities such as hotels, shopping malls, airports, and department stores are included.

Examples of businesses which are included include:

  • Full-Service Restaurants
  • Limited-Service Eating Places
  • Mobile Food Services
  • Food Services Contractors (such as establishments that provide food services to airlines, and operations that run food concessions at sports and similar venues)
  • Caterers
  • Drinking Places

Examples of businesses which are not included in the moratorium include:

  • Organizations that prepare and/or deliver food for the needy
  • Theatre Companies and Dinner Theatres
  • Vending Machine Operators
  • Direct Selling Establishments (such as organizations that sell fruit, vegetables, and other non-prepared food items from mobile equipment)
  • Civic and Social Organizations (that operate a bar for their members)

The Occupations that are Included

For the Food Services Sector, the occupations that are encompassed are the following occupations from the 2006 National Occupational Classification (“NOC”):

  • Food Counter Attendants, Kitchen Helpers, and Related Occupations
  • Restaurant and Food Services Managers
  • Food Services Supervisors
  • Food and Beverage Servers
  • Cashiers
  • Chefs
  • Cooks
  • Bakers
  • Sales, Marketing and Advertising Managers
  • Retail Trade Managers
  • Accommodation Services Manager
  • Other Services Managers
  • Retail Trade Supervisors
  • Executive Housekeepers
  • Dry Cleaning and Laundry Supervisors
  • Cleaning Supervisors
  • Other Service Supervisors
  • Technical Sales Specialists – Wholesale Trade
  • Butchers, Meat Cutters and Fishmongers – Retail and Wholesale
  • Sales Representatives – Wholesale Trade – Non-Technical
  • Retail Salespersons and Sales Clerks
  • Maitres d’hotel and Hosts/Hostesses
  • Bartenders
  • Other Personal Service Occupations
  • Grocery Clerks and Store Shelf Stockers
  • Other Elemental Sales Occupations
  • Security Guards and Related Occupations
  • Light Duty Cleaners
  • Specialized Cleaners
  • Janitors, Caretakers and Building Superintendents
  • Dry Cleaning and Laundry Occupations
  • Ironing, Pressing and Finishing Occupations
  • Other Elemental Service Occupations

The Affect of the Moratorium

There are two main consequences of the moratorium.  The first is that Service Canada will refuse to process LMO applications for any of the above occupations for employers in the Food Services Sector.  They will not accept new applications, and they will be refunding the processing fees of Food Service Sector employers with applications in process.

Secondly, as a result of all existing LMOs in the Food Services Sector being suspended, Citizenship and Immigration Canada (“CIC”) will suspend the processing of work permits while the moratorium is in effect.  CIC has already begun e-mailing work permit applicants confirming same. CIC has not yet indicated whether it will also refund processing fees, nor has Service Canada announced whether it will refund processing fees for unused LMO spots. [Update – In Operational Bulletin 574 – Instructions in regard to the Temporary Foreign Worker Program Food Services Sector Labour Market Opinion and Work Permit Suspensions, CIC instructed officers to suspend processing of work permits without issuing refunds.]

Foreign nationals already working in Canada who have submitted an application to extend their work permit will have implied status if their application was submitted prior to the expiry of their present work permit. This means they will be able to remain in Canada and continue working for the same employer that appeared on their original work permit. They will continue to have implied status until a final decision is made on their application.

Employees in Canada who will be Impacted

The moratorium extends to work permit extensions.  Employees in occupations affected by the LMO moratorium will not be able to extend their employment in Canada through the LMO program.

International graduates on Post-Graduate Work Permits (“PGWP”) are also impacted.  Even though the International Graduates LMO Program does not require that employers demonstrate recruitment, employers seeking to extend the employment of International Graduates beyond the expiry of their PGWP have not been exempted from the moratorium.

Finally, owners and operators of restaurants have not been exempted from the moratorium.


Employers in the Food Services Sector have not been completely shut out of the Temporary Foreign Worker Program.  They can still obtain LMOs for NOCs other than those listed above.

As well, many programs remain available to the Food Services Sector, including the Intra-Company Transferee Program, the Reciprocal Work Permit Program, numerous Provincial Nominee Programs, and, with some exceptions, the Canadian Experience Class.

More information about the moratorium can be found here.

Citizenship and Immigration Canada has released an Operational Bulletin on the moratorium which can be found here.

Please contact us if you have any questions or concerns about these changes.

LMO Q&A: Discrimination to obtain a Labour Market Opinion OPS/BE-003

When reviewing internal Service Canada correspondence, I came across this interesting exchange between a Service Canada officer and a Business Expertise Consultant (“BEC”).  The issue involves a Labour Market Opinion application where a daycare employer told a Service Canada officer that she did not hire a qualified Canadian candidate because he was a male.  The BEC said that a Labour Market Opinion could not be issued because such gender discrimination was contrary to the BC Human Rights Code 

Please note that what I have reproduced below should not be viewed as legal advice.  I obtained a copy of this internal Service Canada question and answer through an Access to Information Act request (the “ATI”).  The reproduction of question and answer has not occurred with the affiliation of the Government of Canada, nor with the endorsement of the Government of Canada.  (I have decided not to reproduce the names of the Service Canada officers involved.) Please e-mail me if you want a copy of the original question and answer contained in the ATI.


Daycare facility with 2 female employees and 10 children. When asked results of recruitement, ER stated she interviewed 6 candidates. Most wanted part time positions, one did not pass interview, one came in 30m late for interview, one was male and ER said she does not feel comfortable hiring male employees. She prefers having female workers and believes female children would feel more comfortable having female caretakers; especially in incidences where they need help with going to the bathroom.


The employer has indicated she is uncomfortable to hire male employees for the position.

Is it appropriate to exclude men?

Can an employer discriminate based on gender?

If she had a qualified male to do the job, can we say there is no labour shortage?


We want to be sensitive with this case (hence sending it to BE for policy clarification) because we are aware that ER’s should not be discriminationg; however, we also understand the employers concern. Your guidance would be appreciated.


Additional information requested

1) What is the SF# for the file in question? SF ███████

2) How many qualified male applicants were refused the position? one

3) What was the explanation for excluding male applicants? She does not feel comfortable working with men at daycare. She believes children would also feel more comfortable with female caretaker. Ex: when they assist little girls to the bathroom.


In British Columbia, the BC Labour Standards Act establishes basic employment standards and conditions in order to promote fair treatment of employees. However, it is the BC Human Rights Code, which directly protects employees and job applicants from

“discrimination based on race, colour, ancestry, place of origin, religion marital status, family status, sex, sexual orientation, physical or mental disability, age (19 years and over), criminal conviction and political belief. II

The Code ensures that

“that employment decisions are based on job related criteria and not discriminatory considerations, And “have the right to be considered for jobs and promotions on the basis of merit.

In the case presented, the employer indicated that a male candidate qualified for the position, however, chose not to hire him because she was not comfortable hiring men, and believed that female children would be more comfortable being assisted by female early childhood educators (ECEs) in the washroom. As there is no basis for discrimination against males and the applicant qualified for the position, there is no basis to support the filling of a labour shortage.


Based on the fact that the employer was able to identify a qualified applicant, there does not appear to be a labour shortage.

supplementary information:

The following is additional information related to the inquiry and the ECE industry that may provide additional insights related to the employer’s cancers and the exclusion of male applicants.

The Director of the BC ECE Association stated that although this industry is dominated by female ECE’s, it is more a result of the fact this was a low paying (industry) and because of archaic gender stereotyping of the role as women’s work. She indicated that this industry faces struggles to include and attract more male ECE’s similar to that experienced by the nursing field.

She confirmed that more men are receiving the training and entering the force, and that men are not excluded from this field based on gender.

The employer’s concerns suggest that the applicant’s gender may pose a risk to female children.

While this may be a reasonable concern for occupations working with children, it could be addressed by requesting criminal checks, reference checks, etc. prior to employment. Also, the parallel to the nursing industry involves a growing recognition of such service positions as professions, which entail an expectation of professional behavior, regardless of the ‘socially uncomfortable’ duties involved (ex. personal care activities).

The BEC’s response serves as a useful reminder for employers (and representatives) to be familiar with their respective province’s human rights legislation.  In British Columbia, for example, the Human Rights Code, [RSBC 1996] Chapter 210, states the following:

Discrimination in employment advertisements

11 A person must not publish or cause to be published an advertisement in connection with employment or prospective employment that expresses a limitation, specification or preference as to race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age unless the limitation, specification or preference is based on a bona fide occupational requirement.

Discrimination in employment

13 (1) A person must not

(a) refuse to employ or refuse to continue to employ a person, or

(b) discriminate against a person regarding employment or any term or condition of employment

because of the race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age of that person or because that person has been convicted of a criminal or summary conviction offence that is unrelated to the employment or to the intended employment of that person.

(2) An employment agency must not refuse to refer a person for employment for any reason mentioned in subsection (1).

(3) Subsection (1) does not apply

(a) as it relates to age, to a bona fide scheme based on seniority, or

(b) as it relates to marital status, physical or mental disability, sex or age, to the operation of a bona fide retirement, superannuation or pension plan or to a bona fide group or employee insurance plan, whether or not the plan is the subject of a contract of insurance between an insurer and an employer.

(4) Subsections (1) and (2) do not apply with respect to a refusal, limitation, specification or preference based on a bona fide occupational requirement.

(The question which of course arises is does the entire Labour Market Opinion scheme contradict the British Columbia Human Rights Code requirement for non-discrimination on the basis of ‘place of origin.’   In brief, the answer is no, as in a string of successive cases has held that there is a distinction between ‘residency’ and ‘place of origin’, and that the Human Rights Code does not prohibit discrimination on the basis of residency.)

Service Canada Significantly Changes Labour Market Opinion Program

On July 31, 2013, the Ministry of Employment and Social Development Canada (“Service Canada“) introduced changes to the Labour Market Opinion (“LMO“) process which took affect immediately.  Today’s changes, as well as previous, recent ones, greatly increase the burden for companies applying for LMOs.  Today’s changes were comprehensive.  We have provided a broad overview of the changes below, however, we encourage you to contact us, or check the website below, for further details.

Today’s Changes

LMO Application Fees

Effective July 31, 2013, employers applying for LMOs must pay a processing fee of $275.00 for each position requested.  The total payment must reflect the number of Temporary Foreign Workers (“TFW“) positions requested on the LMO application (e.g. $275 x number of positions = total payment).  For example, a company requesting a bulk LMO for 25 positions will be required to pay a processing fee of $6,875.00.

Employers who wish to increase the number of positions requested on a LMO application must submit a new LMO application for these positions, with the required documents and fees.

There will be no refund in the event of a negative LMO or if the application is withdrawn or cancelled.  Reconsideration requests will also require the submitting of new application forms and fees.

New Advertising Requirements

The period that employers must advertise positions domestically before applying for LMOs is being increased from two weeks to four weeks.  As well, advertisements must continue to run during Service Canada’s processing of the LMO application.

In addition to advertising on the national Job Bank website or the equivalent provincial/territorial website, employers must prove they have used at least two other recruitment methods that are consistent with the practices for the occupation.  If hiring for a high-skilled position, one of the methods must be national in scope.  If hiring for a low-skilled occupation, employers must demonstrate that they made efforts to target under-represented groups in the labour force.

Specifically, employers seeking to fill high-skilled positions (which includes occupations within National Occupational Classification 0, A, and B) will be required to:

  • advertise on the national Job Bank or its provincial/territorial counterpart for a minimum of 4 weeks;
  • continue to post the Job Bank (or equivalent) advertisement until the date the LMO is issued;
  • advertise on 2 or more other mediums, at least one of which is national in scope, for a period of at least 4 weeks and until the LMO is issued;
  • demonstrate that the advertising medium is appropriate for the position;
  • include the company name, job duties, wage, benefits, skill requirements, and other information, in the advertisement;
  • maintain copies of the advertisements and the results of their efforts for a minimum of 6 years.

Employers seeking to fill high-skilled positions (which includes occupations within National Occupational Classification C and D) will be required to:

  • advertise on the national Job Bank or its provincial/territorial counterpart for a minimum of 4 weeks;
  • continue to post the Job Bank (or equivalent) advertisement until the date the LMO is issued;
  • advertise on 2 or more other mediums, limited to print media and general employment websites, for a period of at least 4 weeks and until the LMO is issued;
  • target underrepresented groups in the employment; and
  • include the company name, job duties, wage, benefits, skill requirements, and other information, in the advertisement;
  • maintain copies of the advertisements and the results of their efforts for a minimum of 6 years.

The new advertising requirements do not apply to the Live-in Caregiver Program, positions related to on-farm in primary agriculture, the Seasonal Agricultural Worker Program, and the Agriculture Stream.

Language Restrictions

Effective immediately, English and French are the only languages that can be identified as a job requirement, both in LMO requests and in advertisements.  An exception exists if employers can demonstrate that a language other than English for French is essential for the job.  The onus will be on employers to demonstrate that a language other than French or English is an essential requirement of the position.


Employers of low-skilled foreign workers will either have to pay for housing or demonstrate that affordable housing is available where the employer is expected to work;

Previous Announcements

Today’s changes further the objectives of a Government of Canada (the “GoC“) announcement on April 29, 2013, in which the GoC also announced that.

  • The Accelerated Labour Market Opinion program is suspended;
  • The Variation to the Prevailing Wage Rate which allowed employers to pay foreign workers 5-15% less than prevailing wage if that is what Canadians were paid is terminated; and
  • The period of Substantially the Same (“STS”) analysis is increased from two years till six.

As well, under regulatory changes that the GoC introduced on June 7, 2013, most employers of foreign nationals will soon need to comply with the following conditions during the course of the employment of the foreign nationals:

  • Be actively engaged in the business in respect of which the offer of employment was made;
  • Comply with federal and provincial laws which regulate employment;
  • Provide the foreign nationals with employment that meets STS requirements;
  • Make reasonable efforts to provide a workplace which is free of abuse, including physical abuse, sexual abuse, psychological abuse, and financial abuse;
  • Not be convicted of human trafficking, unless there has been a pardon granted or a record suspension;
  • Not be convicted, or receive a discharge, of any offence trafficking in persons (or related offence), an offence of a sexual nature (or an attempt) against an employee, an offence causing death or bodily harm to an employee, uttering threats to cause death or bodily harm against an employee, or an offence involving the use of violence (or an attempt) against an employee. In addition, the employer must not be convicted outside Canada of an offence that would constitute one of the above offences if committed in Canada, unless there has been a final determination of an acquittal.

Failure to comply with the above conditions will result in the employer being placed on the Employer Blacklist, which will result in a two-year bar on the employer hiring foreign nationals.

More information about today’s changes can be found here.

As mentioned above, today’s changes were comprehensive.  There are new requirements, new forms, and new procedures.  We strongly encourage you to contact us if you have any questions.

The Impact of the Temporary Foreign Worker Program on Alberta

flickr photo by DCZwick

In August 2011 Teresa Woo-Paw, the Alberta Parliamentary Assistant to the Minister of Employment and Immigration released a report titled Impact of the Temporary Foreign Worker (TFW) Program on the Labour Market in Alberta. The main thrust of the report was that Alberta’s workforce is projected to be 77,000 workers short between 2002 and 2012, with overall demand outpacing supply from 2015, and that Alberta should implement, and the Government of Canada should facilitate, Alberta implementing a program to attract labour through immigration to address the labour shortage.  The report contained numerous recommendations, some of which were accepted by the Alberta government.

The Political Back and Forth Between Jason Kenney and the Government of Alberta

In response to the report, Thomas Lukaszuk, Alberta’s Minister of Employment and Immigration, recently urged the federal government to remove the annual caps on the number of provincial nominees.

The Brooks Bulletin recently reported on Jason Kenney’s, the federal Minister of Citizenship and Immigration, response.  According to the Brooks Bulletin, he stated:

It would almost result in doubling national immigration levels to Canada when 80 per cent of Canadians are saying immigration levels are already high enough or are too high.

I think they are totally disconnected from reality on that.

To be honest with you there’s a tension between the need to keep this a Canada-first program and the need to facilitate filling positions in an efficient way.  We can’t just open up the rules willy-nilly. There has to be some reasonable rules in the program that ensures Canadians are getting the first crack [at jobs].

Although Jason Kenney is probably correct in noting that removing the provincial nomination quotas would result in a dramatic increase in immigration levels, the report contains a fact that should at least cause him to consider reallocating the quota.  The report noted that Alberta and Manitoba are allocated the same number of provincial nominees annually (2010 allocations were 5,000 for each province), despite Alberta receiving almost eight times the number of temporary foreign workers as Manitoba, and its economy being significantly greater.

Complaints About Labour Market Opinions

The report also noted the frustration of Alberta employers with the process for obtaining Labour Market Opinions, and pointed out the following interesting suggestions and criticisms.

  • Employers in the hospitality industry suggested that an employer who owns a number of hotels (for example) could apply for just one LMO to cover several properties.
  • Employers voiced concerns that the current calculation of the prevailing wage rate is problematic for those with employees under collective agreements. When the prevailing wage rate calculation includes unionized workplaces, the perception is that wages may be artificially inflated.
  • Employers expressed concerns that temporary foreign workers who have less experience receive the same wage as a Canadian worker. As a result, this can become a source of friction with Canadian workers, especially when the prevailing wage rates are printed in job ads in small communities and other employers in the same industry are not able to offer the same salary.

I would add to that last comment that the prevailing wage rate also presents difficulties for employers looking to retain people on post-graduate work permits, because they are required to dramatically increase salary from an entry-level wage to the prevailing wage rate, which is often simply out of whack with the employer’s pay scale system.