As previously indicated in this blog post, the Government of Saskatchewan has taken an increasingly aggressive stance in combating immigration related abuses by consultants, recruiters, and employers. The Government of Saskatchewan has faced difficulties in doing so (including pushback from the courts), however, because of the lack of a statutory framework. It is therefore not surprising that on October 11, 2013, the Government of Saskatchewan proclaimed The Foreign Worker Recruitment and Immigration Services Act (the “Act“) and The Foreign Worker Recruitment and Immigration Services Regulations (the “Regulations“).
According to this news release by the Province of Saskatchewan, the Act and the Regulations will impact immigration consultants and employers of foreign workers as follows:
- Require that immigration consultants be licensed and sign open and transparent contracts with employers and foreign nationals;
- Require that employers of foreign nationals be registered;
- Prohibit employers from charging or recovering recruitment fees from foreign nationals;
- Prohibit unethical conduct against foreign nationals, such as withholding documents or other property, threatening deportation or providing misleading information;
- Allow foreign workers and immigrants to seek compensation if they incur costs that are considered illegal under the Act; and
- Allow fines to be levied of up to $50,000 for an individual and $100,000 for a corporation, and up to one year imprisonment, for those violating the Act.
The Act and the Regulations will also change the way that employment recruiters conduct business. However, those changes are beyond the scope of this post.
Require That Immigration Consultants be Licensed
In addition to existing federal regulations requiring that immigration consultants be members of the Immigration Consultants of Canada Regulatory Council, the Act will also require that immigration consultants doing business in Saskatchewan obtain licenses from the Province of Saskatchewan. A license will only be issued if the Government of Saskatchewan is satisfied that the immigration consultant has complied with, and will continue to comply with, the Act and Regulations.
The Act stipulates that some immigration consultants will have to file security with the Province of Saskatchewan in order to obtain a license. Section 7(1) of the Act states that:
7(1) If the director considers it necessary and in the public interest to do so, the director may require
(a) an applicant to file financial security with the director as part of the applicant’s application;
(b) a licensee whose licence has been suspended to file financial security with the director before the licence is reinstated; or
(c) subject to section 48, a licensee to file financial security with the director at any time during the term of a licence.
(2) No person required to file financial security with the director pursuant to this section shall fail at any time to maintain that financial security.
(3) Financial security filed pursuant to this section:
(a) must be in the amount and in the form that the director considers appropriate; and
(b) may be forfeited in the prescribed manner.
Section 46 of the Act and section 5 of the Regulations together provide that the consultant’s financial security will be forfeited if an immigration consultant does not comply with an order by the Province of Saskatchewan to compensate a foreign national harmed by the immigration consultant’s in breach of the Act and Regulations.
There are significant consequences for immigration consultants who do not obtain licenses from the Province of Saskatchewan. Section 45 of the Act provides that immigration consultants without licenses cannot enforce contracts and retainer agreements.
45 Any person who does not have a licence or a certificate of registration issued pursuant to this Act is not capable of commencing or maintaining any action or other proceeding in any court in Saskatchewan with respect to a contract made for immigration services or recruitment services in whole or in part within Saskatchewan, or against any person resident in Saskatchewan, in the course of or in connection with any immigration services or recruitment services.
As well, immigration consultants who do not obtain licenses will have committed an offence under the Saskatchewan Act, which, as elaborated on below, can result in significant penalties, including imprisonment.
It is important to note that lawyers are exempt from the above licensing requirements. This is perhaps not surprising as the following requirement of the Act would surely be a breach of solicitor client confidentiality:
8(1) For the purposes of clause 31(1)(b) of the Act, every licensee and former licensee shall prepare and retain the following records:
(a) the name, occupation, residential address, rate of wages, telephone number, postal address and email address, if any, of every foreign national who is recruited;
(b) the name, telephone number, postal address and email address, if any, of every foreign national who receives immigration services;
(c) the name, telephone number, business address and email address, if any, of every employer for whom the licensee or former licensee has provided recruitment services;
(d) any contract that the licensee or former licensee has entered into with a foreign national or an employer for the purpose of providing recruitment services or immigration services;
(e) any expenses incurred by the licensee or former licensee in recruiting foreign nationals or providing foreign nationals with immigration services;
(f) the amount of money, if any, paid to the licensee or former licensee by an employer of the foreign national, the date of the payment and the reason for the payment;
(g) the amount of money, if any, paid to the licensee or former licensee by a foreign national, the date of the payment and the reason for the payment;
(h) copies of all applications to government agencies respecting:
(i) a foreign national seeking to enter Canada for the purpose of residing in or visiting Saskatchewan; or
(ii) an employer seeking to hire a foreign worker;
(i) copies of all decisions received from government agencies with respect to the applications mentioned in clause (h);
(j) copies of all correspondence sent to or received from a person respecting recruitment or immigration services provided by the licensee or former licensee.
Immigration consultants will be required to make the above documents available to the Government of Saskatchewan upon request. The Act also contains rather expansive investigative powers, including the ability to enter commercial premises. This would be a clear breach of solicitor-client privilege, and I presume it is part of the reason why lawyers are exempt from this licensing requirement.
Require that Employers be Registered
The media is interpreting the Act as requiring that all employers of foreign workers in Saskatchewan obtain registration certificates from the Province of Saskatchewan. However, the exemption are numerous. Section 6 of the Regulations states:
6(1) For the purposes of [mandatory employer registration, the requirement] of the Act does not apply with respect to employers who hire employees in any of the following classes:
(a) foreign nationals who are on open work permits;
(b) subject to subsection (2), foreign nationals in immigration classes that, pursuant to the Immigration and Refugee Protection Act (Canada) and the regulations made pursuant to that Act, are exempt from the requirement:
(i) to apply for a work permit; or
(ii) to obtain a labour market opinion from the Department of Employment and Social Development of the Government of Canada.
(2) Clause (1)(b) does not apply to a foreign national in any of the following occupational classes:
(a) an occupation that is exempt from the requirement to obtain a labour market opinion because there is an international agreement mentioned in clause 204(a) of the Immigration and Refugee Protection Regulations (Canada), being SOR/2002-227, that governs the work to be performed;
(3) For the purposes of [mandatory employer registration], during the period commencing on the day on which these regulations come into force and ending on the day that is two years after that day, [the registration requirement] of the Act does not apply to an employer who, on the day on which these regulations come into force, is registered with the Saskatchewan Immigrant Nominee Program.
It is not clear why employers of foreign nationals who are working under international trade agreements are required to register, while employers of foreign workers under significant benefit work permits are not. Why does an employer of a NAFTA Intra-Company Transferee have to register with the Province of Saskatchewan, while an employer of a general Intra-Company Transferee does not?
Prohibit employers from charging or recovering recruitment fees from foreign nationals
23(1) Subject to subsection (2), no person shall, directly or indirectly, charge any person other than an employer a fee or expense for recruitment services.
(2) Subsection (1) does not apply with respect to any settlement services provided pursuant to a contract for immigration services.
(3) The term of any contract that requires the payment by any person other than an employer of fees or expenses mentioned in subsection (1) is void and any fee or expense paid may be recovered by the person who paid the fees or expenses in any manner authorized by law.
The Act does not appear to prohibit charging employees for completing Labour Market Opinion applications. It is actually silent on whether assisting employers with such an application constitutes “immigration services” or “recruitment services,” however, the consensus amongst representatives has traditionally been that it is an “immigration service.” In any event, considering that the Ministry of Economic and Skills Development has taken the position that authorized representatives cannot charge employees for their employers’ Labour Market Opinion applications, I know of very few representatives who continue to do so.
22 No foreign worker recruiter, employer or immigration consultant shall:
(a) produce or distribute false or misleading information;
(b) take possession of or retain a foreign national’s passport or other official documents or property;
(c) misrepresent employment opportunities, including misrepresentations respecting position, duties, length of employment, wages and benefits or other terms of employment;
(d) threaten deportation or other action for which there is no lawful cause;
(e) contact a foreign national or a foreign national’s family or friends after being requested not to do so by the foreign national;
(f) take action against or threaten to take action against a person for participating in an investigation or proceeding by any government or law enforcement agency or for making a complaint to any government or law enforcement agency; or
(g) take unfair advantage of a foreign national’s trust or exploit a foreign national’s fear or lack of experience or knowledge.
As well, if a contract for immigration services services is unclear, ambiguous or incomplete with respect to the above requirements, the interpretation least favourable to the immigration consultant prevails. While most of the above requirements are obvious, and are more or less already prohibited in federal legislation, codes of conduct, and tort, the inclusion of these requirements in the Act provide the Province of Saskatchewan with specific regulatory ability to penalize individuals in breach.
This one is very straight forward. Subject to procedural fairness requirements outlined in s. 48 of the Act, the Province of Saskatchewan may order that an employer or an immigration consultant compensate foreign nationals if suffered a loss resulting from an employer’s or a consultant’s breach of the Act and/or Regulations.
Allow Fines and Imprisonment
Offences40(1) No person shall:(a) fail to provide any notice or other document that the person is required to provide pursuant to this Act;
(b) fail to complete any information required on any notice or other document or fail to provide any information required pursuant to this Act;
(c) make or sign any false statement or furnish any false, misleading or inaccurate information to the director, to the minister or to any employee of the ministry with respect to any matter or thing with respect to which information is required pursuant to this Act;
(d) omit to state a fact that is required to be stated or that is necessary to make a statement not misleading in light of the circumstances in which it was made to the director or any employee of the ministry;
(e) destroy, mutilate, alter or fail to retain any records required to be retained pursuant to this Act;
(f) fail to produce any records required to be retained pursuant to this Act to a person entitled to inspect, examine or audit the records;
(g) fail to provide all reasonable assistance when required to do so for the purposes of aiding in the conduct of an inquiry, inspection, examination or audit;
(h) unlawfully obstruct or interfere with the director or any person authorized by the director while making an inquiry, inspection, examination or audit or carrying out duties pursuant to this Act or pursuant to a warrant issued pursuant to section 37; or
(i) fail to comply with any provision of this Act.
The maximum penalties to an individual for breaching the Act are a fine of not more than $50,000 and/or imprisonment of not more than a year.
What strikes me most about the Saskatchewan Act and its Regulations is what it shows about the Province of Saskatchewan’s lack of faith in the ability of the ICCRC to regulates its membership. The ICCRC already prohibits most (if not all) of the unethical behaviour that the Act and the Regulations does.
That the Province of Saskatchewan is now requiring immigration consultants to register and obtain provincial licenses (a requirement which will likely be constitutionally challenged on jurisdictional issues) reveals a lack of confidence in the ICCRC. I have to say… in researching this blog post I was surprised at how opaque the ICCRC’s disciplinary process is. I cannot find on the ICCRC website a page which shows the names of consultants who have received negative citations resulting from complaints. All I could find on the ICCRC website is a link to this PDF, which seems to be a public relations piece that suggests that there was not a single complaint against an ICCRC member during the period of June 30, 2012, to January 31, 2013 that resulted in a negative citation against an immigration consultant.
Compare that to the Law Society of British Columbia (“LSBC”) website, which publicly names every British Columbia lawyer who has received a negative citation from the LSBC. This page even lists current hearings that are ongoing. The LSBC is incredibly transparent, and any member of the public can see that the LSBC takes it regulatory and disciplinary roles very seriously.
Unlike many immigration lawyers, I believe that immigration consultants serve a useful (if not necessary) role in helping people immigrate to Canada. However, there is clearly an emerging lack of confidence in the ability of their regulatory body to “police” its members. The ICCRC must credibility tackle this perception, before more provinces follow Saskatchewan’s lead.