Labour Market Impact Assessments- Prevailing Wage

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.

Continue reading “Labour Market Impact Assessments- Prevailing Wage”


Several LMIA Changes Taking Effect April 30, 2015

The Ministry of Employment and Social Development (“ESDC”) has announced that there will be several changes to the Temporary Foreign Worker Program (“TFWP”) that will take effect on April 30, 2015.

The changes are:

  • Implementation of new High and Low-wage Streams
  • Updating the Provincial / Territorial Median Hourly Wages
  • Increasing Worker Protections
  • Modifying the Method for Calculating the Cap on Low Wage Positions
  • Implementing the Labour Market Impact Assessment (“LMIA”) system fully in Quebec
  • Updating Regions of Refusal to Process

Continue reading “Several LMIA Changes Taking Effect April 30, 2015”


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.


Government of Canada Overhauls the Temporary Foreign Worker Program

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”).  The changes will affect all employers of Temporary Foreign Workers (“TFWs”) in Canada.  Many of the changes take effect immediately, with the remainder being phased in over the next year in a half.
 
The reforms are comprehensive, and include the following:

  • Labour Market Impact Assessment Program
    • New Labour Market Information Assessment (“LMIA”) Replaces the Labour Market Opinion (“LMO”)
    • LMIA Application Fee of $1,000
    • Guaranteed 10-Day Processing For Certain Occupations
    • Dividing LMIAs into High-Wage and Low-Wage Positions
    • Cap on Low-Wage TFWs for Individual Companies
    • Refusing Low-Skilled LMIA Applications in Areas of High Unemployment in Some Occupations
    • Reducing the Duration of Low-Wage Work Permits
    • Introduction of Transition Plans for High-Wage Positions
  • Stronger Enforcement and Tougher Penalties
    • Increasing the Number and Scope of Inspections
    • Monetary Fines for Employers Who Break the Rules
  • International Mobility Programs (“IMP”)
    • IMP Replacing LMO-Exempt Work Permit Program
    • New Fee and Employer Compliance System
    • New Privilege Fee for Open Work Permit Applicants
    • Amending Provincial Annexes
    • International Experience Canada Program Being Restructured
    • Intra-Company Transfer Program – New Rules for Specialized Knowledge Applicants

As noted above, the Labour Market Opinion (“LMO”) program is being renamed the Labour Market Impact Assessment (“LMIA”).  As well, the International Mobility Program (“IMP”) is replacing work permit applications which were previously classified as LMO-exempt.   
 
Please note that what follows below provides only a summary of the changes.  We have provided at the end of this newsletter a link to a 41-page Government of Canada PDF which provides a more comprehensive overview.

Labour Market Impact Assessment Program

New Labour Market Information Assessment (“LMIA”) Replaces the Labour Market Opinion (“LMO”)
 
In addition to current LMO recruitment and application requirements, the LMIA application will require that employers state the number of Canadians that applied for the position, the number of Canadians that the employer interviewed, and an explanation of why those Canadians were not hired.
 
In order to verify employer attestations, the Canada Job Bank will soon feature a Job Matching Service that will allow Canadians to apply directly through the Canada Job Bank for jobs that match their skills and experience.  ESDC has stated that LMIA officers will thus be better aware of the number of potential applicants and how closely their skills align with available jobs, which presumably means that LMIA officers will have access to applicant information.
 
ESDC has also announced that starting in 2015 its officers will also be able to access Employment Insurance (“EI”) program data and other internal sources to accurately determine the availability of qualified Canadian workers. For example, LMIA program officers will know if employers requesting TFWs have recently laid-off Canadian workers. Additionally, program officers will be able to determine if employers are requesting TFWs in regions where there are unemployed Canadians with the appropriate skills. Finally, EI data will be used to help match unemployed workers with available jobs. 
 
Finally, ESDC will be publishing a quarterly list of employers who received a positive LMIA. The objective is that if qualified Canadian applicants who applied for a position will be able to see if the company ultimately hired a TFW.
 
LMIA Fee of $1,000
 
Previously, a LMO cost $275.00 per position.  Under the LMIA, the application fee is being increased to $1,000.00 for every TFW position that an employer requests.  This increased fee is now in effect.
 
There will be no refund in the event of a negative LMIA, or if the employer cancels or withdraws the application.  Employers requesting to have their LMIA application reconsidered as a result of a negative LMIA must submit a new application and processing fee for each position.
 
Additionally, ESDC will in the summer of 2015 be imposing an estimated $100 “privilege fee” on employers applying for LMIAs.  This will in effect result in the LMIA fee being $1,100.00 per position.
 
Guaranteed 10-Day Processing For Certain Occupations
 
ESDC has announced that effective immediately LMIA applications for the highest-demand occupations (skilled trades), the highest-paid occupations (top 10 percent), or short-duration work periods (120 day or less) will now be processed within a 10-business-day service standard.
 
Dividing LMIAs into High-Wage and Low-Wage Positions 
 
Previously, the LMO program was divided into High-Skilled and Low-Skilled positions based on the National Occupational Classification (“NOC”).  Under the LMIA, wage levels will now replace the NOC system as the main criteria for administering the TFWP. 
 
Jobs with wages below the provincial or territorial median wage will be considered “Low-Wage.”  Jobs which pay at or above the provincial or territorial median wage will be considered “High-Wage.”
 
The current Median Hourly Wages by Province / Territory are:

Province/Territory Wage ($/hr)
Newfoundland and Labrador $ 20.19
Prince Edward Island $ 17.26
Nova Scotia $ 18.00
New Brunswick $ 17.79
Quebec $ 20.00
Ontario $ 21.00
Manitoba $ 19.00
Saskatchewan $ 21.63
Alberta $ 24.23
British Columbia $ 21.79
Yukon $ 27.93
Northwest Territories $ 32.53
Nunavut $ 29.96

It is important to note that this does not mean that Prevailing Wage for an individual position is being abolished.  Rather, the High-Wage / Low-Wage distinction refers to the overall administration of the program. As noted below, there are important distinctions in how ESDC will process LMIA applications depending on whether they are High-Wage or Low-Wage.
 
Cap on Low-Wage TFWs for Individual Companies
 
Employers with 10 or more employees applying for a new LMIA are subject to a cap of 10 percent on the proportion of their workforce that can consist of Low-Wage TFWs.
 
TFWs currently working at work sites over the cap will be allowed to continue working at those sites until their existing work permits expire.  As well, to provide employers who are above the 10 percent cap time to transition and adjust to this new cap, it will be phased in over the next couple of years.  For those employers that currently have a Low-Wage TFW workforce that is above the cap, effective immediately, when those employers apply for a new LMIA they will be limited at 30% or frozen at their current level, whichever is lower. This transition measure will be further reduced to 20 percent beginning July 1, 2015 and reduced again to 10 percent on July 1, 2106.
 
Employers with fewer than 10 employees nationally, including the vacant positions they are considering to hire foreign workers for, are exempt from the cap requirement.
 
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.

Reducing the Duration Low-Wage of Work Permits 
 
The duration of work permits for Low-Wage positions will be reduced from the current two-year standard duration to a one-year period.
 
As well, CIC will reduce the cumulative duration that Low-Wage foreign workers can work in Canada. The exact amount has not yet been specified.
 
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.

Stronger Enforcement and Tougher Penalties

Increasing the Number and Scope of Inspections
 
ESDC will be increasing the number of inspections that it conducts so that one in four employers using temporary foreign workers will be inspected each year. 
 
ESDC has the authority to immediately inspect complaints of possible rule-breaking, conduct warrantless on-site visits, interview TFWs and other employees with their consent, and compel employers to provide documents for the purpose of verifying their compliance with the TFWP. As of the fall of 2014, ESDC will be able to compel banks and payroll companies to provide bank records and payroll documents to help inspectors verify that employers with the rules of the TFWP.
 
As well, the Canada Border Services Agency (the “CBSA”) is receiving new financial resources to increase its capacity to criminally investigate suspected cases of offenses by employers.  Under the Immigration and Refugee Protection Act, employers who intentionally misrepresent information or withhold information or provide false information to contravene immigration laws, including lying in a LMIA application, can be fined up to $100,000 and imprisoned for up to five years or both. The CBSA is expected to begin prosecuting numerous investigations in the autumn of 2014.
 
Monetary Fines for Employers Who Break the Rules
 
Beginning in fall 2014, the Government will impose fines of up to $100,000 (depending on the severity of the offence) on employers who break the rules of the TFWP.  In addition to standard rules such as not underpaying employees, employers may be fined for misstatements and falsehoods in LMIA applications.
 
ESDC will publicly disclose the names of employers who have been fined and the amount of that fine.

International Mobility Programs

 
New Fee and Employer Compliance System
 
Currently, many prospective TFWs are able to apply for work permits without a LMO assessment at a Canadian Port of Entry. 
 
Under the reforms, employers hiring LMIA-exempt workers under the IMP will be required to submit the job offer and other relevant information to CIC.  Prospective TFWs will not be able to apply for a work permit until their employer has done so.  CIC has committed to this change, which it has not provided any additional information on, coming into effect by the summer of 2015.  The reason for the delay is presumably this reform will require significant amendments to Canada’s Immigration and Refugee Protection Regulations
 
CIC has also announced that it will be creating a compliance system for the IMP which will presumably be similar to the LMIA system.
 
A new Work Permit application fee of $230.00 will also be introduced in the summer of 2015.    
 
New Privilege Fee for Open Work Permit Applicants
 
CIC is introducing a $100.00 Work Permit privilege fee for open work permit applicants. As with the LMIA $100.00 “privilege fee,” this fee is expected to be introduced in the summer of 2015.
 
Amending Provincial Annexes
 
Five provincial/territorial governments (Alberta, British Columbia, Ontario, Nova Scotia and Yukon) currently have annexes to their immigration agreements with the Government that establish LMIA exemptions in their jurisdiction.
 
The Government of Canada has given notice to provinces that it is changing the existing agreements, and removing many of the exemptions.
 
International Experience Canada Being Restructured
 
The International Experience Canada program is currently under review.  There is currently a large imbalance between the number of foreign nationals arriving in Canada compared to the number of Canadians participating abroad.  As such, CIC will be enhancing its efforts to promote the program to Canadians. At the same time, it will review each mobility agreement on a country-by-country basis to ensure that the rate of reciprocity is improved.  This may feature quota reductions.
 
Intra-Company Transfer Program – New Rules for Specialized Knowledge Applicants
 
On June 92014, CIC reformed the Intra-Company Transferee – Specialized Knowledge stream so that applicants demonstrate a high degree of both proprietary knowledge and advanced expertise.  As well, specialized Knowledge applicants must be paid the Prevailing Wage for their position.  Non-cash per diems, including hotel and transportation, are not to be included in the calculation of the overall salary.  This change took effect on June 9, 2014.
 
More information about the changes to the TFWP can be found here.

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


LMO Q&A: Employer Doesn’t Have Business License OPS/BE-004

During a consultation last month, a foreign worker and an employer told me that the employer was interested in obtaining a Labour Market Opinion to continue employing the foreign worker.  The employer, however, did not have a business license, and for various reasons refused to obtain one.  The employer wanted to know whether Service Canada would still approve his Labour Market Opinion.  While I did not know the answer off the top of my head, I luckily had a copy of the internal TFWP OPS/BE QUESTIONS AND ANSWERS document that I have slowly been uploading to this blog.

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.

BACKGROUND:

The above named employer submitted a Labour Market Opinion application December 21, 201[2], seeking a “Licensed Practical Nurse”. The ER has advised that the senior living facility is set to open June 17, 2013 and have residences move in by July. The ER stated that the centre has been delayed in opening due to a construction fire; consequently the City of Regina will not issue a business license.

QUESTION/ISSUE:

Given that the ER is currently unable to obtain a business license through the City of Regina (a license that has been determined to be required by the city), is the assessing officer required to request one of the following documents in lieu of the license:

  • Business lease
  • T4 Summary
  • T2 Schedule 100 & 125
  • T2125
  • Business contracts
  • Attestation from professional

OFFICER & TL RECOMMENDATIONS:

It appears that the ER cannot pass genuineness because the city will not issue the business a BL. However, before proceeding with a refusal on genuineness, we wanted to know if policy states ER’s should be given the opportunity to provide any of the above noted documentation, including an attestation from a professional?

BE CONSULTANT RESPONSE:

QUESTION

It appears that the ER cannot pass genuineness because the city will not issue the business a BL. However, before proceeding with a refusal on genuineness, we wanted to know if policy states ER’s should be given the opportunity to provide any of the above noted documentation, including an attestation from a professional?

ANSWER:

The employer, ███████ was identified as a new employer (has never applied to the TFWP for an LMO or AEO before). Consequently, the request is subject to a Level-2 assessment of the Genuinenss factor Actively Engaged, to ensure that employment offer is from an employer that legally exists and operates a business related to the job offer made to the TFW. Although Section 3.5.4.1.2 Assessing Actively Engaged, states

“:Since not all municipalities require a business license/permit to operate, new employers may a/so submit specified Canada Revenue Agency (CRA) documentation (T4 Summary, T2 schedules 1001125, T2125), business contract(s) for work in Canada or an attestation by a lawyer, notary public or chartered accountant.n

The alternative documents may be requested when a business lisence is not required by the municipality. In the scenario described, the municipality clearly requires a business license for this type of business to operate. Specifically, the City of Regina will not provide the employer a business lisence because of the fire and construction delays.

RECOMMENDATION:

The business license is the document required to satisfy the level 2 genuineness factor actively engaged.  Should the employer be unable to provide this, they are unable to demonstrate that they are currently actively engaged in the business according to the TFWP.

A Note on Genuineness

I have previously blogged on genuineness in the LMO context here, and reading that post will provide some context to the Business Expertise Consultant’s answer.

 


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.

BACKGROUND:

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.

QUESTION/ISSUE:

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?

OFFICER & TL RECOMMENDATIONS:

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.

BE CONSULTANT RESPONSE:

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.

answer:

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.

recommendation:

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.)


LMO Q&A: Who Can Be the Employer Contact? (OPS/BE-001)

My decision to publish e-mail exchanges between immigration representatives and Citizenship and Immigration Canada which I received through Access to Information Act requests has been met very favourably by blog readers.

I am now expanding this to internal correspondence between Temporary Foreign Worker Program officers at Service Canada and Business Expertise Consultants.

The following is an exchange between a Service Canada officer and a Business Expertise Consultant regarding who can be the employer contact in a LMO application.  My thoughts on the exchange are at the bottom of the reproduction.

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.

Background:

███████ has a 3’d party ███████ and his mailing address is ███████. This ID has 26 pages of activity in FWS, the last of which is a confirmation on 2011-10-12.

This 3’d party ID has a note dated, 2008/11/21, which states, “November 20, 08 Phone call to ███████ Employer states that the signature on the application, third party representative form and employment contract was not hers.”  The SF note for the file in question, SF ███████ states, “Spoke to ER Nov 20, 08. After attempting to verify application details the employer, ███████ stated that she was unaware of the employment contract and any of her responsibilities, including providing airfare ensuring reasonable and proper accommodations for the workers. I asked her if she had signed the application form, third party representative form and the employment contract. She stated “No”. I then asked her what her signature looked like and If she used the full last name of ███████ she stated that you can clearly see the full when she signs her name. All three forms, the application, third party representative form and the contract had a clearly printed signature reading ███████ which is not how the employer signs her name.”

I was unable to find the SROA, “Supplementary Record of Assessment” on the Index to see if there is any other documented information recorded about this 3rd party. As of April 15, 2011, officers have been instructed to refuse applications if the 3rd party is involved in recruitment for the ER and is not licensed by the province – per AFTA requirements. This 3rd party is in our system as an individual.  This could possibly explain why there has been no 3rd party activity since 2011. He is not a member of the ICCRC either.

SF # ███████ have ███████ listed as the ER contact, and it is his signature on the applications, as the “Accounts Officer”. The mailing address on the applications is ███████ SF ███████ also has his signature as the employer on the ER/EE contract.

I searched ███████ name as an ER contact in FWS, and found two ER IDs:

ER ID ███████ (with the 2 files above pending), and

ERID ███████

ER ID ███████ is a new ER and the first application ███████ when the requested business documents were not received.  The second application ███████ yesterday, with the following SF note:

“2013/03/06-spoke withER contact ███████ to verify file on Feb 28th and verified that contact is the accountant who represents other companies on other LMOs; requested copy of signed authorization letter from ER within next 24 hours; as of today; letter not recv’d
Unable to complete ER verification as contact did not know information and does not work solely for ER but has own accounting office and is ER’s accountant.
PWR (Wic Median)= 20.00; ER wage= 17.50-not met; on app or ads

███████

Letter mailed to business; not faxed to ER contact to ensure ER gets copy of ███████ ·BMoisan”

Per this officer’s discussion with ███████ it appears that he is representing himself as the employer on more than the two IDs I was able to find in my FWS search.

Question/Issue:

If ███████ is an “Accountant”, is he able to list himself as the employer contact on applications?  If he is able to be the employer contact, is he also permitted to sign the application as the employer? Is he permitted to represent himself as the employer on the Employer/Employee contract and sign that as well?

If any/all of the above is permitted, should we not be asking for something in writing from the employer which states that he is authorized to hire foreign workers on their behalf? I don’t believe such a letter would support the employer/employee relationship which is to exist before an LMO is approved. Does the employer contact have to be an employee of the company which is hiring the workers? If so, can we ask for payroll records verifying that he is an employee?

If ███████ is not an employee, and it is determined that he cannot in that case be considered the employer contact or have signing authority on an application or ER/EE contract could notification be given to all officers with Instructions on how to proceed with applications listing him as the ER?

BE Consultant Response:

QUESTION/ANSWER

1) If ███████ is an “Accountant”, is he able to list himself as the employer contact on applications?

Yes, ███████ can be listed as the employer contact, provided he is employed by and considered an employee of the company. For example on the company payroll an ER/EE relationship exists. However, if he is contracted by the company to provide accounting services, the required ER/EE relationship to act as an employer contact does not exist.

2) If he is able to be the employer contact, is he also permitted to sign the application as the employer?

Yes, if he is a bona fide employee and has signing authority, he is permitted to sign the application.

3) Is he permitted to represent himself as the employer on the Employer/Employee contract and sign that as well?

The contract asks for the following information:

The Employer: ——–

Business Name (if a Business, provide key business contact under last name/first name):

Last Name : _________________ ___

First Name:——————

Address: ____________________________ _

Phone Number:———————–

FaxNumber: ———————–

Email Address:——————

“The Employer” when referring to the contract is” The business Name”. If he is representing himself as the “key business contact, yes, as long as he is a bona fide employee and has signing authority, he is permitted to sign the contract as well.

4. If any/all of the above is permitted, should we not be asking for something in writing from the employer which states that he is authorized to hire foreign workers on their behalf? I don’t believe such a letter would support the employer/employee relationship which is to exist before an LMO is approved.

Yes, if a conversation with the contact leaves doubt or concerns, you can ask for a letter on company letterhead signed by the Owner/President of the company stating that the contact indicated on the application is an employee and employed by (on the payroll, not contracted) the company and has signing authority.

5. Does the employer contact have to be an employee of the company which is hiring the workers?

Yes, the employer contact does have to be an employee (on the payroll) of the company.

6. If so, can we ask for payroll records verifying that he is an employee?

No, we are not permitted to ask for payroll records for verification of employer contact; however as stated above, if concerns arise during a conversation with the contact, you can request a letter signed by the Owner/President verifying the contact’s employment situation with the company.

7. If ███████  is not an employee, and it is determined that he cannot in that case be considered the employer contact or have signing authority on an application or ER/EE contract – could notification be given to all officers with instructions on how to proceed with applications listing him as the ER?

No, formal notification for instruction on future applications would not be communicated out by Business Expertise; however, Program Delivery can determine if the information and direction should be shared with their staff.

CONSIDERATIONS 

If it is determined that ███████ is not employed by the company and cannot act as the employer contact, the employer could appoint him as a Third Party Representative. The appropriate documents (Appointment of Representative and Annex) would have to accompany a new application. The new application and contract would have to be submitted with the appropriate employer signatures in place and would be assessed accordingly.

Generally, the employer contact does have to be an employee (on the payroll, not contracted) of the company. There may be a rare case where a non-arm’s length relationship exists between two entities and an employee of one of the entitites may act as the employer contact for the other entity (e.g. parent/subsidiary where parent company manages HR for subsidiary.)

Additional guidance may be sought in such cases.

RECOMMENDATION

To have a conversation with the contact ███████ to determine if he is an employee.

Example of questions:

  1. Is he an actual employee (on the payroll) of the company
  2. Does he still act as a Third Party
  3. Does he have his own company
  4. Does he do the accounting for any other companies? The application indicates that he is an “Accounts Officer”.

If the conversation leaves doubt; request a letter signed by the Owner/President verifying ███████  employment situation (on payroll or contract) with the company and signing authority status.

In an era of increasing compliance enforcement, it would be in my opinion very foolish if an employer wanted someone who wasn’t an employee to be the employer contact in an Application for a Labour Market Opinion.  Employer contacts can bind an employer to numerous commitments when they submit Labour Market Opinion applications.

I always tell employers that the employer contact person should be:

  • the employee of the company who has the most knowledge about the hiring and recruitment process of the company; and
  • someone who is senior enough that management has confidence in the employees ability to not “really mess things up.”

Both are equally important.


Question & Answer – Renewing IEC Work Permit (IR-08)

The following is an e-mail exchange between an immigration representative and Citizenship and Immigration Canada (“CIC”) regarding International Experience Canada (the “IEC”).  The IEC, more commonly known as the Working Holiday Program (which is actually a program within the IEC), allows young people from several dozen countries to work in Canada on open work permits.  As with any program, questions emerged regarding specific requirements, including whether IEC work permits can be extended.

Please note that what I have reproduced below should not be viewed as legal advice.  I obtained a copy of this internal CIC 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.  Please e-mail me if you want a copy of the original question and answer contained in the ATI.  

Question – May 13, 2013

Dear Sir or Madam:

I wish to seek your advice concerning the following situation.

I have a client, an _______, who came to Canada on a work permit issued to him on ___________ through the International Experience Canada (IEC) program. His work permit is valid to  through the

My client wishes to obtain a renewal of his work permit prior to its expiry. As a result, I would like your advice as to whether he can submit a direct request to CIC Vegreville for an extension of his work permit or does he need an approved labour market opinion from Service Canada in order to submit an extension request of his work permit to CIC Vegreville so he can continue working in Canada.

I await your reply.

Regards,

Answer – May 23, 2013

If your client wishes to obtain a new work permit under the International Experience Canada program, he will first have to apply for another participation with Foreign Affairs and International Trade (DFAIT) and will receive a Conditional Acceptance Letter that he can use to apply for his new work permit. However, it is my understanding that the Irish Quota for 2013 Participations is now full.

If your client has not received his Conditional Acceptance Letter from DFAIT, then he must have his employer obtain a positive Labour Market Opinion (LMO) for him and then submit his application for an extension to the Case Processing Centre in Vegreville (online or by paper) or he must be able to show that he meets the requirements of one of the LMO exemptions. Please see the Temporary Foreign Worker Guidelines (FW) manual for a list of these exemptions.

If your client did apply for a second participation in the IEC program AND received his Conditional Letter of Acceptance then he should complete the “Come to Canada’ question flow as if he was living in Ireland and this will provide him the proper ‘result’. However, he must compete the IMM 1295 Application with the correct information regarding his residency.

There are many things to note about CIC’s answer.

First, on August 31, 2013, CIC announced that it was assuming responsibility for issuing Conditional Acceptance Letters in the IEC.  The release said:

Effective August 31, 2013, Citizenship and Immigration Canada (CIC) will assume responsibility for International Experience Canada (IEC). The program was previously administered by the Department of Foreign Affairs, Trade and Development.

The IEC program provides opportunities for young Canadians and foreign nationals, aged 18-35, to gain travel and work experience in each other’s countries for up to two years.

The transfer of the IEC will allow the program to better align with government priorities and labour market demands in Canada by linking IEC to other immigration programs.  The move will strengthen Canada’s strategy to develop its human capital and attract talent.

Transferring the program to CIC will provide an opportunity to take advantage of the Department’s existing expertise in centralized electronic processing of work permits. CIC will become the one-stop shop for applicants by streamlining the application process for IEC participants at one federal government department.

The program will continue to operate as usual, meaning that the application process will be the same for IEC participants. Applicants will not face an interruption in service as a result of the transfer.

Second, the last paragraph of CIC’s e-mail reveals a significant flaw in CIC’s online system.  In May I spoke with CIC employee who designed the MyCIC portal.  He admitted that there were glitches in the Come to Canada Wizard which was forcing prospective applicants to lie in order to obtain the correct CIC document checklist.  He advised that individuals who did so would not be penalized so long as they were truthful in the actual application, and that they were working on the problem.  However, it appears that the problem has not been fixed, and in this case applicants from within Canada need to pretend that they live abroad in order to obtain the “proper checklist.”  The whole thing is incredibly confusing to applicants.

Finally, given that Labour Market Opinion processing times are steadily increasing, applicants who want to extend their ability to work in Canada need to speak with their employers about applying for Labour Market Opinions several months in advance.