Since July 4, 2012, Minister Instructions have been in place that prohibit temporary foreign workers in Canada from working in a business that is in a sector where there are reasonable grounds to suspect a risk of sexual exploitation of some workers. The Ministerial Instructions define the business sectors where there are reasonable grounds to suspect a risk of sexual exploitation as being strip clubs, escort services and massage parlours.
When receiving applications for work permits made by foreign nationals seeking to work in a business that is in a sector where there are reasonable grounds to suspect a risk of sexual exploitation, officers will not process the applications.
As well, all work permits advise temporary foreign workers of the restriction, as they typically state “not valid for employment in businesses related to the sex trade such as strip clubs, massage parlours or escort services.
Employment and Social Development Canada’s Temporary Foreign Worker Program WIKI provides the following additional guidance.
Sex Industry: An employer that engages in striptease, erotic dance, escort services or erotic massage on a regular basis (eg. daily, weekly or monthly).
- Striptease and erotic dance: activities involving nudity. A business that engages in activities without nudity that may be interpreted as sexually suggestive (e.g. modelling) is not considered to be an employer offering striptease or erotic dance.
- Escort Services: The provision of services that are sexual in nature or for romantic companionship.
- Erotic Massage: The provision of massage services that are sexual in nature. This does not include massage activities undertaken for therapeutic reasons (e.g. performed by Registered Massage Therapists).
- An LMIA application received from an employer that hosts weekly strip dance shows should not be processed.
Where there is a corporate restructuring, merger or acquisition, the holder of a Labour Market Impact Assessment (an “LMIA”) should contact the Department of Employment and Social Development Canada (“ESDC”) to inform them of the change. Whether a new LMIA will be required will depend on a variety of factors, including whether the corporate restructuring, merger or acquisition impacts the prevailing wage, job description and job duties of a foreign worker.
As per the internal ESDC wiki, reproduced below, in cases where employer’s responsibilities are transferred to a different employer through a merger or acquisition, both the original and successor employer must provide details on when the responsibilities of the employer were transferred, and the successor must agree (and acknowledge in writing) to all conditions set out in the original LMIA. Generally, a new LMIA would not be required.
A new LMIA would be required if the acquisition resulted in changes to the job duties or description. In addition, if the officer has serious concerns regarding the genuineness of the new employer, they may require the new employer to submit a new LMIA application and pay the required fees.
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On June 12, 2017 Canada’s Department of Employment and Social Development introduced the Global Talent Stream.
Employers are eligible for the Global Talent Stream if they are hiring unique and specialized talent and if that talent has bent referred to the Global Talent Stream by one of ESDC’s designated partners. The list of designated referral partners for the Global Talent Stream includes the following organizations (as of March 21, 2018):
- Atlantic Canada Opportunities Agency
- BC Tech Association
- Burlington Economic Development Corporation
- Business Development Bank of Canada
- Canadian Economic Development for Quebec Regions
- Cape Breton Partnership
- City of Hamilton’s Economic Development Office
- Communitech Corporation
- Council of Canadian Innovators
- Economic Development Winnipeg
- Edmonton Economic Development
- Federal Economic Development Agency for Southern Ontario
- Genesis (Newfoundland)
- Global Affairs Canada’s Trade Commissioner Service
- Government of Alberta, Alberta Labour
- Government of British Columbia, Ministry of Jobs, Trade and Technology
- Government of Manitoba, Manitoba Education and Training
- Government of Nova Scotia, Nova Scotia Business Inc.
- Government of Ontario, Ministry of Citizenship and Immigration – Ontario Immigrant Nominee Program
- Government of Ontario, Ministry of Economic Development, Job Creation, and Trade – Ontario Investment Office
- Government of Prince Edward Island, Island Investment Development Inc.
- Government of Saskatchewan, Ministry of the Economy
- Halifax Partnership
- ICT Association of Manitoba (ICTAM)
- Innovation, Science and Economic Development Canada – Accelerated Growth Service
- Invest Ottawa
- Invest in Canada
- Launch Academy
- London Economic Development Corporation
- MaRS Discovery District
- National Research Council –
The following is an article that I wrote for The Canadian Immigrant Magazine.
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One of the more frustrating aspects of the Temporary Foreign Worker Program from an application procedure angle can be determining whether ESDC accepts digital signatures, and whether an individual other than the 3rd party representative can sign for the person named as the third party representatives.
Helpfully, the Temporary Foreign Worker Program Wiki appears to answer that digital signatures are accepted in the TFWP, and that if there is no doubt that an individual works in the same law firm as an authorized third party then it is reasonable to accept that this individual can sign as an authorized representative.
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[The following article appeared in the May edition of The Canadian Immigrant. I have slightly modified it for this blog post.]
Back in 2013, Canada’s temporary foreign worker program was rocked by well–publicized stories of abuse. As a result, the Government of Canada introduced a comprehensive compliance regime for employers of foreign workers, and promised to ban companies from being able to hire temporary migrants for two years if they breached the new conditions. In 2015, Canada’s Immigration and Refugee Protection Regulations were further amended to introduce an administrative monetary penalty regime, which would also fine employers for non-compliance.
The number of Canadian employers who have either been banned or fined for non-compliance is currently quite small, although both Immigration, Refugees and Citizenship Canada (IRCC) and the Department of Employment and Social Development (ESDC), the two main government agencies that manage Canada’s foreign worker programs, have indicated that the number is likely to grow in the near future, especially considering new funding announced with Budget 2017 to better protect vulnerable workers and to encourage employers to do more to hire Canadians first.
On March 23, 2017, the Federal Court of Canada released its first publicized decision on an ESDC decision to ban a company from hiring foreign workers for two years. The decision, Farms v. Canada (Employment and Social Development), provides much-needed guidance to both companies and to the government on how foreign worker compliance regime should be interpreted.
Conditions for hiring foreign workers
Employers of foreign workers must agree to comply with numerous conditions outlined in Canadian immigration legislation. The most significant one is the requirement to provide foreign workers with wages and working conditions that are substantially the same as — but not less favourable than — those set out in their offers of employment.Read more ›
Procedural fairness in Labour Market Impact Assessment (“LMIA“) applications is relatively low. In Frankie’s Burgers, the first reported Federal Court decision on the matter, the Court stated that (citations removed):
The requirements of procedural fairness will vary according to the specific context of each case. In the context of applications by employers for [Labour Market Impact Assessments], a consideration of the relevant factors that should be assessed in determining those requirements suggests that those requirements are relatively low. This is because, (i) the structure of the [LMIA] assessment process is far from judicial in nature, (ii) unsuccessful applicants can simply submit another application, and (iii) refusals of [LMIA] requests do not have a substantial adverse impact on employers, in the sense of carrying “grave,” “permanent,” or “profound” consequences.
However, as noted in the Kuzol decision, while the duty of procedural fairness in a LMIA application may be at the low end of the spectrum, it is not non-existent.
If an officer with the Department of Economic and Social Development (“ESDC“) relies on extrinsic evidence in reaching a decision, then there is a duty to disclose that evidence to the employer prior to the decision being made.
Extrinsic evidence does not include information that is publicly available on websites that are generally accessible to the public.
It does, however, include information derived from third parties that is not publicly available. For example, in the LMIA context, if an ESDC officer calls a third party to confirm whether there is a labour shortage in an area, and the information that the third party contradicts what the employer submitted to ESDC, then the officer must provide the employer with an opportunity to respond to the information that the third party provided.Read more ›
The Department of Employment and Social Development’s (“ESDC“) Agricultural Stream allows employers to hire temporary foreign workers (“TFWs“)for a maximum period of 24 months when Canadians and permanent residents are not available. The program was created to reduce differences between the Seasonal Agricultural Workers Program (“SAWP“) and the regular Labour Market Impact Assessment (“LMIA“) stream. The Agricultural Stream applies to TFWs entering Canada from any country.
Information can be found on the ESDC website here: http://www.esdc.gc.ca/en/foreign_workers/hire/agricultural/overview.page
The following are frequently asked questions about the program as reproduced from the TFWP Wiki. This Wiki was obtained through an Access to Information Act request, and may be out of date by the time you read this. The reproduction did not occur with the affiliation of the Government of Canada. The full reproduction can be found in the PDF below.Read more ›
Labour Market Impact Assessment (“LMIA“) applications typically take 1-4 months to process. However, the Department of Employment and Social Development Canada (“ESDC“) processes LMIAs for in-demand occupations (skilled trades), highly paid occupations (top 10%) or short-duration (120 days or less) entries within a 10 business day service standard.
To be considered a High-Demand LMIA, the position must be for a skilled trade on the list of eligible occupations below, and the wage being offered for the position must be at, or above, the provincial / territorial median wage where the job is located.
Tables about unemployment, Median wages, 10-day speed of service.
Contractors and supervisors, electrical trades and telecommunications occupations
Contractors and supervisors, carpentry trades
Contractors and supervisors, other construction trades, installers, repairers and servicers
Contractors and supervisors, mechanic trades
Contractors and supervisors, heavy equipment operator crews
Supervisors, logging and forestry
Supervisors, mining and quarrying
Contractors and supervisors, oil and gas drilling services
Logging machinery operators
8252 / 8253
Agricultural service contractors, farm supervisors and specialized livestock workers
Supervisors, mineral and metal processing
Supervisors, petroleum, gas and chemical processing and utilities
Supervisors, plastic and rubber products manufacturing
Central control and process operators, mineral and metal processing
7351 / 7352
Power engineers and power systems operators
Water and waste treatment plant operators
Machinists and machining and tooling inspectors
Sheet metal workers
Structural metal and plate work fabricators and fitters
Welders and related machine operators
Electricians (except industrial and power system)
Power system electricians
Electrical power line and cable workers
Telecommunications line and cable workers
Telecommunications installation and repair workers
Steamfitters, » Read more about: Priority Processing in LMIA Applications »
The Application for a Labour Market Impact Assessment (“LMIA”) asks:
Employers should generally be counselled against stating that an offer of employment requires the ability to communicate in a language other than English or French.Read more ›
Please note that none of the information on this website should be construed as being legal advice. As well, you should not rely on any of the information contained in this website when determining whether and how to apply to a given program. Canadian immigration law is constantly changing, and the information above may be dated. If you have a question about the contents of this blog, or any question about Canadian immigration law, please contact the Author.
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