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.
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In January 2015 the Federal Court released its decision in Frankie’s Burgers Lougheed Inc. v. The Minister of Employment and Social Development Canada, 2015 FC 27 (“Frankie’s Burgers“). Frankie’s Burgers is one of the first Federal Court decisions involving an employer seeking judicial review of a decision of the Ministry of Economic and Social Development Canada (“ESDC“) to not issue a positive Labour Market Impact Assessment (“LMIA“), which was then referred to as a Labour Market Opinion (“LMO“).
Frankie’s Burgers should be read by all representatives and employers who submit LMIAs. In my opinion, the case shows that the Federal Court seems prepared to show much greater deference to ESDC in its administration of the Temporary Foreign Worker Program (the “TFWP“) than it does to both Citizenship and Immigration Canada and the Immigration and Refugee Board. Lawyers who were anticipating that the Federal Court would force ESDC to change some of its (often internal and secretive) policies should also take pause.Read more ›
On June 23, 2014, we wrote about how on June 20, 2014, Citizenship and Immigration Canada (“CIC”) and the Ministry of Economic and Social Development Canada (“ESDC”) announced significant reforms to the Temporary Foreign Worker Program (“TFWP”). One of the changes was:
Introduction of Transition Plans for High-Wage Positions
Employers seeking to hire High-Wage TFWs will now be required to submit Transition Plans to demonstrate how they will increase efforts to hire Canadians, including through higher wages, investments in training and more active recruitment efforts from within Canada. An employer will have to provide a Transition Plan for each position that it is seeking a LMIA for. The requirement that employers provide a Transition Plan has taken effect immediately.
Employers may be exempt from the Transition Plan requirement if they are hiring TFWs for positions which:
- require unique skills (ESDC has stated that two examples include nuclear physicist and senior executives such as Chief Executive Officer);
- have a limited duration of between:
- 1 and 120 days (ESDC has stated that two examples include emergency or warranty work repair technicians / mechanics); or
- more than 120 days to a maximum of 2 year (ESDC has stated that two examples include project-based business consultant, specialized construction engineer).
As part of the Transition Plan, employers are required to conduct the all of the following:
- General Requirements – Employers must conduct at least 3 distinct activities that are designed to recruit, retain, and train Canadian citizens and permanent residents;
- Underrepresented Groups requirement – Employers must conduct at least 1 distinct activity to work with an organization serving underrepresented groups (Aboriginal peoples, youth, immigrants and persons with disabilities) to identify potential candidates for recruitment or training.
On June 23, we wrote about how on June 20, 2014, Citizenship and Immigration Canada (“CIC”) and the Ministry of Economic and Social Development Canada (“ESDC”) announced significant reforms to the Temporary Foreign Worker Program (“TFWP”). One of the changes was:
Refusing Low-Skilled Applications in Areas of High Unemployment in Some Occupations
ESDC will refuse to process certain LMIA applications in the Accommodation, Food Services and Retail Trade sectors. Specifically, ESDC will not process LMIA applications for employers if they meet all of the following criteria:
- the employer is applying for an LMIA in a Statistics Canada economic region with an annual unemployment rate over 6%;
- the employer is seeking an LMIA in a specific occupation identified under North American Industry Classification System as Accommodations & Food Service or Retail Sales; and
- the employer is seeking an LMIA in an occupation in one of the following occupations:
- Food Counter Attendants, Kitchen Helpers and Related Occupations ;
- Light Duty Cleaners ;
- Grocery Clerks and Store Shelf Stockers;
- Construction Trades Helpers and Labourers;
- Landscaping and Grounds Maintenance Labourers;
- Other Attendants in Accommodation and Travel;
- Janitors, Caretakers and Building Superintendents;
- Specialized Cleaners; and
- Security Guards and Related Occupations.
In today’s post, I wish to elaborate on the above.
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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.Read more ›
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)
- 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,Read more ›
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.Read more ›
One of the less understood recruitment exemptions in the Labour Market Impact Assessment stream is the exemption for Owner / Operators of a business. The Employment and Social Development Canada website states:
Description: The owner/operator must demonstrate that he is integral to the day-to-day operation of the business and will be actively involved in business processes/service delivery in Canada. In such instances, greater consideration should be given to demonstration by the applicant (owner/operator) that such temporary entry will result in the creation or retention of employment opportunities for Canadians and permanent residents and/or skills transfer to Canadians and permanent residents.
Variation: No advertising or recruitment is required.
Applicability: All Provinces
The Temporary Foreign Worker Program Manual previously stated:
The ESDC wiki currently states:
The wiki makes it clear that the following key conditions apply to Owner / Operator LMIAs:
- ESDC must be satisfied that the foreign national is or will be a principal owner or co-owner of the business in Canada.
- The company must prove the foreign natinoal’s shareholdings.
- When assessing labour market factors, the focus is on job creation/retention and/or skills transfer. For co-owners, the focus is on job creation / retention and/or skills transfer.
- For High-Wage Owner-operator applications, Transition Plans apply.
- For Low-Wage, the caps apply.
- Confirmations can be for one year or less.
The wiki goes on to address whether start-up companies can do owner-operator LMIAs, including where the company does not exist.
While the amount of redactions are frustrating, regardless of what the ESDC website and the Temporary Foreign Worker Program Manual / wiki states, the reality is that this is a very rarely used exemption.Read more ›
On December 27, 2013, Citizenship and Immigration Canada (“CIC“) and the Ministry of Economic and Social Development (“Service Canada“) released Ministerial Instructions regarding the revocation of work permits and Labour Market Opinions (“LMOs“), now called Labour Market Impact Assessments (“LMIAs“). The Ministerial Instructions will allow the Government of Canada to rapidly respond to economic developments by immediately reducing the intake of foreign workers, will increase program integrity, and create uncertainty for Canadian businesses.
These are the first Ministerial Instructions to be issued by Service Canada since the Government of Canada amended s. 30 of the Immigration and Refugee Protection Act (“IRPA“) in the first 2013 Budget Implementation Act. Section 30 of IRPA now reads:
Work and study in Canada
30. (1) A foreign national may not work or study in Canada unless authorized to do so under this Act.
(1.1) An officer may, on application, authorize a foreign national to work or study in Canada if the foreign national meets the conditions set out in the regulations.
(1.2) Despite subsection (1.1), the officer shall refuse to authorize the foreign national to work in Canada if, in the officer’s opinion, public policy considerations that are specified in the instructions given by the Minister justify such a refusal.
Concurrence of second officer
(1.3) In applying subsection (1.2), any refusal to give authorization to work in Canada requires the concurrence of a second officer.
(1.4) The instructions referred to in subsection (1.2) shall prescribe public policy considerations that aim to protect foreign nationals who are at risk of being subjected to humiliating or degrading treatment, including sexual exploitation.
Revocation of work permit
(1.41) An officer may revoke a work permit if,Read more ›
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,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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