[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 ›
Last updated on May 14th, 2020
The Department of Employment and Social Development’s (“ESDC“) Primary 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 Primary 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
In brief, Primary Agriculture is defined as work duties that must:
- be performed within the boundaries of a farm, nursery or greenhouse
- involve at least one activity, such as:
- operation of agricultural machinery,
- boarding, care, breeding, sanitation or other handling of animals, other than fish, for the purpose of obtaining raw animal products for market
- collection, handling and assessment of those raw products, or the planting, care, harvesting or preparation of crops, trees, sod or other plants for market
- be consistent with one of these National Occupational Classification codes: 0821, 0822, 8252, 8255, 8431, 8432, and 8611
The LMIA processing fee does not apply to occupations related to primary agriculture and positions under the National Occupational Classification (NOC) codes 0821, 0822, 8252, 8255, 8431, 8432 and 8611.
Employers must provide foreign workers with adequate, suitable and affordable housing as defined by the Canadian Mortgage and Housing Corporation. The housing can be either on-farm (for example bunkhouse) or off-site (for example commercial establishment). Employers must ensure the occupancy of each accommodation location does not exceed the maximum occupancy permitted.
The following are frequently asked questions about the program as reproduced from the TFWP Wiki.Read more ›
Last updated on October 12th, 2018
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 »
Last updated on September 19th, 2018
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 ›
Last updated on June 12th, 2018
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.
Read more ›
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.
Read more ›
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 ›
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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