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 ›
Last updated on January 26th, 2021
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 ›
Last updated on April 8th, 2021
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 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,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 ›
On July 31, 2013, the Ministry of Employment and Social Development Canada (“Service Canada“) introduced changes to the Labour Market Opinion (“LMO“) process which took affect immediately. Today’s changes, as well as previous, recent ones, greatly increase the burden for companies applying for LMOs. Today’s changes were comprehensive. We have provided a broad overview of the changes below, however, we encourage you to contact us, or check the website below, for further details.
LMO Application Fees
Effective July 31, 2013, employers applying for LMOs must pay a processing fee of $275.00 for each position requested. The total payment must reflect the number of Temporary Foreign Workers (“TFW“) positions requested on the LMO application (e.g. $275 x number of positions = total payment). For example, a company requesting a bulk LMO for 25 positions will be required to pay a processing fee of $6,875.00.
Employers who wish to increase the number of positions requested on a LMO application must submit a new LMO application for these positions, with the required documents and fees.
There will be no refund in the event of a negative LMO or if the application is withdrawn or cancelled. Reconsideration requests will also require the submitting of new application forms and fees.
New Advertising Requirements
The period that employers must advertise positions domestically before applying for LMOs is being increased from two weeks to four weeks. As well, advertisements must continue to run during Service Canada’s processing of the LMO application.
In addition to advertising on the national Job Bank website or the equivalent provincial/territorial website, employers must prove they have used at least two other recruitment methods that are consistent with the practices for the occupation. If hiring for a high-skilled position,Read more ›
In August 2011 Teresa Woo-Paw, the Alberta Parliamentary Assistant to the Minister of Employment and Immigration released a report titled Impact of the Temporary Foreign Worker (TFW) Program on the Labour Market in Alberta. The main thrust of the report was that Alberta’s workforce is projected to be 77,000 workers short between 2002 and 2012, with overall demand outpacing supply from 2015, and that Alberta should implement, and the Government of Canada should facilitate, Alberta implementing a program to attract labour through immigration to address the labour shortage. The report contained numerous recommendations, some of which were accepted by the Alberta government.
The Political Back and Forth Between Jason Kenney and the Government of Alberta
In response to the report, Thomas Lukaszuk, Alberta’s Minister of Employment and Immigration, recently urged the federal government to remove the annual caps on the number of provincial nominees.
The Brooks Bulletin recently reported on Jason Kenney’s, the federal Minister of Citizenship and Immigration, response. According to the Brooks Bulletin, he stated:
It would almost result in doubling national immigration levels to Canada when 80 per cent of Canadians are saying immigration levels are already high enough or are too high.
I think they are totally disconnected from reality on that.
To be honest with you there’s a tension between the need to keep this a Canada-first program and the need to facilitate filling positions in an efficient way. We can’t just open up the rules willy-nilly. There has to be some reasonable rules in the program that ensures Canadians are getting the first crack [at jobs].
Although Jason Kenney is probably correct in noting that removing the provincial nomination quotas would result in a dramatic increase in immigration levels,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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