ESDC – Determining Who the Employer Is

Meurrens LawLabour Market Impact Assessments, Work Permits

Canada’s Department of Employment and Social Development Canada (“ESDC“) administers the Temporary Foreign Worker Program (the “TFWP“).  This is the program through which employers can obtain Labour Market Impact Assessments (“LMIAs“).

The following is a partial reproduction of the TFWP Manual (an internal document) regarding who the employer is for the purpose of administering the TFWP.

Who is the Employer

ESDC policy states that an employer is an entity (e.g. person, business, corporation or organization) that makes an offer of employment to one or more foreign nationals who provide labour in return for compensation for a specified period of time.  The employer is generally the entity that hires, controls working condititions and remunerates the foreign national.

For the purpose of the Temporary Foreign Worker Program, charachteristics of the relationship, such as control and remuneration, including statutory benefits (e.g. CPP and EI) will be reviewed to determine when an employer – employee relationship exists. The total relationship will be examined and assessed, bearing in mind that no one factor is determinative and there is an extensive list of factors that may be examined.

In cases where two or more entities are determined to share employer responsibilities by the Department, a group of employers may make an offer of employment to a foreign national.  The roles and responsibilities of each party must be clear and defined at the time of application.

For the purpose of the Temporary Foreign Worker Program, in cases where a self-employed individual wishes to enter Canada to establish or purchase a business and be involved in its day-to-day operations, the business plan or contract to purchases shares in a business should be evaluated as the job offer.  Ownership of shares does not guarantee that a foreign national would qualify as an owner-operator.

Entities Not Considered the Employer

A Canadian company that is engaged in business with a foreign-based comany that employs a foreign national is not the employer and as such should not submit the LMIA application on behalf of a foreign company.

In situations where an employer is legally owned by a parent company, but the parent company does not have day-to-day control over business operations that the foreign worker would be involved in, the parent company would not be considered the employer.

Who is the Owner