Section 9.4 of Annex B of the Canada – British Columbia Immigration Agreement 2015 provides that “if Canada or B.C. determines that there is a real and substantial risk to a foreign worker as a result of an employer not complying with federal or provincial laws, Canada and B.C. will jointly undertake actions to mitigate such risk, including, where appropriate, issuing a new Labour Market Impact Assessment (“LMIA”) through the priority Labour Market Impact Assessment process, or issuing a new work permit without the need for an LMIA provided that the Foreign Worker meets all other requirements of the Immigration and Refugee Protection Regulations (the “IRPR”).
On May 4, 2018 the Government of Canada announced how it will apply the LMIA exemption to foreign workers who are at risk as a result of potential employer non-compliance in British Columbia. The policy will be in force until April 7, 2020. The measures are available to all foreign nationals in B.C. who hold an employer-specific work permit for an employer located in B.C. or who are authorized to work without a work permit.
Under the policy, visa officers may consider issuing a work permit if they have reason to suspect potential employer non-compliance with provincial laws or reason to suspect potential employer non-compliance with federal laws.
According to the IRCC website, examples of employer non-compliance with a provincial law may include but are not limited to the following:
- employer non-compliance with the Employment Standards Act by charging job placement and recruitment fees or by repeatedly not paying wages owed to the foreign worker; and
- employer violation of the Occupation Health and Safety Regulations whereby the employer is failing to provide a safe work environment, which creates undue hazards to the health and safety of the foreign worker or fails to correct unsafe working conditions.
According to the IRCC website, examples of employer non-compliance with a federal law may include but are not limited to the following:
- employer non-compliance with the obligation to “provide the foreign national with employment in the same occupation as that set out in the foreign national’s offer of employment and with wages and working conditions that are substantially the same as — but not less favourable than — those set out in that offer” ;
- employer non-compliance whereby the employer has failed to comply with the conditions of the Temporary Foreign Worker Program or the International Mobility Program, such as failing to provide a workplace that is free of abuse, resulting in real and substantial risk to the foreign worker; and
- trafficking in persons.
Abuse consists of any of the following:
- (a) physical abuse, including assault and forcible confinement
- (b) sexual abuse, including sexual contact without consent
- (c) psychological abuse, including threats and intimidation
- (d) financial abuse, including fraud and extortion
Work Permit Duration
Work permits may be issued by for any of the following purposes:
- to assist a foreign worker who must leave the original place of employment to obtain an extension of temporary resident status, facilitating the search for a new position;
- to facilitate the participation of the foreign worker in the inspection or prosecution of an alleged employer or employment agency for non-compliance in Canada or otherwise assist authorities; and
- for any other purpose the officer may judge relevant to facilitate the protection of the foreign worker who is at real and substantial risk as a result of potential employer non-compliance.
The duration of open work permits issued under this policy will be 6 months.
The duration of closed work permits issued under this policy will be the duration of the offer of employment, although presumably there will be a “reasonable” limit of 2-3 years.
The Role of Settlement Agencies
Only settlement service providers, as specified by the B.C. Government, can identify a foreign national who is at real and substantial risk of abuse by an employer in B.C. Individuals who report abuse directly to government agencies will be re-directed to these settlement agencies.
The following is a list of the settlement agencies that foreign nationals who meet the criteria above should contact.