IRCC Clarifies Non-Compliance in the International Mobility Program

It is imperative that employers hiring foreign workers in the International Mobility Program (“IMP“) understand the consequences of non-compliance. Immigration, Refugees and Citizenship Canada (“IRCC“) has finally published information on its website which summarizes how it will determine when non-compliance has occurred and what the consequences will be.

Since December 1, 2015, IRCC has had the legislative authority to apply administrative tools, including warning letters, administrative monetary penalties (“AMPs“) and bans on employers accessing the IMP to certain employers where an IRCC officer has determined that an employer has breached the terms and conditions of participating in the IMP. 

Breaches that Occurred Before December 1, 2015

It is important to note that the AMP and the bans described below only apply to employer breaches that occurred after December 1, 2015.  The penalty to an employer for unjustified breaches that occurred prior to December 1, 2015 is a two-year ban on that employer from being able to hire foreign workers under the IMP. However, while the consequences to an employer for being found non-compliant changed on December 1, 2015, the way in which IRCC assesses whether non-compliance has occurred remains substantially the same.  

The Administrative Monetary Penalty Regime

Under IRCC’s AMP regime, employer non-compliance is divided into three types of violations.  

Type A violations include where an employer:

• is unable to demonstrate that any information that it provided in respect of a foreign national’s work permit application was accurate during a period of six years beginning on the first day of the foreign national’s employment;
• did not retain document(s) that relates to employer compliance during a period of six years, beginning on the first day of the foreign national’s employment
• did not report at any time and place specified by IRCC to answer questions and provide documents during an IRCC inspection of the employer’s compliance with the IMP;
• did not produce required documents during an IRCC inspection; and
• did not attend an IRCC inspection, nor give all reasonable assistance to the IRCC officer conducting the inspection.

Type B violations include where an employer:

• did not comply with federal and provincial laws that regulate employment;
• did not comply with federal and provincial laws that regulate the recruiting of employees in the province in which the foreign national works; and
• did not provide the foreign national with employment in the same occupation and substantially the same, but not less favourable, wages and working conditions as outlined in the foreign national’s offer of employment.

Type C violations include where the employer:

• was not actively engaged in the business in which the offer of employment was made; and
• did not make reasonable efforts to provide a workplace that was free of abuse.

Once IRCC determines which type of violation an employer’s violation falls under, IRCC will assign points under the AMP regime based on the employer’s compliance history and the severity of the violation.

Points for the employer’s compliance history are calculated as follows:

Assessing the Severity of a Violation

Points for the severity of the violation are calculated as follows:

Severity of the Violation
Criteria	Points
The employer derived competitive or economic benefit from the violation.	0 – 6
The violation involved abuse of a foreign national.	0 – 10
The violation negatively impacted the Canadian labour market or the Canadian economy.	0 – 6
The employer did not make reasonable efforts to minimize or re-mediate the effects of the violation.	0 – 3
The employer did not make reasonable efforts to prevent recurrence of the violation.	0 – 3

In considering whether the employer derived competitive or economic benefit from the violation, IRCC considers the economic gain derived from non-compliance (total gain to the employer), the money that the employer saved from non-compliance with program requirements, and whether the employer’s practices (led to a competitive advantage over other employers who were following IMP rules.

Examples of economic gain include:

• significant underpayment or non-payment of foreign worker wages as well as wages for overtime for an extended period of time; and
• an employer refusing to pay required benefits (e.g., health benefits/transportation costs) as outlined on the offer of employment.

Examples of competitive benefit include evidence that an employer won a bid or contract by underpaying foreign workers.

In considering whether an employer’s violation involved abuse of a foreign national, IRCC will assign points where abuse actually occurs.  IRCC will assign lower points where once the abuse was discovered, the employer was responsive in obtaining assistance for the foreign worker (i.e., notifying police or health care professional), the employer provided training to staff to prevent reoccurrence; or the employer developed policies and procedures that address situations of abuse in the workplace (e.g., steps to be taken if an employee or supervisor is aware of experiencing abuse).

In considering whether the violation negatively impacted the economy, IRCC will consider whether the employer’s actions resulted in a foreign national completing work that did not warrant a Labour Market Impact Assessment (“LMIA“) exemption.  Higher points will be assigned where the employer did not take steps to rectify the situation once it determined that it should have obtained a LMIA. 

 

Calculating the AMP

IRCC adds the number of points based on the employer’s compliance history and the severity of the violation to determine the AMP.  In calculating the AMP, employers are divided into “large businesses” and “small businesses.”  

A “small business” is any business, including affiliated entities, that have fewer than 100 employees or less than $5,000,000 in annual general revenue.

For Type A violations, the size of the AMP is as follows:

Type A
Points	Individual or Small Business ($)	Large Business ($)
0 or 1	None	None
2	500	750
3	750	1000
4	1000	2000
5	4000	6,000
6	8,000	10,000
7	12,000	20,000
8	20,000	30,000
9 or 10	30,000	45,000
11 or 12	40,000	60,000
13 or 14	50,000	70,000
15 or more	100,000	100,000

For Type B violations, the size of the AMP is as follows:

Type B
Points	Individual or Small Business ($)	Large Business ($)
0 or 1	None	None
2	750	1,000
3	1,250	2,000
4	3,000	7,000
5	7,000	12,000
6	12,000	20,000
7	20,000	30,000
8	35,000	45,000
9 or 10	50,000	60,000
11 or 12	60,000	70,000
13 or 14	70,000	80,000
15 or more	100,000	100,000

For Type C violations, the size of the AMP is as follows:

Type C
Points	Individual or Small Business ($)	Large Business ($)
0 or 1	None	None
2	1,000	2,000
3	5,000	10,000
4	10,000	20,000
5	15,000	30,000
6	20,000	40,000
7	35,000	50,000
8	45,000	60,000
9 or 10	60,000	70,000
11 or 12	70,000	80,000
13 or 14	80,000	90,000
15 or more	100,000	100,000

In addition to fines under the AMP, the number of points that an employer receives determines the ban length as follows:

Total number of Points	Type A Violation	Type B Violation	Type C Violation
0 to 5	None	None	None
6	None	None	1 year
7	None	1 year	2 years
8	1 year	2 years	5 years
9 or 10	2 years	5 years	10 years
11 or 12	5 years	10 years	10 years
13 or 15	10 years	10 years	10 years
15 or more	Permanent	Permanent	Permanent

Where an employer fails to comply with multiple conditions, each unjustified failure to comply is treated as a separate violation.  As well, violations of a single condition that involve more than one foreign worker will be treated as separate violations for each foreign worker affected. For conditions that have separate elements, a failure to comply with each element that is not justified will be treated as a separate violations.

As the size of the AMP can soar dramatically depending on the number of foreign workers involved and the number of condition(s) breached, the maximum AMP that IRCC can impose is $1,000,000.00 for a breach.  As well, the total AMPs imposed on a single employer cannot exceed $1,000,000 in the one-year period preceding the date of the final determination.

Voluntary Disclosure

If an employer voluntarily discloses non-compliance, then IRCC, at an officer’s discretion, may reduce the number of points, depending on the circumstances.

Warning Letters 

When IRCC determines that total points of an employer’s non-compliance are fewer than two, IRCC will issue a warning letter to the employer.  Warning letters count as violations for the purpose of calculating points on future violations.

Best Practices

As of writing there is one employer listed on the IRCC website for having not complied with the IMP. The consequence to the employer was a $750.00 fine.  It is anticipated that there will be many employers subject to the AMP in the future. The regime is still new, and the rigidity with which IRCC assesses compliance within the IMP is still being developed.  In the meantime, it is imperative that employers completing their employer compliance portal job offers understand the terms and conditions that they are attesting to complying with.