Employers wishing to apply for Labour Market Impact Assessments are required to conduct recruitment efforts to hire Canadian citizens and permanent residents. The Department of Economic and Social Development (“ESDC” or “Service Canada“) is very stringent in its recruitment requirements, many of which are not publicly available. In this blog post I seek to provide a comprehensive overview of Service Canada’s recruitment requirements, including providing a summary of the publicly available information on the Service Canada website, as well as summarizing and reproducing internal ESDC directives.
I would like to thank Jacobus Kriek, an immigration consultant with Matrixvisa Inc., for providing me copies of the internal Service Canada directives and e-mails that he has obtained.
Please note that what I have reproduced below should not be viewed as legal advice by ESDC or Service Canada. The reproduction of the material below has not occurred with the affiliation of the Government of Canada, nor with the endorsement of the Government of Canada. As well, given the nature of relying on internal documents, some of the information may be out of date.
The Publicly Available Information
For Higher-Skilled Occupations, the Service Canada website states that recruitment requirements will be met if mandatory information is placed in public advertisements that provide a broad exposure of the vacancy to Canadian citizens and permanent residents in Canada who would be potential candidates for the position.
As per the ESDC website, to meet the minimum advertising requirements, employers must advertise:
- on the Government of Canada’s Job Bank. If employers choose to use an alternative method, they must submit a written rationale and explanation of the alternative method.
- The advertisement must be posted for a minimum of 4 weeks starting from the first day the ad appears and is accessible to the general public.
- using methods that are consistent with the occupation (targets an audience that has the appropriate education, professional experience or skill level required for the occupation). One of the methods used must be national in scope, and easily accessed by residents of any province or territory, as people in high-wage positions are often mobile and willing to re-locate for work.
Acceptable methods of recruitment for a job advertisement include:
- general employment websites
- online classified websites
- specialized websites which are dedicated to specific occupational profiles (for example, accounting, marketing, biotechnology, education, engineering)
- local, regional and national newspapers or newsletters
- local stores, places of worship, and community resource centres
- local, regional and provincial or territorial employment centres
- magazines and journals (for example, national journals or magazines,
- professional associations magazines, specialized journals)
- participation at job fairs
- partnering with training institutions or offering internships
- professional recruitment agencies
- consultations with unions for available labour
- advertising through professional associations
- recruitment within the company (for example, considering internal candidates for the position). A Human Resources Plan may outline the training opportunities for existing employees, and include a list of competencies for employees, workshops or programs for professional development and career management, specific programs to target specific employees for advancement
If the 2 additional methods of recruitment are online, they must each have unique value and reach different audiences. In cases where you advertise on multiple websites of the same type, the combined advertisements will only be considered as one additional method of recruitment.
Employers must provide proof of advertisement and the results of their efforts to recruit Canadian citizens and permanent residents (e.g. copy of advertisement and information to support where, when and for how long the position was advertised)
Each advertisement must include:
- Company operating name
- Business address
- Title of position
- Job duties (for each position, if advertising more than one vacancy)
- Terms of employment (e.g. project based, permanent position)
- a wage range can be used for the purposes of complying with the advertisement requirements; however, the minimum wage in the range must be the prevailing wage;
- (refer to Wages, Working Conditions and Occupations tab to determine the established rate for the specific occupation and geographic area)
- Benefits package being offered (if applicable)
- Location of work (local area, city or town)
- Contact information: telephone number, cell phone number, email address, fax number, or mailing address; andSkills requirements:Education
- Work experience
For Lower-Skilled Positions, employers must also target underepresented groups (aboriginal peoples, youth, older workers, persons with disabilities, and recent immigrants). The ESDC website states:
- try to recruit workers from local or provincial/territorial employment centres, service centres for Aboriginal youth, new immigrants and people with disabilities;
- offer bursaries to attract students or youth, pursue online recruitment strategies, or undertake ongoing advertising and interviews in order to maintain a pre-screened applicant pool.
The Internal Directives
While the Service Canada website provides broad requirements, it does not contemplate specific scenarios or the complexities of modern day recruiting. As such, ESDC Program Managers and Team Leaders began seeking clarification from National Headquarters (“NHQ“) regarding these issues. Amazingly, and arguably unacceptably, Service Canada has never published the answers to these questions online, leaving most employers and representatives in the dark. Also incredibly, ESDC officers refuse applications based on NHQ’s answers, the content of which is not publicly available.
The FAQ below is based on numerous documents obtained through multiple Access to Information Act requests. I have provided these documents, which contain internal directives and e-mails, at the end of the FAQ.
Can the employer submit a LMIA application during the four-week recruitment process?
No. The employer must advertise on the national Job Bank or its provincial equivalent for a minimum of four weeks immediately prior to submitting a LMIA application.
Can an ESDC Officer refuse a LMIA based on an employer not continuing to advertise after the LMO is submitted?
Where there is evidence that an employer is not continuously advertising using at least one source, the employer should be considered as not having met the minimum recruitment requirements, and as a result the recruitment factor should be negative.
Previously the ESDC website that the 4 weeks of advertising must have occurred in the three months prior to the LMIA’s application submission. It no longer states this. Does the removal of the three-month stipulation mean that this is no longer a requirement?
No. Employers are required to provide proof of at least two additional methods of recruitment for a minimum duration of four continuous weeks within the three months prior to submitting a LMIA application. Although the three month stipulation is not on the website, NHQ would suggest that this is a reasonable timeframe to consider the recruitment activity as genuine effort by the employer to recruit Canadians and permanent residents.
The website will be updated in the future to reflect this.
Can employers choose two online methods to meet the “additional methods of recruitement” requirement?
Yes. However, they must not be substantially the same, nor should they target substantially the same audience. Different types of online recruitment could consist of commercial websites (e.g. Monster.ca or Workopolis), or social media websites (e.g. Facebook, Twitter, or LinkedIn), or online classifieds (e.g. Kijiji or Craigslist), or professional association websites or sector/occupation targeted websites.
It is up to the employer to demonstrate that the additional methods of recruitment used are appropriate and target an audience commensurate with the educational attainment, professional experience and/or skll level of the requested position, including methods that cannot be done for a minimum duration of four continuous weeks (e.g. job fair).
As noted in this internal ESDC memo, ESDC has had some difficulty determining what method of electronic recruitment are acceptable.Kijij-Craigslist
Will NHQ will be providing a list of acceptable websites?
NHQ will not be providing a list of “acceptable” websites.
It is up to the employer to demonstrate to ESDC that the methods of recruitment used are appropriate and target an audience commensurate with the educational attainment, professional experience, and/or the skill level for the requested position.
For now, Craigslist and Kijiji are acceptable, however, officers should advise employers that they should not be using two websites that are substantially the same unless the employer can demonstrate that they can reach different audiences.
Are advertisements that has been generated as a “spin off” of another ad acceptable? For example, when an employer places an ad on the Job Bank Indeed.ca automatically grabs the Job Bank information and inserts it as an advertisement on its own website.
A “spin-off” advertisement from a different website would not constitute a genuine secondary source ad on the part of the employer. If an employer chooses two online methods to meet the two “additional methods of recruitment” requirement, they must themselves be responsible for “posting” the ad.
What does it mean that an advertisement must be “national in scope”
To be considered national in scope recruitment should target and be accessible to the appropriate audience in all regions of Canada.
Can a wage range be used in the advertisements?
Yes. However, the assessment of wage rates will be based on using the prevailing wage. Employers must advertise with the prevailing wage as the minimum wage.
[UPDATE – APRIL 1, 2015]
This now appears on the ESDC website.
Does the employer have to place all mandatory information in the advertisements, or is a link to the information acceptable?
The employer must post all mandatory information directly in the advertisement. A link to the information is not accessible.
What if the employer is adamant about not including a particular piece of information in the advertisements?
There may be circumstances where the employer or head-hunter may not wish to disclose some information (e.g. salary, company name) for high profile occupations (e.g. senior executive) for competitive reasons, or the potential influence on the stock market, etc. It is up to the employer to demonstrate that the advertised position should be exempt from including any of the listed mandatory job advertisement information.
Does the Business Address and Location of Work requirement always require a street address, town/city, and postal code?
Employers will be required to include the full address of the location of work (number, street name and city). ESDC officers should remain flexible in assessing this aspect of the recruitment and advertising requirements.
Can advertisements have a language requirement as a job requirement?
English and French are the only languages that can now be identified as a job requirement.
Is there an expectation that employers provide access to part-time shifts where part-time is generally not the norm for the industry to accommodate Canadians and permanent residents with barriers to employment?
There is no specific expectation that employers provide access to part-time shifts where part-time work is generally not the norm for the industry. However, offering options for part-time work as part of an initiative to attract individuals from under-represented groups would represent a significant effort to accommodate under-represented groups in the labour market, and an employer that does so could be considered as meeting the requirements of the new Advertising Policy.
Previously, the Regions were able to exercise discretion in waiving advertising requirements beyond the established Advertising Variations. Is this still the case?
During the assessment of an LMO, consideration could be given to waive the recruitment requirements are present: (a) a high salary (e.g. $200,000/year), (2) very high skilled (e.g. NOC 00), (3) specialized nature of the position (e.g. international knowledge); and (4) recruitment efforts will not likely result in finding the expertise being sought.
For example, a film producer making $207,000.00 per year in Vancouver would likely qualify for a recruitment exemption.
In other cases, or if uncertain, regions should contact NHQ on a case by case basis.
Can websites such as Kijiji be considered targeting underrepresented groups?
The requirement is that the employer makes a specific effort to target underrepresented groups, e.g. post a job bulletin at aboriginal community centres, job fairs at university campuses, etc. Flexibility using other sources could be considered when it pertains to a very small community that has no resource centre for underrepresented groups. In these cases, using accessible websites such as Kijiji, with a note that underrepresented groups are encouraged to apply, would be acceptable.
Can Headhunters be a source of recruiting?
The headhunter can be considered as one of the additional methods of recruitment. The employer must demonstrate that the headhunter meets requirements by providing proof of its efforts. As well, the advertisements must state the employer’s name and for job advertisements where a CRA business number is required by the employer’s business number.
ATI Result 1Policy on Advertising dated 2 June 2014
ATI Result 2
Federal Court Decisions
In September 2015, the Federal Court ruled that an officer fettered her discretion by overly relying on ESDC’s advertisement requirements. Justice O’Reilly wrote:
Guidelines can serve as a useful benchmark when interpreting regulatory requirements, but they cannot be treated as binding (Bajwa v Canada (Minister of Citizenship and Immigration), 2012 FC 864 (CanLII) at para 44; Ishaq v Canada (Minister of Citizenship and Immigration), 2015 FC 156 (CanLII) at para 51; Frankie’s Burgers Lougheed Inc v Canada (Employment and Social Development), 2015 FC 27 (CanLII) at para 92).
In my view, the record shows that the sole reason why the officer refused the Church’s assessment was because of the absence of a business address in the advertisements. Her notes to file state simply that the assessment was refused because the Church had not met the minimum advertising requirement of listing a business address. The officer did not determine whether the Church had actually made reasonable efforts to hire or train a Canadian in accordance with the regulatory standard but rather rejected the assessment for the solitary reason that the advertisements lacked a business address. The officer appears to have treated the guidelines as mandatory obligations.
While the officer was entitled to consider the absence of a business address as a factor in the exercise of her discretion, that was not a sufficient basis in the circumstances for rejecting the Church’s assessment. The officer’s approach amounted to a fettering of her discretion.
In February, 2016, the Federal Court ruled that recruitment itself does not always demonstrate a labour shortage. The Federal Court stated that:
The Respondent submits it is not quite as simple saying that ‘no one who applied possessed the skills’. Rather, the Respondent points out that the Officer took issue with the advertising of the position and the wages offered, ultimately finding both were insufficient to attract Canadian workers. The Respondent says it is not a labour shortage issue, it is failing to seek out appropriately qualified candidates that is the issue.
Currently, the Applicant is doing the necessary welding work on his jobs. I note that other than advertising the position (discussed below) there is no evidence the Applicant offered to train any of his existing employees, thirteen of whom are carpenters, to give them what he refers to as the minimal, basic welding skills required. There is also no evidence that the Applicant made general inquiries in the industry or even of the previous subcontractor as to whether there were Canadians available to fill the position. The Applicant has relied solely on the lack of response to the job advertisements to show there is a labour shortage.
The Court also affirmed that inconsistencies in job advertisements can lead to a Labour Market Impact Assessment refusal, stating that:
The Respondent states the Officer noted inconsistencies between the advertised skill requirements and the actual requirements for the position. In two of the Applicant’s ads a degree in welding was listed as a requirement. In another it was not so listed. In response to questions posed by the Officer regarding the required welding skills, the Applicant at various times said “training is required but not certification” and “basic competency in welding is required so formal training ensures that is possessed”. However, the Applicant also said “to finish the railings a minimal but necessary amount of welding is needed”.
While there was discussion at the hearing as to the difference between requiring a degree and having technical training, in my opinion the Officer reasonably found that by calling for a degree in welding in some of the ads but not in others, there was a real risk that a Canadian worker who only saw the ad calling for a degree in welding would not apply with the result that a foreign worker might be hired despite the existence of qualified Canadian candidates. Given the discrepancy in the advertisements, the Applicant has failed to satisfactorily provide evidence that the lack of response by qualified workers to the position shows there is a labour shortage.
Finally, the Court found that it was reasonable for an officer to refuse a LMIA based on recruitment chosen, and recommend other avenues:
I do not wish to leave this area without commenting upon the umbrage taken by the Applicant to various suggestions made by the Officer as to other avenues of recruitment that the employer might consider exploring. This included considering the Canada-Ontario job fund program to help his existing employees acquire the additional skills, offering on-the-job training to existing employees or new hires, contacting a union to look for qualified candidates since the union deals with high-rise construction, and raising the wage offering. The Applicant once again says he followed the recruitment efforts delineated by the guidelines and that these suggestions seem to be pulled “out of thin air” as “they are certainly not found in law or in the guidelines as to where else the employer could recruit”, concluding with “this illustrates the nature of the process as a moving target.” (original emphasis)
I would draw the applicant’s attention to page 169 of the application record under the heading “Recruitment, Retention and Training Activities” where it specifically states “Employers are encouraged to use innovative strategies and activities in addition to activities such as” (my emphasis). It then lists 13 examples of ways to actively try to hire Canadians. The first example is “increase wages offered”, the eighth example is “partner with unions/industry associations to identify potential candidates”, and the last bullet is “on-the-job training”. Conducting modified or ongoing advertising or offering an apprenticeship are also listed as suggestions. In other words, contrary to the repeated assertions by the Applicant that he complied with the guidelines and therefore is entitled to a positive LMIA, it appears he simply may not have read the guidelines carefully enough.
This case dealt with the issue of recruitment that contained excessive requirements for the position. Brocor applied for a LMIA to hire a TFW to work as a heavy equipment operator for its operations in Dawson Creek, British Columbia. Brocor’s requirements included hiring an individual with 3-5 years of experience.
In determining that it was reasonable for ESDC to determine that this requirement was excessive given that the NOC website stated that heavy equipment operators usually receive on the job training, Madam Justice MacDonald wrote:
On judicial review it is not the role of this Court to determine whether Brocor’s particular work requirements are reasonable, but rather to determine whether the Officer’s decision is reasonable. In the circumstances, it was reasonable for the Officer in considering the NOC requirements to determine that the experience insisted upon by Brocor was comparatively excessive.
The decision of Chief Justice Crampton in Frankie’s Burgers is applicable to these circumstances. While I acknowledge that the Applicant here is in a different industry and the facts are different, the overriding principals still apply. In particular, while an employer must be given some latitude in its hiring practices even within the TFW program, this has its limits and cannot be extended to the point where it is inconsistent with the scheme set forth in the Regulations (at para 36). The Chief Justice goes on to further state at paragraph 40:
Indeed, it is readily apparent from subsection 203(3) of the Regulations that the reasonableness of the officer’s decisions should be assessed by reference to the ultimate test of whether “the employment of the foreign national is unlikely to have a positive or neutral effect on the labour market in Canada as a result of the application.” The seven specific criteria set forth in paragraphs 203(3)(a) – (g) reinforce this orientation, and do not in any way allude to or contemplate the types of considerations or latitude emphasized by the Applicants.
Moreover, the decision in Fredy’s Welding Inc v Canada (Employment and Social Development), 2017 FC 7 [Fredy’s Welding] addresses many of the arguments made by Brocor. In Fredy’s Welding, there were 97 candidates who had applied for the position, but none had the required diesel generator maintenance and repair skills that the applicant was seeking and which the officer noted was in excess of the qualifications under the NOC. Justice Strickland decided that this was a conclusion that was reasonably open to the officer to make and fell within a range of possible, acceptable outcomes defensible on the facts and as legislated under the Regulations. The same rationale should similarly apply to this case.