LMIA’s – The Job Creation Factor

26th Feb 2020 Comments Off on LMIA’s – The Job Creation Factor

Regulation 203(3)(a) of the Immigration and Refugee Protection Regulations (the “IRPR“) states:

(3) An assessment provided by the Department of Employment and Social Development with respect to the matters referred to in paragraph (1)(b) shall, unless 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 of subsection (1.01), be based on the following factors:

(a) whether the employment of the foreign national will or is likely to result in direct job creation or job retention for Canadian citizens or permanent residents;

The Temporary Foreign Worker Manual states that the following principles should guide the assessment of whether the employment of a foreign national will or is likely to result in direct job creation or job retention for Canadian citizens or permanent residents.

First, an officer conducting an analyis of a Labour Market Impact Assessment (an “LMIA”) application should reflect a reasonable and balanced approach ensuring that officers od not base their decision solely on the outcome of one of the seven labour market factors.  An employer can receive a positive LMIA even if this factor is assessed to be negative and an employer can receive a negative LMIA even if this factor is assessed to be positive.

Second, for Owner Operator LMIAs, assessing if the entry of a foreign national will result in the creation or retention of employment opportunities for Canadians and permanent residents holds more weight in determining the impact on the labour market.

Third, the following questions will help guide the assessment of this factor:

  1. How will the staffing of this position lead to direct job creation or retention?
  2. How many jobs will be created / retained?

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ESDC – Determining Who the Employer Is

22nd Feb 2020 Comments Off on ESDC – Determining Who the Employer Is

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.

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Borderlines Podcast #25 – Protecting Foreign Workers and Employer Compliance Inspections, with Meera Thakrar

14th Nov 2018 Comments Off on Borderlines Podcast #25 – Protecting Foreign Workers and Employer Compliance Inspections, with Meera Thakrar

The Government of Canada, as well as several provincial governments, have introduced several measures to protect temporary foreign workers and maintain the integrity of Canada’s foreign worker programs.

Meera Thakrar is a Canadian immigration lawyer whose practices focus on helping companies recruit and retain foreign workers.

Meera joins Peter Edelmann, Deanna Okun-Nachoff and Steven Meurrens to discuss various measures that different levels of government have introduced to protect foreign workers, challenges do governments face in this task and how employer compliance inspections work.

2:15 – Deanna discusses vulnerabilities that caregivers face. These include nonpayment of wages, excessive hours and more. What aggravates the situation is that because caregivers typically seek permanent residency and reporting abuse could potentially jeapordize this.

4:30 – What are some of the motivations of caregiver employers who exploit their foreign workers? What are some possible solutions to reduce the vulnerability of caregivers?

10:20 – Do what extent does the caregiver program deflate Canadian wages? To what extent does the fact that foreign workers provide cheap labour, making goods and services affordable, create a disincentive to stricter enforcement of foreign worker rights.

12:20 – An overview of how the government’s enforcement of compliance in the Temporary Foreign Worker Program and the International Mobility Program works.

14:55 – Canada and British Columbia have an agreement whereby foreign workers who have been exploited can get a six month open work permit. How is this working out? What about the new British Columbia law to protect vulnerable foreign workers? How likely is that to succeed?

25:30 – Peter summarizes a criminal case that he had recently in which a trucking company was charged criminally for paying foreign workers by the mile instead of by the hour.

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Borderlines Podcast #24 – The Temporary Foreign Worker Program, with Kyle Hyndman and Meera Thakrar

30th Oct 2018 Comments Off on Borderlines Podcast #24 – The Temporary Foreign Worker Program, with Kyle Hyndman and Meera Thakrar

Last updated on October 24th, 2020

The Temporary Foreign Worker Program, also known as the Labour Market Impact Assessment, is the main program through which Canadian companies hire temporary foreign workers. We discuss numerous aspects of obtaining Labour Market Impact Assessments, including prevailing wage, recruitment, transition plans, processing times, job match, the Global Talent Stream and the Owner – Operator LMIA.

Kyle Hyndman and Meera Thakrar are both Canadian immigration lawyers whose practices focus on helping companies recruit and retain foreign workers.

3:00 – What are the first questions or things that Kyle and Meera tell Canadian employers that want to apply for Labour Market Impact Assessments?

3:57 – What is the difference between the Temporary Foreign Worker Program and the International Mobility Program?

8:00 – Why are companies generally reluctant to obtain Labour Market Impact Assessments?

8:20 – What are the recruitment requirements for a Labour Market Impact Assessment?

12:50 – What is Job Match?

19:00 – What do companies have to show and demonstrate through the recruitment process?

23:20 – What is the wage requirement for a LMIA? What is the prevailing wage?

25:00 – Do employers hire foreign workers to undercut Canadian wages?

26:30 – Can employers of foreign workers offer raises or bonuses?

30:00 – What are Transition Plans in High Wage LMIA applications?

36:00 – How does the Low Wage cap work?

37:00 – How does an employer show they can afford to pay the foreign worker?

39:00 – Can recruitment have a language requirement?

41:00 – What is an Owner Operator Labour Market Impact Assessment?

42:15 – What is the Global Talent Stream?

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Work Permits for Employers in the Sex Trade

4th Oct 2018 Comments Off on Work Permits for Employers in the Sex Trade

Since July 4, 2012, Minister Instructions have been in place that prohibit temporary foreign workers in Canada from working in a business that is in a sector where there are reasonable grounds to suspect a risk of sexual exploitation of some workers.  The Ministerial Instructions define the business sectors where there are reasonable grounds to suspect a risk of sexual exploitation as being strip clubs, escort services and massage parlours.

When receiving applications for work permits made by foreign nationals seeking to work in a business that is in a sector where there are reasonable grounds to suspect a risk of sexual exploitation, officers will not process the applications.

As well, all work permits advise temporary foreign workers of the restriction, as they typically state “not valid for employment in businesses related to the sex trade such as strip clubs, massage parlours or escort services.

Employment and Social Development Canada’s Temporary Foreign Worker Program WIKI provides the following additional guidance.

Sex Industry: An employer that engages in striptease, erotic dance, escort services or erotic massage on a regular basis (eg. daily, weekly or monthly).

  • Striptease and erotic dance: activities involving nudity. A business that engages in activities without nudity that may be interpreted as sexually suggestive (e.g. modelling) is not considered to be an employer offering striptease or erotic dance.
  • Escort Services: The provision of services that are sexual in nature or for romantic companionship.
  • Erotic Massage: The provision of massage services that are sexual in nature. This does not include massage activities undertaken for therapeutic reasons (e.g. performed by Registered Massage Therapists).

Examples: 

  • An LMIA application received from an employer that hosts weekly strip dance shows should not be processed.

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The Global Skills Strategy – Faster Processing and More Compliance for Certain Work Permits

30th Jun 2017 Comments Off on The Global Skills Strategy – Faster Processing and More Compliance for Certain Work Permits

The following is an article that I wrote for The Canadian Immigrant Magazine.

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Digital Signatures in the Temporary Foreign Worker Program

17th Jun 2017 Comments Off on Digital Signatures in the Temporary Foreign Worker Program

One of the more frustrating aspects of the Temporary Foreign Worker Program from an application procedure angle can be determining whether ESDC accepts digital signatures, and whether an individual other than the 3rd party representative can sign for the person named as the third party representatives.

Helpfully, the Temporary Foreign Worker Program Wiki appears to answer that digital signatures are accepted in the TFWP, and that if there is no doubt that an individual works in the same law firm as an authorized third party then it is reasonable to accept that this individual can sign as an authorized representative.

TFWDigitalSignature

 

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LMIA Cap on Low Wage Employees

21st Mar 2017 Comments Off on LMIA Cap on Low Wage Employees

Last updated on September 20th, 2018

Canada’s Temporary Foreign Worker Program (the “TFWP“) allows employers to bring foreign workers to Canada to temporarily fill jobs for which qualified Canadians are not available. After the program became increasingly controversial in 2012-13, the Department of Employment and Social Development Canada (“ESDC“) on June 20, 2014 imposed a cap limiting the proportion of low-wage foreign workers that businesses can employ.

How the Cap Works

Employers with a company-wide business size of 10 or more employees are subject to the cap.  The cap percentage is determined for each individual worksite location and is based on paid positions and total hours worked at that worksite.

Employers that are new to the TFWP or returning employers who did not have any foreign workers on staff on June 20, 2014 are capped at 10% low-wage foreign workers for each work location.

The cap, implemented on June 20, 2014, was phased in to provide employers time to transition to a Canadian workforce which means that they are limited to a:

  • 20 percent cap on the number of foreign workers in low-wage positions, or the employer’s established estimated cap (whichever is lower), if the employer hired a TFW in a low-wage position prior to June 20, 2014; or
  • 10 percent cap on the number of foreign workers in low-wage positions if the employers did not employ a TFW in a low-wage position prior to June 20, 2014.

Effectively, companies are limited to a 10% cap on the proportion of low-wage foreign workers that they can have.  The low-wage is based on a province’s median wage, which as of writing is as follows:

Province/Territory
Wages prior to

May 3,

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Service Canada Officers Fettering Discretion

5th Mar 2017 Comments Off on Service Canada Officers Fettering Discretion

As I have previously written in this blog, there is an increasing number of judicial review applications being filed against Labour Market Impact Assessment (“LMIA”) refusals.  There is also accordingly a growing jurisprudence on what constitutes the “fettering of discretion” in a LMIA assessment.  Those who have experience submitting LMIA applications will know that this is not surprising.

Paturel International Company v. Canada (Employment and Social Development), 2016 FC 541 (“Paturel“)

In Paturel, an officer with the Department of Employment and Social Development (“ESDC“) refused an LMIA application simply because the employer’s job offer did not have a wage that met or exceeded the median wage on ESDC’s Working in Canada website.  The Federal Court stated that:

While the officer has broad discretion to rely on the data that he considered to be most representative of the prevailing wage in the region, I find that the officer’s sole reliance on EI data amounted to a fettering of his discretion.

Justice O’Reilly went on to note that:

  • Canadian immigration legislation does not stipulate that a failure to meet the prevailing wage, alone, would be sufficient to defeat an employer’s application; and
  • Because the employer had provided evidence that the Working in Canada website was inaccurate, it was unreasonable for the officer to nonetheless rely on it and to ignore the additional information.

Seven Valleys Transportation Inc. v. Canada (Employment and Social Development), 2017 FC 195 (“Seven Valleys“)

In Seven Valleysan ESDC officer refused an LMIA application solely because the employer advertised with a job requirement that an internal ESDC Wiki deemed excessive,

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Procedural Fairness in LMIA Applications

6th Dec 2016 Comments Off on Procedural Fairness in LMIA Applications

Procedural fairness in Labour Market Impact Assessment (“LMIA“) applications is relatively low.  In Frankie’s Burgers, the first reported Federal Court decision on the matter, the Court stated that (citations removed):

The requirements of procedural fairness will vary according to the specific context of each case. In the context of applications by employers for [Labour Market Impact Assessments], a consideration of the relevant factors that should be assessed in determining those requirements suggests that those requirements are relatively low. This is because, (i) the structure of the [LMIA] assessment process is far from judicial in nature, (ii) unsuccessful applicants can simply submit another application, and (iii) refusals of [LMIA] requests do not have a substantial adverse impact on employers, in the sense of carrying “grave,” “permanent,” or “profound” consequences.

However, as noted in the Kuzol decision, while the duty of procedural fairness in a LMIA application may be at the low end of the spectrum, it is not non-existent.

Extrinsic Evidence

If an officer with the Department of Economic and Social Development (“ESDC“) relies on extrinsic evidence in reaching a decision, then there is a duty to disclose that evidence to the employer prior to the decision being made.

Extrinsic evidence does not include information that is publicly available on websites that are generally accessible to the public.

It does, however, include information derived from third parties that is not publicly available.  For example, in the LMIA context, if an ESDC officer calls a third party to confirm whether there is a labour shortage in an area, and the information that the third party contradicts what the employer submitted to ESDC, then the officer must provide the employer with an opportunity to respond to the information that the third party provided.

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