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.

 » Read more about: Borderlines Podcast #25 – Protecting Foreign Workers and Employer Compliance Inspections, with Meera Thakrar  »

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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.

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

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?

47:25 – How long do LMIAs take to process?

 » Read more about: Borderlines Podcast #24 – The Temporary Foreign Worker Program, with Kyle Hyndman and Meera Thakrar  »

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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.

 » Read more about: Work Permits for Employers in the Sex Trade  »

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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

 

 » Read more about: Digital Signatures in the Temporary Foreign Worker Program  »

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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, 2018

2016 Wage ($/hour)
Wages as of

May 3,

 » Read more about: LMIA Cap on Low Wage Employees  »

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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,

 » Read more about: Service Canada Officers Fettering Discretion  »

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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.

 » Read more about: Procedural Fairness in LMIA Applications  »

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Labour Market Impact Assessment (“LMIA“) applications typically take 1-4 months to process. However, the Department of Employment and Social Development Canada (“ESDC“) processes LMIAs for in-demand occupations (skilled trades), highly paid occupations (top 10%) or short-duration (120 days or less) entries within a 10 business day service standard.

High-Demand

To be considered a High-Demand LMIA, the position must be for a skilled trade on the list of eligible occupations below, and the wage being offered for the position must be at, or above, the provincial / territorial median wage where the job is located.

Tables about unemployment, Median wages, 10-day speed of service.

NOC
2006
NOC
2011
Occupation Title

7212
7202
Contractors and supervisors, electrical trades and telecommunications occupations

7215
7204
Contractors and supervisors, carpentry trades

7219
7205
Contractors and supervisors, other construction trades, installers, repairers and servicers

7271
7271
Carpenters

7216
7301
Contractors and supervisors, mechanic trades

7217
7302
Contractors and supervisors, heavy equipment operator crews

8211
8211
Supervisors, logging and forestry

8221
8221
Supervisors, mining and quarrying

8222
8222
Contractors and supervisors, oil and gas drilling services

8241
8241
Logging machinery operators

8252 / 8253
8252
Agricultural service contractors, farm supervisors and specialized livestock workers

9211
9211
Supervisors, mineral and metal processing

9212
9212
Supervisors, petroleum, gas and chemical processing and utilities

9214
9214
Supervisors, plastic and rubber products manufacturing

9231
9231
Central control and process operators, mineral and metal processing

7351 / 7352
9241
Power engineers and power systems operators

9424
9243
Water and waste treatment plant operators

7231
7231
Machinists and machining and tooling inspectors

7261
7233
Sheet metal workers

7263
7235
Structural metal and plate work fabricators and fitters

7264
7236
Ironworkers

7265
7237
Welders and related machine operators

7241
7241
Electricians (except industrial and power system)

7242
7242
Industrial electricians

7243
7243
Power system electricians

7244
7244
Electrical power line and cable workers

7245
7245
Telecommunications line and cable workers

7246
7246
Telecommunications installation and repair workers

7251
7251
Plumbers

7252
7252
Steamfitters,  » Read more about: Priority Processing in LMIA Applications  »

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On February 3, 2016, Immigration, Refugees and Citizenship Canada (“IRCC”, previously “CIC”) introduced new Labour Market Impact Assessment (“LMIA“) exemptions, and expanded the Business Visitors category for certain foreign nationals so that they may work in Canada without a work permit.

The specific changes are:

  • the introduction of a LMIA exemption for prospective foreign workers whose work is essential to a television or film production and would create and maintain significant economic benefits and opportunities to Canadians and permanent residents;

 

  • the introduction of a LMIA exemption to prospective foreign workers working in dance, opera, orchestra and live theatre whose work contributes to competitive advantages and reciprocal benefits for all Canadians, including Canadian performing artists and performing arts organizations; and

 

  • that foreign nationals who are employed as film producers, essential personnel for commercial (i.e,, advertising) shoots, and film and recording studio users may now be considered as Business Visitors.

The LMIA exemptions described above take affect on February 17, 2016.  The expansion to the Business Visitor category is effective immediately.

Significant Benefit Guidelines

As noted above, starting on February 17, 2016, an LMIA exemption will exist for prospective foreign workers whose work is essential to a television or film production and would create and maintain significant economic benefits and opportunities to Canadians and permanent residents.

The IRCC website notes that such positions are typically unionized and pay above the provincial median wage for all occupations.

Applicants are advised to provide both a letter of support from the production as well as a letter from the relevant union or guild.

Work permits will be valid for the duration of the intended employment,

 » Read more about: LMIA Exemption for the Performing Arts Sector  »

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