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 … Read More
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 … Read More
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 … Read More
Priority Processing in LMIA Applications
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 … Read More
LMIA Exemption for the Performing Arts Sector
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 … Read More
Business Expertise Consultants and Fettering Discretion
In the increasingly growing area of Labour Market Impact Assessment judicial review the question of whether officers are fettering their discretion by overly relying on operational guidelines is arising. To me a more interesting question is whether officers being told that they cannot make decisions without first consulting Business Expertise Consultants is more interesting. Consider the situation below, as obtained through an Access to Information Act request. It is clear that in this case the officer wanted to approve the Transition Plan exemption request. However, the Business Expertise Consultant recommended that the officer refrain from doing so. In the fettering of discretion scenario, the following questions need to be asked: If a program officer went against the recommendation of a Team Leader and a Business Expertise Consultant, what would be the consequences? If program officers are administrative tribunals who are purportedly experts in the administration of their home statute, then why do they need to defer to Business Expertise Consultants and Team Leaders? How often do program officers ignore the recommendations of Team Leaders and Business Expertise Consultants? What other areas in an LMIA application do program officers have to rely on Team Leaders and Business Expertise Consultants for?
Administrative Monetary Penalty Regime Coming to Foreign Worker Program
On July 1, 2015, the Government of Canada published regulations in the Canada Gazette that introduce an Administrative Monetary Penalty (“AMP“) regime into the Temporary Foreign Worker Program (“TFWP“) and the International Mobility Program (“IMP“). Both Citizenship and Immigration Canada (“CIC“) and the Ministry of Employment and Social Development (“ESDC“) will administer the AMP. In addition, the regulations will replace the exiting two-year ban period for employer non-compliance with 1, 2, 5, 10 year, and permanent bans. The amendments will take effect on December 1, 2015. The Administrative Monetary Penalty Regime Under the new AMP regime, employer non-compliance will be divided into three types of violations. Type A violations will include where an employer: is unable to demonstrate that any information that it provided in respect of a 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 with cited conditions during a period of six years, beginning on the first day of the foreign national’s employment did not have sufficient resources to pay a live-in caregiver(s); could not demonstrate that any information that it provided for a Labour Market Impact Assessment (“LMIA“) application was … Read More
Several LMIA Changes Taking Effect April 30, 2015
The Ministry of Employment and Social Development (“ESDC”) has announced that there will be several changes to the Temporary Foreign Worker Program (“TFWP”) that will take effect on April 30, 2015. The changes are: Implementation of new High and Low-wage Streams Updating the Provincial / Territorial Median Hourly Wages Increasing Worker Protections Modifying the Method for Calculating the Cap on Low Wage Positions Implementing the Labour Market Impact Assessment (“LMIA”) system fully in Quebec Updating Regions of Refusal to Process
Federal Court Affirms New ESDC Internal Part-Time Recruitment Policy
In January 2015 the Federal Court released its decision in Frankie’s Burgers Lougheed Inc. v. The Minister of Employment and Social Development Canada, 2015 FC 27 (“Frankie’s Burgers“). Frankie’s Burgers is one of the first Federal Court decisions involving an employer seeking judicial review of a decision of the Ministry of Economic and Social Development Canada (“ESDC“) to not issue a positive Labour Market Impact Assessment (“LMIA“), which was then referred to as a Labour Market Opinion (“LMO“). Frankie’s Burgers should be read by all representatives and employers who submit LMIAs. In my opinion, the case shows that the Federal Court seems prepared to show much greater deference to ESDC in its administration of the Temporary Foreign Worker Program (the “TFWP“) than it does to both Citizenship and Immigration Canada and the Immigration and Refugee Board. Lawyers who were anticipating that the Federal Court would force ESDC to change some of its (often internal and secretive) policies should also take pause.
Service Canada Transition Plans
On June 23, 2014, we wrote about how on June 20, 2014, Citizenship and Immigration Canada (“CIC”) and the Ministry of Economic and Social Development Canada (“ESDC”) announced significant reforms to the Temporary Foreign Worker Program (“TFWP”). One of the changes was: Introduction of Transition Plans for High-Wage Positions Employers seeking to hire High-Wage TFWs will now be required to submit Transition Plans to demonstrate how they will increase efforts to hire Canadians, including through higher wages, investments in training and more active recruitment efforts from within Canada. An employer will have to provide a Transition Plan for each position that it is seeking a LMIA for. The requirement that employers provide a Transition Plan has taken effect immediately. Employers may be exempt from the Transition Plan requirement if they are hiring TFWs for positions which: require unique skills (ESDC has stated that two examples include nuclear physicist and senior executives such as Chief Executive Officer); have a limited duration of between: 1 and 120 days (ESDC has stated that two examples include emergency or warranty work repair technicians / mechanics); or more than 120 days to a maximum of 2 year (ESDC has stated that two examples include project-based … Read More