greater scrutiny, as well as new
penalties for and limits on the total
duration of work permits.
BRIAN
DINGLE
nationals who suffered a disadvantage as a result of the
error; or
any justification similar to
those set out above.
&VICTORIA
COWLING
While practical jokes and
general foolishness are the hallmarks of April Fool’s Day, no
one will be laughing when the
new compliance and enforcement provisions of the
Immigration and Refugee Protection
Regulations (IRPR) come into
force on April 1, 2011.
The Canadian economy has
become increasingly reliant on
the Temporary Foreign Worker
Program (TFWP) to address
critical skill and labour shortages in recent years. Unprecedented demand and new economic realities have highlighted
the shortcomings of the existing
regulatory framework, which is
virtually silent on enforcement
and compliance.
The goals of the new regulations
are to minimize the potential for
the exploitation of foreign workers,
establish stricter employer accountability mechanisms and reinforce
the notion that the TFWP is meant
to address temporary labour market shortages. Although well-intentioned, the amendments reach far
beyond their intended goals, and
will have a significant impact on
temporary foreign workers and
their employers, subjecting them to
‘Genuineness’ of job offers
The amendments establish
the specific criteria to assess
whether a job offer made to a
foreign national is genuine:
the offer is made by an
employer actively engaged in
the business in which the offer
is made (except in the case of
live-in caregivers);
the offer is consistent with
the reasonable employment
needs of the employer;
the employer is reasonably
able to fulfill the terms of the
job offer; and
the past compliance of the
employer, or any person who
recruited the foreign national
for the employer, with the federal or provincial laws regulating employment or recruitment of employees in the
province in which the foreign
worker is intending to work.
Prescribing the factors on
which to base the assessment of
the genuineness of a job offer is
intended to result in a more
systematic and rigorous
approach.
permit application, and would
consider the employment of
any temporary foreign worker
in the two-year period immediately preceding the application
or request. Offending employers will be permitted to demonstrate why their failure to do so
was justified under the regulations, including:
a change in federal or provincial laws or applicable collective agreements;
an error in interpretation,
made in good faith by the
employer, of its obligations to a
foreign worker, provided the
employer subsequently undertakes corrective action;
Employer ‘blacklist’
The amendments also require
Citizenship and Immigration Canada (CIC) to maintain a list of
employers who are prohibited from
accessing the TFWP, publishing
the employers’ names, addresses
and periods of ineligibility on its
website to inform the public as to
which employers are ineligible to
employ foreign workers. Human
Resources and Skills Development
Canada (HRSDC) will not issue an
“Ironically, provisions designed to protect foreign
workers may ultimately punish employees for the
conduct of their employers and will negatively
impact the competitiveness of legitimate
employers....
reinforces the fact that the purpose of the TFWP is to address
temporary labour shortages. It
also encourages temporary foreign
workers to apply for permanent
residency status in order to
respond to the long-term needs of
the Canadian labour market.
The changes provide for
exemptions for certain foreign
nationals, including those whose
work permits are issued pursuant
to international agreements, such
as the North American Free Trade
Agreement or the General Agreement on Trade in Services, or
those whose employment will create or maintain significant social,
cultural or economic benefits or
opportunities to Canadian citizens and permanent residents.
Denial of service provisions
Employers who fail to provide substantially the same
wages, working conditions or
employment in occupations as
they had offered previously will
be made ineligible from accessing the TFWP for a period of
two years. The assessment will
be undertaken at the time of a
new request for a Labour Market Opinion (LMO) or work
the implementation of meas-
ures by the employer in
response to a dramatic change
in economic conditions that
directly affected the employer,
providing that they were not
directed at foreign nationals
disproportionately;
an unintentional accounting
or administrative error made
by the employer, if the employer
subsequently provided com-
pensation or made sufficient
attempts to do so to all foreign
LMO to an ineligible employer.
Similarly, CIC and the Canada Bor-
der Services Agency (CBSA) will
not issue a work permit to an ineli-
gible employer.
Limits on periods of employment
The amendments impose a
four-year cap on the period of
employment for a foreign national
working in Canada, unless four
years have elapsed since the day on
which he or she accumulated four
years work in Canada. This limit
Ramifications for employers
The amendments will have serious ramifications for both employers and foreign workers in Canada.
Any deemed violation of the regulations could result in a two-year
bar from employing foreign nationals under the TFWP, and may damage the company’s reputation if it is
listed on an Internet blacklist of
offending employers.
Ironically, provisions designed
to protect foreign workers may
ultimately punish employees for
the conduct of their employers and
will negatively impact the competitiveness of legitimate employers
who face a more burdensome
application process.
Brian Dingle and Victoria
Cowling are partners in Borden
Ladner Gervais LLP’s Business
Immigration Group in Toronto.
We want to hear from you!
Email us at: tlw@lexisnexis.ca
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