Background

As was previously mentioned, Jason Kenney, Minister of Employment and Social Development, and Chris Alexander, Minister of Citizenship and Immigration, announced changes to Canada’s Temporary Foreign Worker (“TFW”) program on June 20, 2014.  Among these changes was a proposal to impose fines of up to $100,000 on employers who violated the TFW program.  The names of employers who were fined, and the amount of the fine, would also be published on the public list of violators.

At the end of September 2014, Employment and Social Development Canada (“ESDC”) published a discussion paper, which proposed to implement a system of Administrative Monetary Penalties (“AMPs”) for violations of the TFW program.  It also proposed to increase the maximum ban for employers who violate the TFW program from two years to ten years (a permanent ban was also being considered).

On June 12, 2015, the Minister of Citizenship and Immigration published amendments (the “Amendments”) to the Immigration and Refugee Protection Regulations (“IRPR”), which were intended to implement these proposed changes.  These Amendments will now come into force on December 1, 2015.

Overview

According to R209.94, the purpose of AMPs is to encourage compliance with the provisions of the Immigration and Refugee Protection Act (“IRPA”) and the IRPR, and not to punish.  According to R209.95(1), an employer who fails to comply with one of the conditions listed in Schedule 2, Table 1, if the failure to do so is not justified under the IRPR, commits a violation and:

1. Is liable to an administrative monetary penalty of an amount that is determined in accordance with R209.98 [see Schedule 2, Table 2] or if it is determined under that section that there is no penalty, is issued a warning informing the employer that there is no administrative monetary penalty for the violation but that the violation will be considered in the calculation of the total number of points under R209.991(1)(a)(i) [see Schedule 2, Tables 4 and 5] for any subsequent violation; and
2. If applicable, is ineligible to employ a foreign national for whom a work permit is required for the period determined in accordance with R209.99 [Schedule 2, Table 3].

Calculation of AMPs

The AMPs will be determined by the Minister of Employment and Social Development (“ESDC”) or a Citizenship and Immigration Canada (“CIC”) officer based on:

1. The type of violation;
2. Whether the employer is an individual, small business, or large business;
3. The employer’s history of violations that occurred on or after December 1, 2015; and
4. The severity of the violation according to a system of points.

AMPs are cumulative, and separate AMPs will be imposed for each violation.

According to R209.93, the term “small business” is defined as any business, including its affiliates, that has fewer than 100 employees or less than $5 million in annual gross revenues at the time a request for an assessment is received, or if no such request is made, at the time a copy of an offer of employment for a work permit application is provided to the Minister.  The term “large business” is defined as any business that does not meet the definition of “small business.”

According to R209.991, the total number of points in respect of each violation is determined by adding the points resulting from the employer’s compliance history [Schedule 2, Table 4] to the points resulting from the severity of the violation [Schedule 2, Table 5].  However, where the employer has made an acceptable voluntary disclosure, the total number of calculated points may be reduced as follows:

1. If the total number is four or more, four points will be subtracted from the total; or
2. If the total number is less than four, the value will be replaced with a value of zero.

The voluntary disclosure made by an employer with respect to the commission of a violation by the employer is considered acceptable if:

1. The disclosure is complete; and
2. At the time the voluntary disclosure is made, the employer’s compliance is not being reviewed and no enforcement action related to an offence under IRPA is being undertaken against the employer.

However, a CIC officer or the Minister of ESDC may still conclude that the voluntary disclosure is not acceptable after considering

1. The severity of the impact of the violation on the foreign national;
2. In the case of an LMIA-exempt work permit, the severity of the impact of the violation on the Canadian economy, or in the case of an LMIA-based work permit, the severity of the impact of the violation on the Canadian labour market;
3. Whether the disclosure was made in a timely manner;
4. The number of times an acceptable voluntary disclosure is made by the employer; and
5. The nature of the condition with which the employer failed to comply.

The maximum AMP is $100,000 per violation and the total that can be imposed is capped at $1 million on a single notice of final determination.  In addition, the total AMPs imposed on a single employer cannot exceed $1 million in the one-year period preceding the date of the final determination.

There is no limitation on the collections period for AMPs.  A new Labour Market Impact Assessment (“LMIA”) or work permit application will not be accepted if the employer has not paid an outstanding AMP or is not complying with a payment agreement (if it has entered into one).

Rules Applicable to Violations

As violations are calculated based on the number of violations that have occurred, the following rules will determine when certain conduct will be treated as a separate violation:

1. A violation of a condition that affects more than one foreign national constitutes a separate violation for each foreign national affected [R209.96 (1)].
2. A violation of any one of the following conditions constitutes a separate violation:
• To provide the foreign national with employment in the same occupation as the occupation that is set out in the foreign national’s offer of employment;
• To provide the foreign national with wages that are substantially the same as — but not less favourable than — those set out in the foreign national’s offer of employment; and
• To provide the foreign national with working conditions that are substantially the same as — but not less favourable than — those set out in the foreign national’s offer of employment [R209.96(2)]
3. For employers who employ foreign nationals as live-in caregivers, a violation of either one of the following conditions constitutes a separate violation:
• To ensure that the foreign national resides in a private household in Canada,
• To ensure that the foreign national provides child care, senior home support care or care of a disabled person in that household without supervision [R209.96(3)].
4. A violation of the condition of making reasonable efforts to provide a workplace that is free of abuse within the meaning of R72.1(7)(a) [physical abuse, sexual abuse, psychological abuse, and financial abuse] constitutes a separate violation [R209.96(4)].

Assessment Procedure

If it is assessed during an inspection that a violation has been committed because the employer failed to comply with a condition and that failure was not justified under the IRPR, a preliminary finding must be issued to the employer.  A notice of preliminary finding may be corrected or cancelled before a final determination is made.

After the notice of preliminary finding is issued, employers will be provided the opportunity to make written submissions regarding the information in the notice within 30 days after it is received.  An employer may be granted an extension to this opportunity to respond if the Minister of ESDC or the CIC officer is satisfied that there is a reasonable explanation for requesting a longer period.

The Minister of ESDC or a CIC officer shall issue a notice of final determination if it is determined that a violation was committed because the employer failed to comply with a condition and that failure was not justified.  This determination is final and binding except for judicial review.

Ineligibility to Participate in the TFWP

Employer violations may also result in a ban from future participation in the TFW program.  As of December 1, 2015, the maximum period of ineligibility will change from two years to a permanent ban in the most serious cases. 

According to R209.99(1), the period of ineligibility for a violation is the period set out in Column 2, 3 or 4 of Schedule 2, Table 3.  If a ban is imposed, the duration of the ineligibility can vary from one year to a permanent bar, depending on the circumstances.  According to R209.99(2), the ban begins on the day that the determination is made in respect of the employer.

Publication of Employer’s Information

According to R209.997(1), if the Minister of ESDC or a CIC officer makes a determination under R209.996 that a violation has occurred, the employer’s details will be added to the public list of violators, except where the employer has received only a warning and no AMP has been imposed.  The public list will include the following information:

1. The employer’s name;
2. The employer’s address;
3. The criteria or conditions with which the employer failed to comply;
4. The day on which the determination was made;
5. The eligibility status of the employer; and
6. If applicable:
• The AMP amount, and
• The ineligibility period of the employer.

Conclusion

In light of the increased penalties that will become effective on December 1, 2015, it is critical that employers ensure their compliance with all conditions imposed upon them, in connection with any LMIA-based or LMIA-exempt work permit, and that they continue to comply with these conditions for the duration of the TFWs work permit in Canada.

SCHEDULE 2

VIOLATIONS

TABLE 1
EMPLOYER CONDITIONS

Item	Column 1 Provision	Column 2 Short-form Description	Column 3 Classification
1	209.2(1)(b)(i)	Be able to demonstrate that any information 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	Type A
2	209.2(1)(b)(ii) and 209.3(1)(c)(ii)	Retain any document that relates to compliance with cited conditions during a period of six years, beginning on the first day of the foreign national’s employment	Type A
3	209.3(1)(a)(iii)(C)	For employers of a live-in caregiver: have sufficient financial resources to pay wages that were offered	Type A
4	209.3(1)(c)(i)	Be able to demonstrate that any information provided for the assessment was accurate during a period of six years, beginning on the first day of the foreign national’s employment	Type A
5	209.4(1)(a)	Report at any time and place specified to answer questions and provide documents	Type A
6	209.4(1)(b)	Provide required documents	Type A
7	209.4(1)(c)	Attend any inspection, unless the employer was not notified, give all reasonable assistance to the person conducting the inspection and provide that person with any required document or information	Type A
8	209.2(1)(a)(ii) and 209.3(1)(a)(ii)	Comply with the federal and provincial laws that regulate employment and the recruiting of employees in the province in which the foreign national works	Type B
9	209.2(1)(a)(iii) and 209.3(1)(a)(iv)	Provide the foreign national with employment in the same occupation and substantially the same, but not less favourable, wages and working conditions as outlined in the foreign national’s offer of employment	Type B
10	209.3(1)(a)(iii)(A)	For employers of a live-in caregiver: ensure that foreign national resides in a private household in Canada and provides child care, senior home support care or care of a disabled person in that household without supervision	Type B
11	209.3(1)(b)(i)	Ensure that the employment of the foreign national will result in direct job creation or retention for Canadian citizens or permanent residents, if that was a factor that led to the issuance of the work permit	Type B
12	209.3(1)(b)(ii)	Ensure that the employment of the foreign national will result in the development or transfer of skills and knowledge for the benefit of Canadian citizens or permanent residents, if that was a factor that led to the issuance of the work permit	Type B
13	209.3(1)(b)(iii)	Hire or train Canadian citizens or permanent residents, if that was a factor that led to the issuance of the work permit	Type B
14	209.3(1)(b)(iv)	Make reasonable efforts to hire or train Canadian citizens or permanent residents, if that was a factor that led to the issuance of the work permit	Type B
15	209.2(1)(a)(i) and 209.3(1)(a)(i)	Be actively engaged in the business in which the offer of employment was made, unless the offer was made for employment as a live-in caregiver	Type C
16	209.3(1)(a)(iii)(B)	For employers of a live-in caregiver: provide the foreign national with adequate furnished private accommodation in the household	Type C
17	209.2(1)(a)(iv) and 209.3(1)(a)(v)	Make reasonable efforts to provide a workplace that is free of abuse within the meaning of paragraph 72.1(7)(a) of these Regulations	Type C

 

TABLE 2
ADMINISTRATIVE MONETARY PENALTY AMOUNTS

Item	Column 1 Total Number of Points	Column 2 Type A Violation		Column 3 Type B Violation		Column 4 Type C Violation
1		Individual or Small Business ($)	Large Business ($)	Individual or Small Business ($)	Large Business ($)	Individual or Small Business ($)	Large Business ($)
2	0 or 1	none	none	none	none	none	none
3	2	500	750	750	1,000	1,000	2,000
4	3	750	1,000	1,250	2,000	5,000	10,000
5	4	1,000	2,000	3,000	7,000	10,000	20,000
6	5	4,000	6,000	7,000	12,000	15,000	30,000
7	6	8,000	10,000	12,000	20,000	20,000	40,000
8	7	12,000	20,000	20,000	30,000	35,000	50,000
9	8	20,000	30,000	35,000	45,000	45,000	60,000
10	9 or 10	30,000	45,000	50,000	60,000	60,000	70,000
11	11 or 12	40,000	60,000	60,000	70,000	70,000	80,000
12	13 or 14	50,000	70,000	70,000	80,000	80,000	90,000
13	15 or more	100,000	100,000	100,000	100,000	100,000	100,000

 

TABLE 3
PERIOD OF INELIGIBILITY

Item	Column 1 Total Number of Points	Column 2 Type A Violation	Column 3 Type B Violation	Column 4 Type C Violation
1	0 to 5	none	none	none
2	6	none	none	1 year
3	7	none	1 year	2 years
4	8	1 year	2 years	5 years
5	9 or 10	2 years	5 years	10 years
6	11 or 12	5 years	10 years	10 years
7	13 or 14	10 years	10 years	10 years
8	15 or more	permanent	permanent	permanent

 

TABLE 4
COMPLIANCE HISTORY

Item	Column 1 Criterion	Column 2 Points
1	For Type A and Type B violations — first violation	1
2	For Type A violations — second or subsequent violation	2
3	For Type B violations — second violation	2
4	For Type C violations — first violation	2
5	For Type B violations — third or subsequent violation	3
6	For Type C violations — second violation	3
7	For Type C violations — third or subsequent violation	4

 

TABLE 5
SEVERITY OF THE VIOLATION

Item	Column 1 Criterion	Column 2 Points
1	The employer derived competitive or economic benefit from the violation	0 to 6
2	The violation involved abuse of a foreign national (physical, psychological, sexual or financial)	0 to 10
3	The violation negatively affected the Canadian labour market or the Canadian economy	0 to 6
4	The employer did not make reasonable efforts to minimize or remediate the effects of the violation	0 to 3
5	The employer did not make reasonable efforts to prevent recurrence of the violation	0 to 3

 

Introduction

On June 20, 2014, the Jason Kenney, Minister of Employment and Social Development, and Chris Alexander, Minister of Citizenship and Immigration, announced significant changes to Canada’s Temporary Foreign Worker Program.  Prior to these changes, there were essentially two categories of temporary foreign workers – those who required a Labour Market Opinion (“LMO”) and those who were LMO-exempt.  The purpose of the LMO was to assess whether issuance of a work permit to the foreign national would have a neutral or positive effect on the Canadian labour market.

Under the new structure, the LMO will now be replaced by the Labour Market Impact Assessment (“LMIA”).  LMIA-exempt foreign workers will become part of the newly-named International Mobility Program.  As a result, the Temporary Foreign Worker Program will only refer to foreign workers who require an LMIA.

The International Mobility Program

As mentioned above, the International Mobility Program will include foreign workers who are exempt from the requirement of an LMIA.  Changes in the processing of exempt foreign workers are described below.

Requirement to Submit Job Offers Directly to Citizenship and Immigration Canada (“CIC”)

Employers are not currently required to submit any information directly to CIC regarding job offers made to LMIA-exempt foreign workers.  Under the new structure, employers hiring through the International Mobility Program will be required to submit the job offer and other relevant information to CIC.  Foreign nationals will not be able to apply for a work permit until their employer has done so.

New Fee and Employer Compliance System for the International Mobility Program [Implementation: Summer 2015]

The reforms will introduce an enhanced compliance monitoring system for employers who are employing foreign workers through the International Mobility Program.   These compliance systems will be on par with the enforcement improvements being made by Employment and Social Development Canada (“ESDC”) to the Temporary Foreign Worker Program.

This system will be made possible by the collection of a new compliance fee of $230.00CAD per work permit (up from $155.00CAD), which will be imposed in the near future.  This fee will apply in cases where the foreign national is LMIA-exempt and the work permit is tied to a specific employer.

New Privilege Fee for Open Work Permit Applicants [Implementation: Summer 2015]

Some LMIA exemptions allow for foreign nationals to apply for open work permits, which are not tied to a specific employer.  The Canadian Government claims that there is often inadequate information available regarding the types of jobs that open work permit holders take and what effect they may have on the Canadian labour market.

As a result, CIC will imposing a $100 privilege fee on holders of open work permits in the near future.  The privilege fee will allow for improved data collection on the employment of open work permit holders.  In addition, the funds collected will be used to increase awareness and promote the participation of Canadians in opportunities to live and work abroad, and to provide information to foreign nationals with open work permits and their employers, in order to promote their transition to permanent residence.

Changes to Specific Exemptions

The Canadian Government is currently undertaking a comprehensive review of existing LMIA-exempt streams.  Any streams that it finds do not warrant an exemption will be reclassified under the Temporary Foreign Worker Program.

In addition, the Canadian Government is making immediate changes to the following exemptions:

• International Experience Canada (“IEC”) – The IEC consists of thirty-two mobility agreements that allow young Canadians to live and work abroad for up to two years without meeting labour market (and other) requirements, while providing reciprocal opportunities for young people from those countries to work in Canada; the number of spots available for each country is negotiated each year.  However, the Canadian Government is concerned about the imbalance between the number of young people from partner countries participating in the IEC and the number of young Canadians participating abroad.  To remedy this problem, the Canadian Government will increase its promotion of the program to make young Canadians aware of the IEC and work with partner countries to reduce administrative barriers to Canadian participants.  It will also review each agreement to ensure that the rate of reciprocity is improved.
• Intra-Company Transferees (“ICTs”) with Specialized Knowledge [Implementation: Immediate] – The Canadian Government has expressed concern that the ICT exemption applicable to specialized knowledge workers is being abused.  To address this concern, guidelines have been implemented to strictly define the meaning of “specialized knowledge.”  Immigration officers will also be required to compare a foreign worker’s proposed salary to the prevailing Canadian wage for that job, when assessing whether the worker truly possesses specialized knowledge.  In addition, a wage floor has been imposed in any ICT specialized knowledge cases that are not based on an existing or future free trade agreement; this wage floor will be the prevailing wage for the occupation, in the region where the proposed employment will occur.  Please note that CIC previously announced these changes on June 9, 2014.

The Temporary Foreign Worker Program

As mentioned above, the Temporary Foreign Worker Program will now only include foreign workers who require an LMIA.  Changes in the processing of LMIAs are described below.

Use of Wage Instead of National Occupation Codes

Wage levels will now replace the National Occupational Classification (“NOC”) as the main criteria for administering the Temporary Foreign Worker Program.  This is based on CIC’s claim that wages more accurately reflect occupational skill level and local labour market conditions.

Jobs for which proposed wages are below the provincial or territorial median wage will be considered “low-wage.”  Similarly, jobs for which proposed wages are at or above the provincial or territorial median will be considered “high-wage.”

New LMIA Process

The old LMO is being replaced by the more rigorous LMIA as the screening mechanism for employers seeking to hire temporary foreign workers.  The following will apply to the new LMIA process:

• Employers will need to provide information on the number of Canadians that applied for a particular job, the number of Canadians that the employer interviewed and an explanation if Canadian applicants were not hired.
• Employers will need to attest they are aware of the rule that Canadians cannot be laid-off or have their hours reduced at a worksite that employs temporary foreign workers.
• New and better sources of labour market information will be used to determine if there are Canadians who could fill these positions.
• ESDC will refuse to process applications if there are concerns that temporary foreign workers may or will have a significant negative effect on the Canadian labour market.

Cap on Low-Wage Temporary Foreign Workers [Implementation: Immediate]

Employers with ten or more employees applying for a new LMIA will be subject to a cap of 10 percent on the proportion of their workforce that can consist of low-wage temporary foreign workers.  This cap will be applied per worksite of an employer and is based on total hours worked at that worksite.

To provide employers who are above the 10% cap sufficient time to transition to the new rules, it will be phased in over the next couple of years.  Effective immediately, if an employer that currently has a low-wage temporary foreign worker workforce exceeding the 10% cap applies for a new LMIA, it will either be limited at 30% or be frozen at its current level, whichever is lower. The transitional cap will be further reduced to 20% beginning July 1, 2015 and reduced again to 10% on July 1, 2016.  The Canadian Government may also consider lowering this cap below 10% in the future.

Refusing Applications in Areas of High Unemployment

Applications for the lowest-wage, lowest-skill, entry-level occupations in the food services, accommodation and retail trade sectors will be barred from the Temporary Foreign Worker Program in areas of high unemployment (6% or higher).  LMIA applications will not be processed if the employer meets all of the following criteria:

• It is applying for an LMIA in a Statistics Canada Economic Region with an annual unemployment rate over 6%;
• It is seeking an LMIA in a specific occupation identified under North American Industry Classification System (“NAICS”) as Accommodations & Food Service or Retail Sales (NAICS 72, 44, 45); and
• It is seeking an LMIA in an occupation in one of the following NOC Skill Level “D” occupations: (1) 6641 (Food Counter Attendants, Kitchen Helpers and Related Occupations), (2) 6661 (Light Duty Cleaners), (3) 6611 (Cashiers), (4) 6622 (Grocery Clerks and Store Shelf Stockers), (5) 7611 (Construction Trades Helpers and Labourers), (6) 8612 (Landscaping and Grounds Maintenance Labourers), (7) 6672 (Other Attendants in Accommodation and Travel), (8) 6663 (Janitors, Caretakers and Building Superintendents), (9) 6662 (Specialized Cleaners), and 6651 (Security Guards and Related Occupations).

Refusal of Pending Applications for Low-Wage Positions [Implementation: Immediate]

ESDC will also refuse to process any pending applications for low-wage positions as of June 20, 2014.  Any pending application that was submitted prior to June 20, 2014, for a position where the prevailing wage is below the provincial or territorial median hourly wage will no longer be processed.  However, this provision is not applicable in the Province of Quebec.

Reducing the Duration of Work Permits [Implementation: Immediate]

Effective immediately, the duration of work permits set out in an LMIA will be limited to a maximum of one year for all low-wage positions, rather than the two-year duration that previously applied.  As a result, employers of low-wage temporary foreign workers will be required to reapply every year for a new LMIA.

Reducing the Cumulative Duration Limit for Low Wage Stream [Implementation: Summer 2015]

The current cumulative duration limit for temporary foreign workers (subject to certain exceptions) is four years.  The Canadian Government intends to reduce how long a temporary foreign worker in the low-wage stream will be able to work in Canada.  However, this measure will not apply to temporary foreign workers currently in Canada on valid work permits.

Changing the Provincial/Territorial Temporary Foreign Worker Annexes

Five provincial/territorial governments (Alberta, British Columbia, Ontario, Nova Scotia and Yukon) currently have annexes to their immigration agreements with the Canadian Government that establish LMIA exemptions in their jurisdiction.  In these cases, the provinces and territories may propose LMIA exemptions for certain occupations and pilot projects involving exemptions to the LMIA process can be initiated.

The Government of Canada has given notice that it is changing these existing agreements.  Any new agreements with provinces and territories will be much more limited in scope.  As a result, more employers will be subject to the LMIA requirement.

Requirement of Transition Plans for High-Wage Positions [Implementation: Immediate]

Employers who want to hire temporary foreign workers in high-wage occupations will be required (with limited exceptions) to submit transition plans with their LMIA application to ensure that they are taking steps to reduce their reliance on temporary foreign workers over time.

The transition plans are in addition to the existing recruitment and advertising requirements that employers must meet to ensure that Canadians are given the first chance at available jobs.  Transition plans will oblige employers of high-wage temporary foreign workers to help Canadians obtain in-demand skills through activities like investing in skills training or taking on more apprentices, or an employer can provide proof that they are helping a high-skilled temporary foreign worker transition to becoming a permanent resident of Canada.

Employers will also be required to undertake additional recruitment activities, including reaching out to organizations serving groups traditionally under‑represented in the workforce (i.e. new immigrants, Aboriginal people, youth, Canadians with disabilities) to fill available jobs.

Employers will be required to report on the success of their transition plan the next time they apply to hire high-wage temporary foreign workers.  Employers must also report on the results of their transition plan if they are selected for an inspection.

Highest-Demand, Highest-Paid and Shortest-Duration Occupations [Implementation: Immediate]

LMIAs for highest-demand occupations (skilled trades), highest-paid (top 10%) occupations or short-duration work periods (120 days or less) will now be provided within a ten-business-day service standard.   However, the LMIA will still be subject to the same rigorous review as a standard LMIA application.

Foreign Pilots in Canada [Implementation: Immediate]

In recent years, concerns have been raised that some airlines are excluding Canadian pilots from seasonal jobs by requiring job applicants to already be trained on specific types of planes (type‑rating) before they are hired.  Effective July 1, 2014, airlines filing an LMIA on behalf of a foreign pilot must:

• Meet the minimum advertising requirements for high-wage occupations;
• Specify the following criteria in their job postings:
  • No more than a maximum of 4,000 flight hours for a First Officer and 5,000 hours for a Captain as required experience;
  • Possess a valid commercial pilot’s licence;
  • Require English and/or French language proficiency;
  • Include industry standard medical testing requirements for commercial flight;
  • State both the legal and common names of the airline operating in Canada;
  • Not include as an essential or asset requirement the necessity of holding a type rating for a specific type of aircraft (although requiring applicants to have experience flying equipment that is similar in configuration and complexity to the airline’s fleet is considered acceptable);
  • Indicate when training bonds will be applied and they must cover a minimum of two years employment;
  • Negotiate a transition plan with ESDC documenting the airline’s future efforts and commitment to decrease the reliance on foreign pilots while increasing its complement of Canadian citizen and permanent resident pilots; and
  • Submit LMIA applications a minimum of three months before the first day of work to ensure that ESDC can thoroughly review the application (any exception to this timeline must be requested prior to the LMIA being submitted).

New Job Matching Service

A new enhanced Job Matching Service will allow Canadians to apply directly through the Canada Job Bank for jobs that match their skills and experience, and provide information to program officers reviewing an employer’s LMIA application on how many qualified Canadians have applied for specific jobs.

Statistics Canada Quarterly Job Vacancy Survey [Implementation: Spring 2015]

To provide better information on job vacancies in Canada, Statistics Canada will conduct a new Quarterly Job Vacancy Survey at a cost of $8 million per year. This survey will collect information on occupations in-demand, job openings, duration of job vacancies, educational requirements for occupations and other pertinent data.

This new Job Vacancy Survey (to be launched in the Spring of 2015) will collect data from up to 100,000 employers compared to 15,000 employers under the current Job Vacancy Survey.  The data will be available at the provincial/territorial level and by Statistics Canada Economic Region.  The current survey provides data only by province/territory.  The new survey will also provide quarterly job vacancy estimates by occupation and skill level required.

Statistics Canada Annual National Wage Survey [Implementation: Spring 2015]

Statistics Canada will conduct a new annual National Wage Survey (to be launched in the Spring of 2015) at a cost of $6 million per year.  The data will be collected from up to 100,000 employers, compared to 56,000 households previously.  The previous survey’s information is only accurate at the provincial level.  However, the new Wage Survey will include a sample size large enough to provide reliable data broken down by province/territory and by Statistics Canada Economic Region.

Better Use of Existing Government Data [Implementation: Summer 2015]

The survey data will be supplemented by information from the Employment Insurance (“EI”) program and other internal sources to accurately determine the availability of qualified Canadian workers.  For example, program officers will know if employers requesting temporary foreign workers have recently laid-off Canadian workers. Program officers will also be able to determine if employers are requesting temporary foreign workers in regions where there are unemployed Canadians with the appropriate skills.  EI data can also be used to help match unemployed workers with available jobs.

Increased Number and Scope of Inspections [Implementation: Immediate]

Effective immediately, the Canadian Government is significantly increasing the number of inspections so that one in four employers using temporary foreign workers will be inspected each year.  These inspections will take place as a result of tips, employers being deemed high-risk, and random audits.

More Criminal Investigations [Implementation: Autumn 2014]

Employers suspected of criminal activities under the Immigration and Refugee Protection Act (“IRPA”) are referred to the Canada Border Services Agency (“CBSA”).  CBSA will receive new financial resources to increase its capacity to investigate suspected offenses by employers under the IRPA.

Improved Information Sharing [Implementation: Autumn 2014]

The Canadian Government will improve its ability to collect and share information between government departments and other levels of government.

Blacklist, Suspension and Revocation [Implementation: Fall 2014]

If an employer violates (or is suspected of violating) the Temporary Foreign Worker Program, ESDC has the authority to suspend or revoke the employer’s LMIA.  An LMIA will be suspended while an employer is under investigation and will be revoked if, following an investigation, it found to have violated the program.  ESDC will also not process any LMIAs for employers that are under investigation until the investigation is complete and the employer is found to not to have violated the program.  In addition to revocation, if an employer violates the Temporary Foreign Worker Program it will be banned and fined.

The names of employers whose LMIAs are suspended or revoked are currently being added to a public Blacklist website.  Beginning in Fall of 2014, the Blacklist will also include the names of any employer who has been found to be in violation of the Temporary Foreign Worker Program and details of the penalty imposed.

Monetary Fines for Employers Who Violate the Temporary Foreign Worker Program [Implementation: Autumn 2014]

Beginning in Fall of 2014, the Canadian Government will impose fines of up to $100,000CAD (depending on the severity of the offence) on employers who violate the Temporary Foreign Worker Program.  These new fines would be in addition to fines that can already be imposed on employers convicted of offences under IRPA.  The Canadian Government will also publicly disclose the names of employers who have been fined and the amount of the fine on the Blacklist.

Increased LMIA Application Fee [Implementation: Immediate]

The LMIA fee will increase from $275.00CAD to $1,000.00CAD for every temporary foreign worker position requested by an employer.  ESDC will also be seeking the authority to impose an estimated $100CAD privilege fee on employers applying for LMIAs to offset the costs of Government of Canada investments in skills and job training.

Exemptions for On-Farm Primary Agriculture and Live in Caregiver Program Applicants

On-farm primary agriculture, including the Seasonal Agricultural Worker Program (“SAWP”), will be exempt from the fee, the cap, the one-year LMIA duration, and the reduction in the period that a low-wage temporary foreign worker will be allowed to remain in Canada; there are proven acute labour shortages in this sector and the unfilled jobs are truly temporary.  The Live-in Caregiver Program (“LCP”) is also exempt from the cap, the one-year LMIA, and the reduced duration in Canada.  All other measures including stronger enforcement and tougher penalties will apply to on-farm primary agriculture, SAWP and LCP.

End of Moratorium on Food Services Sector [Implementation: Immediate]

In light of the above changes to the Temporary Foreign Worker Program, the Canadian Government is ending the moratorium that was placed on the food services sector on April 24, 2014.

Conclusion

The Canadian Government has not provided a timetable for all of the announced changes.  However, it is clear that some changes have not been implemented yet, while others have been scheduled for implementation at some future date.  In any event, the above changes, once fully implemented, will make it much more difficult for Canadian employers to hire temporary foreign workers.