ARCHIVED — Vol. 147, No. 23 — June 8, 2013

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Regulations Amending the Immigration and Refugee Protection Regulations

Statutory authority

Immigration and Refugee Protection Act

Sponsoring department

Department of Citizenship and Immigration

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Background

Temporary Foreign Worker Program overview

The Temporary Foreign Worker Program (TFWP) contributes to Canada’s economic development by allowing employers to hire foreign workers to meet their short-term labour and skills needs only when qualified Canadian citizens or permanent residents are not readily available, as well as by supporting Canadian interests through building and facilitating economic opportunities with key partners. The TFWP is jointly managed by Human Resources and Skills Development Canada (HRSDC) and Citizenship and Immigration Canada (CIC), under the authority of the Immigration and Refugee Protection Act (IRPA) and the Immigration and Refugee Protection Regulations (IRPR). In addition, the Canada Border Services Agency (CBSA) assesses admissibility and program requirements, and, acting on behalf of CIC, determines whether to issue work permits at ports-of-entry.

As part of the process for a foreign worker to be authorized to work in Canada, employers must in some cases obtain a labour market opinion (LMO) from HRSDC, which includes an assessment of labour market factors. In other cases, an LMO will not be required, for example when employers benefit from an exemption from the LMO process (for example an exemption relating to the North American Free Trade Agreement [NAFTA], to a provincial or territorial annex to bilateral immigration agreements with the federal government, or to meeting “Canadian interests”). Through an LMO, HRSDC provides an assessment of whether the employment of a foreign national is likely to have a negative, neutral or positive effect on the Canadian labour market. This includes, but is not limited to, an analysis of the wages and working conditions offered to temporary foreign workers (TFWs) and verifying the employer’s efforts to hire or train Canadian citizens or permanent residents. HRSDC also assesses whether the job offer is genuine and whether employers provided any TFWs employed in the past two years with substantially the same wages, occupation and working conditions as those set out in the relevant offer of employment. CIC considers this LMO, where it is required, along with other program requirements when determining whether to issue a work permit to a foreign national. Foreign nationals must obtain a work permit from CIC whether or not their intended occupation requires an LMO.

When labour shortages are acute, the TFWP should be a last resort for businesses so they can continue to grow and create more opportunities for Canadians. The Government of Canada committed to reform the TFWP and announced in the Economic Action Plan 2013 that it would ensure that Canadians are given the first chance at available jobs.

Past improvements to program efficiency and integrity

On June 29, 2012, the Government introduced legislative changes to the IRPA through the Jobs, Growth, and Long-term Prosperity Act to enhance the capacity of CIC and HRSDC to monitor employer compliance. The IRPA amendments authorize the Governor in Council to confer certain powers and duties on the Minister responsible for HRSDC and to make regulations respecting the requirements that may or must be imposed on employers in relation to the authorization of a foreign national to work in Canada, and to confer the power to conduct inspections for the purpose of verifying employers’ compliance with these requirements.

In 2011, amendments were made to the IRPR to provide for a more rigorous LMO assessment at the application stage, including factors to guide the assessment of the genuineness of a job offer. The 2011 amendments also included provisions to make employers ineligible to access the TFWP for a period of two years where the employer has been found to have provided wages, working conditions or an occupation to a TFW that was not substantially the same as what was offered in the original job offer. These changes aimed to improve the authority to monitor employers to better protect the Canadian labour market and reduce the potential of TFW exploitation by employers.

Protecting foreign workers from the risk of abuse and exploitation

The current IRPR do not explicitly prevent employers from employing TFWs in businesses where there are reasonable grounds to suspect a risk of sexual exploitation (e.g. strip clubs, escort services and massage parlours), but foreign nationals brought to Canada to work in these businesses are particularly at risk of being exploited, abused, or trafficked. This has been a long-standing concern of the Government of Canada.

In order to protect foreign workers from the risk of abuse, exploitation, and trafficking in these businesses, the ministers responsible for HRSDC and CIC announced measures in July 2012 directing HRSDC officers to issue negative LMOs for all applications from employers in businesses where there are reasonable grounds to suspect a risk of sexual exploitation — namely strip clubs, escort services and massage parlours. Additionally, CIC officers were instructed to no longer process new work permit applications from TFWs intending to work for these businesses. When these measures were introduced, the ministers announced that the Government would take future actions, including making regulatory changes, as part of its National Action Plan to Combat Human Trafficking.

Issues and objectives

Although HRSDC and CIC have the authority to conduct employer compliance reviews, there are currently significant limitations. For example, HRSDC and CIC can only verify the compliance of employers at the time of an LMO request or a work permit application. This means that unless an employer applies for another LMO, HRSDC cannot verify whether the employer met the terms of a previous job offer. With this limited authority, HRSDC and CIC cannot address complaints against employers in a timely manner, nor can they adequately monitor employers after the TFWs are employed.

Current employer monitoring activities have revealed that employer compliance reviews play an important role in identifying non-compliance and bringing employers into compliance. Observed non-compliance includes failure on the part of the employers to provide substantially the same wages, working conditions or occupation as stated in the employer’s offer of employment. Non-compliance with the terms of an LMO has a negative impact on the TFW since he or she may not, for example, be provided prevailing wage or adequate working conditions. In more than half of the cases where employers were initially found non-compliant, employers agreed to take corrective action. Once corrective action is taken, the employer is no longer in non-compliance. These results suggest that employer monitoring plays an important role and that most employers are willing to take action to remain compliant.

In rare cases where employers do not take corrective action and receive a final finding of non-compliance, the current authority to impose consequences is limited. For example, if an employer is found to be non-compliant by HRSDC as part of its assessment of the LMO request, CIC is only able to ban that employer from accessing the TFWP when there is an application for a work permit by another foreign national to work for the employer. In other words, employers cannot be placed on the ineligibility list directly following a finding of non-compliance; rather, a foreign national must first apply for a work permit for that employer, and only then can CIC ban that employer. Available information indicates that it is very unlikely that a foreign national would submit an application for a work permit in the absence of a positive LMO from HRSDC. Therefore, it is very unlikely that CIC will be able to place an employer on the ineligibility list, in spite of findings of non-compliance by HRSDC.

These proposed amendments to the IRPR have two main interrelated objectives:

  1. Protect the integrity of the Canadian labour market by providing enhanced authority to verify employer compliance with TFWP requirements (such as efforts to hire Canadians) and to apply consequences for non-compliance; and
  2. Protect TFWs from abuse, exploitation and human trafficking.
1. Protecting the integrity of the Canadian labour market

The TFWP is driven by employer demand; it enables employers to hire foreign workers on a temporary basis to fill short-term skills and labour needs only when Canadians or permanent residents are not available. The proposed regulatory amendments, which would strengthen the CIC and HRSDC’s authority to monitor employer compliance, will support the Government of Canada’s objectives of helping unemployed Canadians get back to work and ensuring that Canadians are given the first chance at available jobs, as committed to in the Economic Action Plan 2013. With details to be announced in the coming months under the Economic Action Plan 2013, the Government will

  • Work with employers to ensure that temporary foreign workers are relied upon only when Canadians genuinely cannot fill those jobs;
  • Increase the recruitment efforts that employers must make to hire Canadians before they will be eligible to apply for temporary foreign workers, including increasing the time span and reach of advertising;
  • Help employers who legitimately rely on temporary foreign workers, due to a lack of qualified Canadian applicants, find ways to ensure that they have a plan to transition to a Canadian workforce over time;
  • Propose amendments to the IRPR to restrict the identification of non-official languages as job requirements when hiring through the Temporary Foreign Worker process; and
  • Propose user fees for employers applying for temporary foreign workers through the LMO process.

In particular, the proposed amendments are intended to protect the integrity of the Canadian labour market by introducing an effective compliance verification mechanism to ensure that employers continue to uphold all TFWP requirements after the TFWs are employed, including meeting the conditions set out in the original job offer, LMO, and work permit. With the proposed amendments, inspections could be conducted of employers from the first day of employment of the TFW up until six years after the last day of that employment. Complaints could also be responded to more quickly. Employers who are found to be non-compliant with any of the conditions set out in the IRPR would be placed on a public ineligibility list and would become ineligible to access the TFWP for two years.

2. Protecting Temporary Foreign Workers

The Government of Canada is committed to protecting temporary foreign workers. For example, on June 6, 2012, HRSDC and CIC put forward measures to improve protection for vulnerable temporary foreign workers as part of the National Action Plan to Combat Human Trafficking. (see footnote 1) Human trafficking is a complex issue with a diverse range of victims and circumstances. While it is impossible to truly know the full scope and impact of this problem at the international or Canadian level, we do know that women and children are the primary victims — overwhelmingly so for sexual exploitation, but also for forced labour. However, men are not immune to this crime. According to a 2010 RCMP report, (see footnote 2) foreign nationals destined to work in businesses in the sex trades are at higher risk of being exploited, abused, or trafficked. In other forms of exploitation, such as failing to provide wages that are consistent with those set out on the original job offer, or not providing working conditions consistent with those generally accepted in Canada, there is also a negative impact on TFWs. The proposed regulatory amendments would improve protection for temporary foreign workers and address concerns related to exploitation in its varying degrees.

The proposed amendments would further protect TFWs by providing a more effective and timely means to address an employer’s non-compliance with program requirements while the TFW is still in the country. The proposed new verification mechanisms are intended to detect and deter employer non-compliance with program requirements. Additionally, TFWs may directly benefit from the new authority, which includes the potential for timely corrective action by the employer, such as paying wages owed to the TFW.

With regard to protecting workers destined to work in businesses in sectors where there are reasonable grounds to suspect a risk of sexual exploitation, while important measures were introduced by the ministers responsible for HRSDC and CIC in 2012, the Government announced its intent to take further action, including proposing regulatory amendments, as part of its National Action Plan to Combat Human Trafficking. The proposed regulatory amendments would align the Regulations with the new Ministerial Instructions that deny these businesses access to TFWs.

Description

To meet the two objectives stated above, the proposed regulatory amendments include the following:

Changes to the factors for assessing work permit and LMO applications

The proposed regulatory amendments would

  • Extend the TFWP compliance verification period from two years to a period of up to six years, depending on the factors;
  • Change the assessment of the employer’s compliance with previous offers of employment into an assessment of whether the employer provided each TFW employed with employment in the occupation set out in the foreign national’s offer of employment and with wages and working conditions that were substantially the same as — but not less favourable than — those in the offer;
  • Clarify that LMO and work permit applications are assessed on the basis of information provided on the officer’s request by the employer making the offer and any other relevant information;
  • Clarify that the prevailing wage rate is determined by HRSDC;
  • Amend certain provisions to provide greater clarity;
  • Amend the provisions relating to the work of the TFW and labour disputes in progress to ensure the assessments of this factor by HRSDC and CIC are consistent; and
  • Ensure that HRSDC would not process LMO applications from employers in businesses where there are reasonable grounds to suspect a risk of sexual exploitation and that CIC would not issue work permits to foreign nationals destined to work for these employers.
Proposed conditions imposed on all foreign nationals
  • Foreign nationals would be prohibited from entering into an employment agreement, or extending the term of an employment agreement, with an employer that offers, on a regular basis, stripping, erotic dance, escort services or erotic massages. These proposed changes would apply to all foreign nationals, including holders of open work permits and international students.
Proposed conditions imposed on employers

Where an LMO is required, employers who are issued a positive LMO would be required to comply with the following conditions during the period of employment of the foreign national or, where applicable, during any other period that has been agreed to by the employer and HRSDC at the time the opinion was provided. Employers would also have to be able to demonstrate, when required, that they are meeting, or that they have met, these conditions. The exact conditions agreed to by employers depend on their specific LMO and are negotiated with HRSDC prior to the issuance of the LMO.

  • Employers must ensure that the employment of the foreign national will result in direct job creation or job retention for Canadian citizens or permanent residents, if that was one of the factors that led to the issuance of the LMO and subsequent work permit;
  • Employers must 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 one of the factors that led to the issuance of the LMO and subsequent work permit;
  • Employers must make reasonable efforts to hire or train, or hire or train, Canadian citizens or permanent residents, if that was one of the factors that led to the issuance of the LMO and subsequent work permit; and
  • In the case of an employer who employs a TFW as a live-in caregiver, the employer must
    • Ensure that the TFW resides in a private household and provides, without supervision, the care for which the TFW was employed;
    • Provide the TFW with adequate furnished and private accommodations in the household; and
    • Have sufficient financial resources to pay the TFW the wages offered.

Other proposed amendments include the following conditions which would be imposed on employers in LMO-required and non-LMO situations. Employers would have to be able to demonstrate, when required, that they are meeting or that they have met these conditions, which must be respected during the period of employment for which the work permit was issued:

  • The employer, other than the employer of a live-in caregiver, must be actively engaged in the business in respect of which the offer of employment was made;
  • The employer must comply with the federal and provincial laws that regulate employment and the recruiting of employees in the province in which the TFW works;
  • The employer must provide a TFW with employment in the same occupation as that set out in that TFW’s offer of employment and with wages and working conditions that are substantially the same as — but not less favourable than — those in the offer;
  • The employer must make reasonable efforts to provide TFWs with a work place that is free of abuse, more specifically, free of
    • physical abuse, including assault and forcible confinement,
    • sexual abuse, including sexual contact without consent,
    • psychological abuse, including threats and intimidation, and
    • financial abuse, including fraud and extortion;
  • The employer must not be convicted of an offence of human trafficking under the IRPA, unless, in respect of that conviction, there has been a final determination of an acquittal or a pardon has been granted, or a record suspension has been ordered; and
  • The employer must not be convicted, or discharged, under the Criminal Code of any of the following offences, unless there has been a final determination of an acquittal or a pardon has been granted, or a record suspension has been ordered: trafficking in persons (or related offence), an offence of a sexual nature (or an attempt) against an employee, an offence causing death or bodily harm to an employee, uttering threats to cause death or bodily harm against an employee, or an offence involving the use of violence (or an attempt) against an employee. In addition, the employer must not be convicted outside Canada of an offence that would constitute one of the above offences if committed in Canada, unless there has been a final determination of an acquittal.

During the period beginning on the first day of the period of employment for which the work permit is issued to the foreign national and ending six years after the last day of that period of employment, the employer must be able to demonstrate that any information that they provided in an LMO and work permit application was accurate, and retain any document that relates to compliance with the imposed conditions.

CIC and HRSDC inspection authorities

The proposed regulatory amendments would provide CIC officers and the Minister responsible for HRSDC, or her delegates, the authority to conduct inspections for the purpose of verifying compliance with the conditions described above.

The proposed inspection authority would allow HRSDC and CIC to verify whether the information provided by the employer at the time of the LMO request or work permit application was accurate, and whether the employer complies with the conditions imposed on them during the period of employment of TFWs. For example, in relation to the current “genuineness” factors, employers may be asked to demonstrate that, during the period of employment of the TFW, they are actively engaged in the business in respect of which the offer of employment was made, and are compliant with federal and provincial employment and recruitment laws in the province in which the TFW works. Employers may also be asked to demonstrate that during the period of employment of the TFW, they provide the TFW with employment in the same occupation as that set out in the offer of employment and with wages and working conditions that are substantially the same as, but not less favourable than, those in the offer.

Under the proposed amendments, CIC officers and the Minister responsible for HRSDC, or her delegates, would have the authority, for the purpose of verifying compliance with the imposed conditions, to require an employer to provide documents and to report at any specified time and place in order to answer questions and provide documents.

Citizenship and Immigration Canada officers and the Minister responsible for HRSDC would also have the authority to enter and inspect any premises or place in which a TFW performs work. In the case of an on-site visit as part of the inspection of a dwelling-house, CIC officers or the Minister responsible for HRSDC, or her delegates, would be allowed to enter it without the occupant’s consent only under the authority of a warrant issued by a justice of the peace.

In conducting an on-site visit as part of the inspection, a CIC officer or the Minister responsible for HRSDC, or her delegates, may, among other things, ask the employer and any person employed by the employer any relevant questions; require from the employer, for examination, any documents (originals or copies) found in the premises or place; and request their assistance in making copies if necessary.

In LMO-required cases, it would be the Minister responsible for HRSDC, or her delegates, who is given the above-mentioned powers. In non-LMO cases, the powers could either be exercised by a CIC officer or the officer could request, on a case-by-case basis, that the Minister responsible for HRSDC exercise the powers.

Citizenship and Immigration Canada officers and the Minister responsible for HRSDC would have the authority to conduct an inspection at any time during and up to six years after the employment of a TFW.

Triggers for an inspection

Under the proposed regulatory amendments, an inspection may be triggered if

  • a CIC officer or the Minister responsible for HRSDC has a reason to suspect that the employer is not complying or has not complied with any conditions imposed;
  • the employer has not complied with the conditions in the past; or
  • the employer is chosen for random verification of compliance with the conditions.
Proof of employer compliance with the conditions

In order to demonstrate that they met the conditions imposed on them, employers would be required to retain documents that demonstrate their compliance with the conditions during the period of employment for which the work permit was issued.

Employers selected for an inspection or a verification of compliance would also have to report to any specified place at any specified time to present documents and to answer questions related to their compliance. This requirement would include being interviewed over the phone; providing any documents requested by a CIC officer or the Minister responsible for HRSDC, or her delegates; being present during an on-site visit; and giving all reasonable assistance to officials conducting the inspection through any of these methods.

Justification for non-compliance

During the inspections, employers found to be non-compliant with the conditions that are set out in regulations would have the opportunity to provide a justification for their non-compliance, where applicable. Specifically, force majeure (e.g. natural disasters or fires) would be added as a further possible justification for failure to comply with certain conditions.

Employer non-compliance

Employers would be non-compliant if they fail to meet the conditions imposed on them for the periods of time specified in the proposed amendments (i.e. at any time during and up to six years after the employment of a TFW).

Once determined to be non-compliant without adequate justification, an employer would be denied access to the TFWP for two years and the employer’s name and address would be added to an ineligibility list posted on CIC’s Web site.

Finally, the proposed regulatory amendments would provide that an offer of employment to a Federal Skilled Trades or Federal Skilled Worker applicant for permanent residency cannot be made by an employer that appears on the ineligibility list.

Information sharing

The proposed regulatory amendments introduce information sharing provisions that include disclosure of information from CIC to HRSDC for IRPA purposes, specifically in relation to an application for a work permit or an employer’s compliance with the conditions imposed on them. This information may be used to inform the LMO assessment and inspection process and to verify employers’ compliance with conditions.

The proposed regulatory amendments also introduce a provision for disclosure of information from CIC to the competent authorities of the provinces and territories in relation to the same matters as above. In this case, this information may be used to inform work permit determinations and to verify employers’ compliance with conditions. As an example, one of the factors for assessment of LMO and non-LMO cases is whether the employer has complied with provincial and territorial laws that regulate employment and recruitment: in some cases, federal officers would need to contact responsible provincial ministries to verify the employer’s compliance with provincial and territorial laws, and would need to share information with the provinces and territories on the case being reviewed.

Consultation

As part of the ongoing TFWP review, HRSDC and CIC are conducting consultations with representatives from national and regional employer, labour and other stakeholder organizations. These consultations are ongoing and being held in order to seek input on possible options for improving the program to better serve Canadians.

Industry-specific concerns
  • Agriculture: Agriculture stakeholders mentioned that farms have a difficult time attracting Canadian workers; therefore, they must rely on other sources of labour, including TFWs.
  • Manufacturing and construction: Employers in the manufacturing and construction industries stated that they hire TFWs because they are unable to find qualified Canadians or permanent residents. They also suggested that audits done after the work permit is issued could be used to ensure that employers are meeting their obligations.
  • Oil and gas: This industry is seasonal, with different operations and employment needs in the summer and winter. Stakeholders indicated that these changing realities require an immigration program that can be flexible and responsive.
  • Business, economic development, hospitality, and health care: Labour shortages cause stress for small businesses and entrepreneurs, and may result in them having to limit their hours of operation or close their businesses altogether. Companies stated that they had to hire consultants on staff to assist with the requirements in the current TFWP since they do not have in-house capacity.

In response to these concerns, CIC and HRSDC agreed to continue to examine ways to improve the TFWP.

“One-for-One” Rule

It has been determined that the “One-for-One” Rule applies to this proposal. This proposal is considered to have a small net burden for employers.

The total administrative burden on employers has been calculated at $9 per business. This is a net increase in the administrative burden on business of $201,923 (annualized average). These costs are related to having to collect and store more documents. In particular, employers would have to collect and store information in order to enable them to demonstrate their compliance with TFWP requirements. Also, employers selected for an inspection, which could include an on-site visit, would have the additional burden of reporting the requested information to Government. The number of employers that applied for an LMO in 2011 was 55 501, and of that number, 42 760 employers received positive LMOs. It is estimated that 59 769 employers could apply to the TFWP and 46 048 total employers (including live-in caregiver employers) could receive a positive LMO in 2014.

Data from HRSDC indicate that 50% (average of five previous years) of all employers who apply for an LMO are live-in caregiver employers. Employers of live-in caregivers are not considered businesses, thus are removed from the analysis. Therefore, 29 885 business employers who apply for an LMO and 23 024 business employers who receive positive LMOs would be impacted by the proposed regulatory amendments in 2014.

Currently, 10 factors are assessed for each LMO application (excluding cases where an employer is selected for an employer compliance review). Each factor takes approximately one half-hour for an employer to respond to, according to discussion with and review by HRSDC policy and operations teams.

In the baseline, selected employers are subject to an employer compliance review, and currently on-site visits are not conducted. The proposed regulatory amendments would result in an increased time demand on employers who would be subject to an inspection, as they would be asked to report on additional elements that they are not currently required to report on. It is estimated that the additional elements would translate to half an hour of additional administrative staff time per employer to comply with the new employer compliance review format.

Furthermore, under the proposed regulatory amendments, the number of employers subject to a compliance review would increase from the current baseline compliance verification regime. These employers would be required to allocate administrative staff time to report on the additional elements in the inspection. HRSDC estimates that the inspections would take approximately two hours per employer. A further group of employers would be selected for an on-site visit. HRSDC estimates three hours of management time to prepare and be present for an on-site visit.

The value of time for administrative staff and management to perform tasks as a result of the above-mentioned compliance evaluation measures is valued as an administrative burden and is calculated using salary costs and estimated time costs to business. These estimates were derived based on HRSDC policy and operational expert opinion.

An administrative burden does not apply to proposed regulatory amendments associated with changes relating to businesses where there are reasonable grounds to suspect a risk of sexual exploitation. Since the entry of foreign nationals destined to work in these businesses has essentially been stopped as of July 4, 2012, the effect of the proposed regulatory amendments on these businesses is expected to be null.

Small business lens

The small business lens does not apply to this proposal as the increased costs to each small business would be very low.

Rationale

As part of its plan for jobs, growth and long-term prosperity, the Government of Canada is committed to ensuring that Canadians and permanent residents are given the first chance at available jobs. The proposed amendments enhance HRSDC and CIC’s authority to monitor employers, respond to complaints, and protect vulnerable temporary foreign workers, including those destined to work in the sex trade.

Citizenship and Immigration Canada and Human Resources and Skills Development Canada also developed various communications products, such as pamphlets for TFWs in seven languages to inform them of their rights in Canada, as well as for employers to inform them of the new TFWP requirements, including their responsibilities to be compliant. Furthermore, Web sites have been updated and new forms have been developed. This outreach continues through both printed and Internet materials and via presentations to employer groups. These measures would continue as they are an essential complement to the proposed regulatory amendments in achieving their objectives.

The proposed regulatory amendments are necessary to continue to protect the integrity of the Canadian labour market, including to ensure that Canadian citizens and permanent residents are given the first chance at available jobs, and to continue to uphold Canada’s commitment to protecting human rights, including protecting TFWs from abuse or exploitation in a timely, effective manner.

Should concerns arise after a positive LMO has been issued, HRSDC and CIC will have the authority to conduct inspections and review compliance from the first day of employment of the TFW until six years after the expiry of the work permit. With these proposed regulatory amendments, CIC and HRSDC would be able to protect the Canadian labour market and take proactive action against non-compliant employers, including while the TFWs are still in Canada.

With the proposed Regulations in place, HRSDC and CIC could follow up on complaints in a timely manner, and also verify employer compliance randomly, including after the issuance of a work permit.

The proposed regulatory changes would also strengthen the legal authority of HRSDC and CIC officers to prevent employers from accessing foreign nationals when they would be destined to work in businesses that offer, on a regular basis, stripping, erotic dance, escort services or erotic massage. These proposed changes are consistent with the introduction of legislative changes through the Safe Streets and Communities Act (Bill C-10) aimed at protecting foreign nationals who are at risk of being subjected to humiliating or degrading treatment, including sexual exploitation. The changes are also consistent with the National Action Plan to Combat Human Trafficking that took effect on July 14, 2012.

Overall, through the implementation of a more rigorous compliance and inspection regime, the proposed amendments would ensure that workers are better protected and that non-compliant employers are identified and barred from further access to the TFWP for two years. By enhancing the capacity of HRSDC and CIC to protect the integrity of the Canadian labour market, the proposed regulatory amendments support the Government of Canada’s objectives to help unemployed Canadians get back to work and ensure that Canadians are given the first chance at available jobs, as committed to in the Economic Action Plan 2013.

Implementation, enforcement and service standards

The proposed regulatory amendments would come into force upon registration. The inspection regime created by these proposed amendments would be implemented by building on the current authority of the TFWP to assess a returning employer’s compliance with regard to the wages, working conditions and occupation offered to TFWs. The period subject to a compliance review, at the application stage, would be six years.

After the coming into force of the proposed amendments, employers would also be required to retain documents related to compliance with the conditions for a period beginning on the first day of the period of employment for which the work permit is issued to the foreign national and ending six years after the last day of that period of employment.

Citizenship and Immigration Canada and Human Resources and Skills Development Canada would be authorized to exercise their inspection powers to verify whether the information provided by the employer at the time of the LMO request or work permit application was accurate, and whether the employer complies with the conditions imposed on them during the period of employment of TFWs.

The necessary implementation measures, including training of CIC and HRSDC staff, would be funded out of existing departmental resources for this purpose.

Existing communications products would be updated to reflect the new modes of verifying compliance and the consequences of non-compliance as described above.

Contact

Philippe Massé
Director
Immigration Branch
Department of Citizenship and Immigration
365 Laurier Avenue W
Ottawa, Ontario
K1A 1L1
Telephone: 613-957-0001
Fax: 613-954-0850
Email: TFWP-PTET-REG@cic.gc.ca

PROPOSED REGULATORY TEXT

Notice is given that the Governor in Council, pursuant to subsections 4(2.1) (see footnote a) and 5(1) and sections 14 (see footnote b), 32 (see footnote c) and 150.1 (see footnote d) of the Immigration and Refugee Protection Act (see footnote e), proposes to make the annexed Regulations Amending the Immigration and Refugee Protection Regulations.

Interested persons may make representations concerning the proposed Regulations within 15 days after the date of publication of this notice. All such representations must cite the Canada Gazette, Part Ⅰ, and the date of publication of this notice, and be addressed to Philippe Massé, Director, Temporary Resident Policy and Program, Immigration Branch, Department of Citizenship and Immigration, 365 Laurier Avenue West, Ottawa, Ontario K1A 1L1 (tel.: 613-957-0001; fax: 613-954-0850; email: Philippe.Masse@cic.gc.ca).

Ottawa, May 30, 2013

JURICA ČAPKUN
Assistant Clerk of the Privy Council

REGULATIONS AMENDING THE IMMIGRATION AND
REFUGEE PROTECTION REGULATIONS

AMENDMENTS

1. (1) Clause 87.2(3)(d)(ii)(C) of the Immigration and Refugee Protection Regulations (see footnote 3) is replaced by the following:

(C) they have an offer of employment — for continuous full-time work for a total of at least one year in the skilled trade occupation that is specified in the application and is in the same minor group set out in the National Occupational Classification as the occupation specified on their work permit — that is made by up to two employers, other than an embassy, high commission or consulate in Canada or an employer whose name appears on the list referred to in subsection 209.91(3) if a period of two years has not elapsed since the day on which the determination referred to in subsection 203(5) or 209.91(1) or (2) was made, who are specified on the work permit, subject to the visa being issued to the foreign national,

(2) Clause 87.2(3)(d)(iv)(A) of the Regulations is replaced by the following:

(A) up to two employers, other than an embassy, high commission or consulate in Canada or an employer whose name appears on the list referred to in subsection 209.91(3) if a period of two years has not elapsed since the day on which the determination referred to in subsection 203(5) or 209.91(1) or (2) was made, have made an offer of employment in the skilled trade occupation specified in the application for continuous full-time work for a total of at least one year to them subject to the visa being issued to them, and

2. Paragraph 183(1)(b.1) of the Regulations is replaced by the following:

  • (b.1) if authorized to work by this Part or Part 11, to not enter into an employment agreement, or extend the term of an employment agreement, with an employer who, on a regular basis, offers stripping, erotic dance, escort services or erotic massages;
  • (b.2) if authorized to work by this Part or Part 11, to not enter into an employment agreement, or extend the term of an employment agreement, with an employer whose name appears on the list referred to in subsection 209.91(3) if a period of two years has not elapsed since the day on which the determination referred to in subsection 203(5) or 209.91(1) or (2) was made; and

3. The Regulations are amended by adding the following after section 196:

Restrictions

196.1 A foreign national must not enter into an employment agreement, or extend the term of an employment agreement, with an employer

  • (a) who, on a regular basis, offers stripping, erotic dance, escort services or erotic massages; or

  • (b) whose name appears on the list referred to in subsection 209.91(3) if a period of two years has not elapsed since the day on which the determination referred to in subsection 203(5) or 209.91(1) or (2) was made.

4. (1) The portion of subparagraph 200(1)(c)(ii.1) of the Regulations before clause (A) is replaced by the following:

  • (ii.1) intends to perform work described in section 204 or 205, has an offer of employment to perform that work and an officer has determined, on the basis of any information provided on the officer’s request by the employer making the offer and any other relevant information,

(2) Clause 200(1)(c)(ii.1)(B) of the Regulations is replaced by the following:

  • (B) that the employer
    • (I) during the six-year period preceding the day on which the application for the work permit is received by the Department, provided each foreign national employed by the employer with employment in the same occupation as that set out in the foreign national’s offer of employment and with wages and working conditions that were substantially the same as — but not less favourable than — those set out in that offer, or
    • (II) is able to justify, under subsection 203(1.1), any failure to satisfy the criteria set out in subclause (I), or

(3) Paragraph 200(3)(c) of the Regulations is replaced by the following:

  • (c) the work that the foreign national intends to perform is likely to adversely affect the settlement of any labour dispute in progress or the employment of any person involved in the dispute;

(4) Subsection 200(3) of the Regulations is amended by striking out “or” at the end of paragraph (g) and by replacing paragraph (h) with the following:

  • (g.1) the foreign national intends to work for an employer who, on a regular basis, offers stripping, erotic dance, escort services or erotic massages; or

    (h) the foreign national intends to work for an employer whose name appears on the list referred to in subsection 209.91(3) and a period of two years has not elapsed since the day on which the determination referred to in subsection 203(5) or 209.91(1) or (2) was made.

(5) Paragraphs 200(5)(a) and (b) of the French version of the Regulations are replaced by the following:

  • a) l’offre est présentée par un employeur, autre que celui qui emploie un aide familial, véritablement actif dans l’entreprise à l’égard de laquelle elle est faite;

  • b) l’offre correspond aux besoins légitimes en main-d’œuvre de l’employeur;

5. (1) The portion of subsection 203(1) of the Regulations before paragraph (a) is replaced by the following:

Assessment of employment offered

203. (1) On application under Division 2 for a work permit made by a foreign national other than a foreign national referred to in subparagraphs 200(1)(c)(i) to (ii.1), an officer must determine, on the basis of an opinion provided by the Minister of Human Resources and Skills Development, any information provided on the officer’s request by the employer making the offer and any other relevant information, if

(2) Paragraph 203(1)(b) of the French version of the Regulations is replaced by the following:

  • b) le travail de l’étranger est susceptible d’avoir des effets positifs ou neutres sur le marché du travail canadien;

(3) Subparagraph 203(1)(d)(ii) of the English version Regulations is replaced by the following:

  • (ii) the employer will provide the foreign national with adequate furnished and private accommodations in the household, and

(4) Paragraph 203(1)(e) of the Regulations is replaced by the following:

  • (e) the employer

    • (i) during the period beginning six years before the day on which the request for an opinion under subsection (2) is received by the Minister of Human Resources and Skills Development and ending on the day on which the application for the work permit is received by the Department, provided each foreign national employed by the employer with employment in the same occupation as that set out in the foreign national’s offer of employment and with wages and working conditions that were substantially the same as — but not less favourable than — those set out in that offer, or

    • (ii) is able to justify, under subsection (1.1), any failure to satisfy the criteria set out in subparagraph (i).

(5) The portion of subsection 203(1.1) of the Regulations before paragraph (a) is replaced by the following:

Justification

(1.1) A failure to satisfy the criteria set out in subparagraph (1)(e)(i) is justified if it results from

(6) Paragraph 203(1.1)(c) of the French version of the Regulations is replaced by the following:

  • c) de la mise en œuvre, par l’employeur, de mesures qui permettent de faire face à des changements économiques importants touchant directement son entreprise, et ce, sans que cela ne vise de façon disproportionnée tout étranger à son service;

(7) Subsection 203(1.1) of the Regulations is amended by striking out “or” at the end of paragraph (e), by adding “or” at the end of paragraph (f) and by adding the following after paragraph (f):

  • (g) force majeure.

(8) The portion of subsection 203(2) of the Regulations before paragraph (a) is replaced by the following:

Opinion on request

(2) The Minister of Human Resources and Skills Development must provide the opinion referred to in subsection (1) on the request of an officer or an employer or group of employers, other than an employer who, on a regular basis, offers stripping, erotic dance, escort services or erotic massages or an employer whose name appears on the list referred to in subsection 209.91(3) if a period of two years has not elapsed since the day on which the determination referred to in subsection (5) or 209.91(1) or (2) was made. A request may be made in respect of

(9) Subsection 203(2.1) of the Regulations is replaced by the following:

Matters to be considered

(2.1) The opinion provided by the Minister of Human Resources and Skills Development on the matters set out in paragraphs (1)(a) to (e) must be based on any information provided by the employer making the offer and any other relevant information, but, for the purposes of this subsection, the period referred to in paragraph (1)(e) ends on the day on which the request for the opinion is received by that Minister.

(10) The portion of subsection 203(3) of the French version of the Regulations before paragraph (a) is replaced by the following:

Facteurs – effets sur le marché du travail

(3) Le ministre des Ressources humaines et du Développement des compétences fonde son avis relatif aux éléments visés à l’alinéa (1)b) sur les facteurs suivants :

(11) Paragraphs 203(3)(a) and (b) of the Regulations are replaced by the following:

  • (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;

  • (b) whether the employment of the foreign national will or is likely to result in the development or transfer of skills and knowledge for the benefit of Canadian citizens or permanent residents;

(12) Paragraph 203(3)(c) of the French version of the Regulations is replaced by the following:

  • c) le travail de l’étranger est susceptible de résorber une pénurie de main-d’œuvre;

(13) Paragraphs 203(3)(d) and (e) of the Regulations are replaced by the following:

  • (d) whether the wages offered to the foreign national are consistent with the prevailing wage rate for the occupation — that rate being determined by the Minister of Human Resources and Skills Development by taking into account the rates that are made publicly available by that Minister and the wages paid to Canadian citizens and permanent residents by the employer making the offer, if that information is provided by the employer on request of that Minister — and whether the working conditions meet generally accepted Canadian standards;
  • (e) whether the employer will hire or train Canadian citizens or permanent residents or has made, or has agreed to make, reasonable efforts to do so; and

(14) Subsections 203(5) and (6) of the Regulations are replaced by the following:

Failure to satisfy criteria

(5) If an officer determines under subclause 200(1)(c)(ii.1)(B)(II) or subparagraph (1)(e)(ii) that the criteria set out in subclause 200(1)(c)(ii.1)(B)(I) or subparagraph (1)(e)(i) were not satisfied and that the failure to do so was not justified by the employer under subsection (1.1), the Department must notify the employer of that determination and must add the employer’s name and address to the list referred to in subsection 209.91(3).

6. The Regulations are amended by adding the following after section 209:

DIVISION 4

CONDITIONS IMPOSED ON EMPLOYERS

Definition of “document”

209.1 For the purposes of this division, “document” means anything on which information that is capable of being understood by a person, or read by a computer or other device, is recorded or marked.

Conditions imposed on employer of foreign national referred to in subparagraph 200(1)(c)(ii.1)

209.2 (1) An employer who has made an offer of employment to a foreign national referred to in subparagraph 200(1)(c)(ii.1) must comply with the following conditions:

  • (a) during the period of employment for which the work permit is issued to the foreign national,

    • (i) the employer, other than an employer of a live-in caregiver, must be actively engaged in the business in respect of which the offer of employment was made,

    • (ii) the employer must comply with the federal and provincial laws that regulate employment, and the recruiting of employees, in the province in which the foreign national works,

    • (iii) the employer must provide the foreign national with employment in the same occupation as that set out in the foreign national’s offer of employment and with wages and working conditions that are substantially the same as — but not less favourable than — those set out in that offer,

    • (iv) the employer must make reasonable efforts to provide a work place that is free of abuse, within the meaning of paragraph 72.1(7)(a),

    • (v) the employer must not be convicted of an offence under section 118 of the Act unless, in respect of that conviction, there has been a final determination of an acquittal or a pardon has been granted under Her Majesty’s royal prerogative of mercy or under section 748 of the Criminal Code, or a record suspension has been ordered under the Criminal Records Act, and the pardon or record suspension has not been revoked or ceased to have effect,

    • (vi) the employer must not be convicted under the Criminal Code, or discharged under section 730 of the Criminal Code, of any of the following offences unless, in respect of that conviction, there has been a final determination of an acquittal or a pardon has been granted under Her Majesty’s royal prerogative of mercy or under section 748 of the Criminal Code, or a record suspension has been ordered under the Criminal Records Act, and the pardon or record suspension has not been revoked or ceased to have effect:

      • (A) an offence of a sexual nature, or an attempt to commit such an offence, against a person who was an employee of that employer at the time the offence was committed,

      • (B) an offence under section 279.01 or 279.011 of the Criminal Code (trafficking in persons) or a related offence referred to in section 279.02 or 279.03 of the Criminal Code,

      • (C) an offence causing death or bodily harm, as defined in section 2 of the Criminal Code, to a person who was an employee of that employer at the time the offence was committed or an attempt to commit such an offence,

      • (D) an offence under paragraph 264.1(1)(a) of the Criminal Code (uttering threats to cause death or bodily harm) against a person who was an employee of that employer at the time the offence was committed, or

      • (E) an offence involving the use of violence, or an attempt to commit such an offence, against a person who was an employee of that employer at the time the offence was committed, and

      (vii) the employer must not be convicted outside Canada of an offence that, if committed in Canada, would constitute an offence referred to in subparagraph (v) or clauses (vi)(A) to (E) unless, in respect of that conviction, there has been a final determination of an acquittal; and
    (b) during the period beginning on the first day of the period of employment for which the work permit is issued to the foreign national and ending six years after the last day of that period of employment, the employer must
    • (i) be able to demonstrate that any information they provided under subparagraph 200(1)(c)(ii.1) was accurate, and
    • (ii) retain any document that relates to compliance with the conditions set out in paragraph (a).

Justification

(2) A failure to comply with any of the conditions set out in subparagraphs (1)(a)(i) to (iv) is justified if it results from any of the circumstances set out in subsection 203(1.1).

Justification

(3) A failure to comply with either of the conditions set out in paragraph (1)(b) is justified if the employer made all reasonable efforts to comply with the condition or if it results from anything done or omitted to be done by the employer in good faith.

Conditions imposed on employer of foreign national referred to in subparagraph 200(1)(c)(iii)

209.3 (1) An employer who has made an offer of employment to a foreign national referred to in subparagraph 200(1)(c)(iii) must comply with the following conditions:

  • (a) during the period of employment for which the work permit is issued to the foreign national,

    • (i) the employer, other than an employer of a live-in caregiver, must be actively engaged in the business in respect of which the offer of employment was made,

    • (ii) the employer must comply with the federal and provincial laws that regulate employment, and the recruiting of employees, in the province in which the foreign national works,

    • (iii) the employer, in the case of an employer who employs a foreign national as a live-in caregiver, must

      • (A) ensure that the 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,

      • (B) provide the foreign national with adequate furnished and private accommodations in the household, and

      • (C) have sufficient financial resources to pay the foreign national the wages that were offered to the foreign national,

    • (iv) the employer must provide the foreign national with employment in the same occupation as that set out in the foreign national’s offer of employment and with wages and working conditions that are substantially the same as — but not less favourable than — those set out in that offer,

    • (v) the employer must make reasonable efforts to provide a work place that is free of abuse, within the meaning of paragraph 72.1(7)(a),

    • (vi) the employer must not be convicted of an offence under section 118 of the Act unless, in respect of that conviction, there has been a final determination of an acquittal or a pardon has been granted under Her Majesty’s royal prerogative of mercy or under section 748 of the Criminal Code, or a record suspension has been ordered under the Criminal Records Act, and the pardon or record suspension has not been revoked or ceased to have effect,

    • (vii) the employer must not be convicted under the Criminal Code, or discharged under section 730 of the Criminal Code, of any of the following offences unless, in respect of that conviction, there has been a final determination of an acquittal or a pardon has been granted under Her Majesty’s royal prerogative of mercy or under section 748 of the Criminal Code, or a record suspension has been ordered under the Criminal Records Act, and the pardon or record suspension has not been revoked or ceased to have effect:

      • (A) an offence of a sexual nature, or an attempt to commit such an offence, against a person who was an employee of that employer at the time the offence was committed,

      • (B) an offence under section 279.01 or 279.011 of the Criminal Code (trafficking in persons) or a related offence referred to in section 279.02 or 279.03 of the Criminal Code,

      • (C) an offence causing death or bodily harm, as defined in section 2 of the Criminal Code, to a person who was an employee of that employer at the time the offence was committed or an attempt to commit such an offence,

      • (D) an offence under paragraph 264.1(1)(a) of the Criminal Code (uttering threats to cause death or bodily harm) against a person who was an employee of that employer at the time the offence was committed, or

      • (E) an offence involving the use of violence, or an attempt to commit such an offence, against a person who was an employee of that employer at the time the offence was committed, and

    • (viii) the employer must not be convicted outside Canada of an offence that, if committed in Canada, would constitute an offence referred to in subparagraph (vi) or clauses (vii)(A) to (E) unless, in respect of that conviction, there has been a final determination of an acquittal;
  • (b) during the period of employment for which the work permit is issued to the foreign national or any other period that has been agreed on by the employer and the Minister of Human Resources and Skills Development at the time the opinion referred to in subsection 203(2) was provided,


    • (i) the employer must ensure that the employment of the foreign national will result in direct job creation or job retention for Canadian citizens or permanent residents, if that was one of the factors that led to the issuance of the work permit,

    • (ii) the employer must 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 one of the factors that led to the issuance of the work permit,

    • (iii) the employer must hire or train Canadian citizens or permanent residents, if that was one of the factors that led to the issuance of the work permit, and
    • (iv) the employer must make reasonable efforts to hire or train Canadian citizens or permanent residents, if that was one of the factors that led to the issuance of the work permit; and

    (c) during the period beginning on the first day of the period of employment for which the work permit is issued to the foreign national and ending six years after the last day of that period of employment, the employer must

    • (i) be able to demonstrate that any information they provided under subsections 203(1) and (2.1) was accurate, and

    • (ii) retain any document that relates to compliance with the conditions set out in paragraphs (a) and (b).

Justification

(2) A failure to comply with any of the conditions set out in subparagraphs (1)(a)(i) to (v) and paragraph (1)(b) is justified if it results from any of the circumstances set out in subsection 203(1.1).

Justification

(3) A failure to comply with either of the conditions set out in paragraph (1)(c) is justified if the employer made all reasonable efforts to comply with the condition or if it results from anything done or omitted to be done by the employer in good faith.

Conditions imposed on all employers

209.4 (1) An employer referred to in section 209.2 or 209.3 must

  • (a) report at any specified time and place in order to answer questions and provide documents, in accordance with section 209.6;

  • (b) provide any documents that are required under section 209.7; and

  • (c) attend any inspection referred to in section 209.8 or 209.9, unless the employer was not notified of it, give all reasonable assistance to the person conducting that inspection and provide that person with any document or information that the person requires.

Justification

(2) A failure to comply with any of the conditions set out in subsection (1) is justified if the employer made all reasonable efforts to comply with the condition or if it results from anything done or omitted to be done by the employer in good faith.

Circumstances for exercise of powers – sections 209.6 to 209.9

209.5 The powers set out in sections 209.6 to 209.9 may be exercised in the following circumstances:

  • (a) an officer or the Minister of Human Resources and Skills Development has a reason to suspect that the employer is not complying or has not complied with any of the conditions set out in section 209.2 or 209.3;

  • (b) the employer has not complied with the conditions set out in section 209.2 or 209.3 in the past; or

  • (c) the employer is chosen as part of a random verification of compliance with the conditions set out in sections 209.2 and 209.3.

Answering questions and providing documents

209.6 (1) If any of the circumstances set out in section 209.5 exists,

  • (a) an officer may, for the purpose of verifying compliance with the conditions set out in section 209.2, require an employer to report at any specified time and place in order to answer questions and provide documents that relate to compliance with those conditions; and

  • (b) the Minister of Human Resources and Skills Development may, for the purpose of verifying compliance with the conditions set out in section 209.3, require an employer to report at any specified time and place in order to answer questions and provide documents that relate to compliance with those conditions.

Minister of Human Resources and Skills Development

(2) The Minister of Human Resources and Skills Development may exercise the powers set out in paragraph (1)(a) on the request of an officer.

Examination of documents

209.7 (1) If any of the circumstances set out in section 209.5 exists,

  • (a) an officer may, for the purpose of verifying compliance with the conditions set out in section 209.2, require an employer to provide them with any document that relates to compliance with those conditions; and

  • (b) the Minister of Human Resources and Skills Development may, for the purpose of verifying compliance with the conditions set out in section 209.3, require an employer to provide them with any document that relates to compliance with those conditions.

Minister of Human Resources and Skills Development

(2) The Minister of Human Resources and Skills Development may exercise the powers set out in paragraph (1)(a) on the request of an officer.

Entry to verify compliance with section 209.2

209.8 (1) If any of the circumstances set out in section 209.5 exists, an officer may, for the purpose of verifying compliance with the conditions set out in section 209.2, enter and inspect any premises or place in which a foreign national referred to in that section performs work.

Powers on entry

(2) The officer may, for that same purpose,

  • (a) ask the employer and any person employed by the employer any relevant questions;

  • (b) require from the employer, for examination, any documents found in the premises or place;

  • (c) use copying equipment in the premises or place, or require the employer to make copies of documents, and remove the copies for examination or, if it is not possible to make copies in the premises or place, remove the documents in order to make copies;

  • (d) take photographs and make video or audio recordings;

  • (e) examine any thing in the premises or place;

  • (f) require the employer to use any computer or other electronic device in the premises or place in order to allow the officer to examine any relevant document contained in or available to it; and

  • (g) be accompanied or assisted in the premises or place by any person required by the officer.

Entering private property

(3) An officer, while exercising their powers and performing their duties, and any person accompanying the officer, may enter on or pass through private property and is not liable for doing so. Unless the property is a dwelling-house, no person has a right to object to that use of the property and no warrant is required to enter on or pass through the property.

Person accompanying officer

(4) A person may, at an officer’s request, accompany the officer to assist them to access the premises or place referred to in subsection (1) and is not liable for doing so.

Dwelling-house

(5) In the case of a dwelling-house, an officer may enter it without the occupant’s consent only under the authority of a warrant issued under subsection (6).

Issuance of warrant

(6) On ex parte application, a justice of the peace may issue a warrant authorizing an officer who is named in it or the Minister of Human Resources and Skills Development, as the case may be, to enter a dwelling-house, subject to any conditions specified in the warrant, if the justice of the peace is satisfied by information on oath that

  • (a) there are reasonable grounds to believe that the dwelling-house is a premises or place referred to in subsection (1);

  • (b) entry into the dwelling-house is necessary to verify compliance with the conditions set out in section 209.2; and

  • (c) entry was refused by the occupant or there are reasonable grounds to believe that entry will be refused or that consent to entry cannot be obtained from the occupant.

Minister of Human Resources and Skills Development

(7) The Minister of Human Resources and Skills Development may exercise the powers set out in this section on the request of an officer.

Entry to verify compliance with section 209.3

209.9 (1) If any of the circumstances set out in section 209.5 exists, the Minister of Human Resources and Skills Development may, for the purpose of verifying compliance with the conditions set out in section 209.3, enter and inspect any premises or place in which a foreign national referred to in that section performs work and any premises or place that the employer has provided to the foreign national as accommodations.

Powers on entry

(2) The Minister of Human Resources and Skills Development may, for that same purpose,

  • (a) ask the employer and any person employed by the employer any relevant questions;

  • (b) require from the employer, for examination, any documents found in the premises or place;

  • (c) use copying equipment in the premises or place, or require the employer to make copies of documents, and remove the copies for examination or, if it is not possible to make copies in the premises or place, remove the documents in order to make copies;

  • (d) take photographs and make video or audio recordings;

  • (e) examine any thing in the premises or place;

  • (f) require the employer to use any computer or other electronic device in the premises or place in order to allow that Minister to examine any relevant document contained in or available to it; and

  • (g) be accompanied or assisted in the premises or place by any person required by that Minister.

Entering private property

(3) The Minister of Human Resources and Skills Development, while exercising his or her powers and performing his or her duties, and any person accompanying him or her, may enter on or pass through private property and is not liable for doing so. Unless the property is a dwelling-house, no person has a right to object to that use of the property and no warrant is required to enter on or pass through the property.

Person accompanying Minister of Human Resources and Skills Development

(4) A person may, at the Minister of Human Resources and Skills Development’s request, accompany that Minister to assist him or her to access the premises or place referred to in subsection (1) and is not liable for doing so.

Dwelling-house

(5) In the case of a dwelling-house, the Minister of Human Resources and Skills Development may enter it without the occupant’s consent only under the authority of a warrant issued under subsection (6).

Issuance of warrant

(6) On ex parte application, a justice of the peace may issue a warrant authorizing the Minister of Human Resources and Skills Development to enter a dwelling-house, subject to any conditions specified in the warrant, if the justice of the peace is satisfied by information on oath that

  • (a) there are reasonable grounds to believe that the dwelling-house is a premises or place referred to in subsection (1);

  • (b) entry into the dwelling-house is necessary to verify compliance with the conditions set out in section 209.3; and

  • (c) entry was refused by the occupant or there are reasonable grounds to believe that entry will be refused or that consent to entry cannot be obtained from the occupant.

Non-compliance with section 209.2 or 209.4 conditions

209.91 (1) If an officer determines, on the basis of information obtained by an officer or the Minister of Human Resources and Skills Development during the exercise of the powers set out in sections 209.6 to 209.8 and any other relevant information, that an employer did not comply with any of the conditions set out in section 209.2 or 209.4 and that the failure to do so was not justified, the Department must notify the employer of that determination and must add the employer’s name and address to the list referred to in subsection (3).

Non-compliance with section 209.3 or 209.4 conditions

(2) If the Minister of Human Resources and Skills Development determines, on the basis of information obtained during the exercise of the powers set out in sections 209.6, 209.7 and 209.9 and any other relevant information, that an employer did not comply with any of the conditions set out in section 209.3 or 209.4 and that the failure to do so was not justified, that Minister must notify the employer of that determination and must add the employer’s name and address to the list referred to in subsection (3).

List of employers

(3) A list is to be posted on the Department’s web site that sets out the name and address of each employer referred to in subsections (1) and (2) and 203(5) and the date on which the determination was made in respect of the employer.

DIVISION 5

DISCLOSURE OF INFORMATION

Disclosure of information

209.92 An officer may, for the purposes of determining whether a work permit should be issued to a foreign national under subsection 200(1), of making a determination under paragraphs 203(1)(a) to (e), if applicable, or of verifying compliance with the conditions set out in sections 209.2 to 209.4, disclose to the Minister of Human Resources and Skills Development and to the competent authorities of the provinces concerned information that relates to an application for a work permit or to an employer’s compliance with the conditions set out in sections 209.2 to 209.4.

COMING INTO FORCE

7. These Regulations come into force on the day on which they are registered.

[23-1-o]

  • Footnote 1
    The Government of Canada’s National Action Plan to Combat Human Trafficking is available at www.publicsafety.gc.ca/prg/le/cmbt-trffkng-eng.aspx.
  • Footnote 2
    The RCMP Threat Assessment is available at www.rcmp-grc.gc.ca/pubs/ht-tp/htta-tpem-eng.htm.
  • Footnote 3
    SOR/2002-227
  • Footnote a
    S.C. 2012, c. 19, s. 701
  • Footnote b
    S.C. 2012, c. 31, s. 309
  • Footnote c
    S.C. 2012, c. 19, s. 705
  • Footnote d
    S.C. 2011, c. 8, s. 4
  • Footnote e
    S.C. 2001, c. 27