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SOR/2013-245 December 13, 2013

IMMIGRATION AND REFUGEE PROTECTION ACT

Regulations Amending the Immigration and Refugee Protection Regulations

P.C. 2013-1400 December 12, 2013

Whereas, pursuant to subsection 5(2) (see footnote a) of the Immigration and Refugee Protection Act (see footnote b), the Minister of Citizenship and Immigration has caused a copy of the proposed Regulations Amending the Immigration and Refugee Protection Regulations, substantially in the annexed form, to be laid before each House of Parliament;

Therefore, His Excellency the Governor General in Council, on the recommendation of the Minister of Citizenship and Immigration, pursuant to subsections 4(2.1) (see footnote c) and 5(1) and sections 14 (see footnote d), 32 (see footnote e) and 150.1 (see footnote f) of the Immigration and Refugee Protection Act (see footnote g), makes the annexed Regulations Amending the Immigration and Refugee Protection Regulations.

REGULATIONS AMENDING THE IMMIGRATION AND REFUGEE PROTECTION REGULATIONS

AMENDMENTS

1. Subsection 82(1) of the Immigration and Refugee Protection Regulations (see footnote 1) is replaced by the following:

Definition of “arranged employment”

82. (1) In this section, “arranged employment” means an offer of employment, in an occupation listed in Skill Type 0 Management Occupations or Skill Level A or B of the National Occupational Classification matrix, that is made by an employer 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, for full-time work in Canada that is non-seasonal and indeterminate.

2. (1) Clause 87.2(3)(d)(ii)(C) of the Regulations 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 them 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 subject to the visa being issued to them, and

3. 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 striptease, 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

4. 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 striptease, 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.

5. (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 before 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 striptease, 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) Paragraph 200(5)(a) of the Regulations is replaced by the following:

  • (a) whether the offer is made by an employer that is actively engaged in the business in respect of which the offer is made, unless the offer is made for employment as a live-in caregiver;

(6) Paragraph 200(5)(b) of the French version of the Regulations is replaced by the following:

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

6. (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 Department of Human Resources and Skills Development, of any information provided on the officer’s request by the employer making the offer and of 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 Department 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 Department 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 striptease, 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:

Basis of opinion

(2.1) The opinion provided by the Department 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 subparagraph (1)(e)(i) ends on the day on which the request for the opinion is received by that Department.

(10) 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;

(11) 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;

(12) Paragraph 203(3)(e) of the Regulations is replaced by the following:

  • (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;

(13) Subsection 203(3) of the Regulations is amended by adding “and” at the end of paragraph (f) and by adding the following after paragraph (f):

  • (g) whether the employer has fulfilled or has made reasonable efforts to fulfill any commitments made, in the context of any opinion that was previously provided under subsection (2), with respect to the matters referred to in paragraphs (a), (b) and (e).

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

Failure to satisfy criteria

(5) If an officer determines 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).

7. 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.

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 must be actively engaged in the business in respect of which the offer of employment was made, unless the offer was made for employment as a live-in caregiver,
    • (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, and
    • (iv) the employer must make reasonable efforts to provide a workplace that is free of abuse, within the meaning of paragraph 72.1(7)(a); and
  • (b) during a period of six years beginning on the first day of the period of employment for which the work permit is issued to the foreign national, 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).

Period of employment

(2) For the purposes of subsection (1), the period of employment for which the work permit is issued includes any period during which the foreign national may, under paragraph 186(u), work in Canada without a permit after the expiry of their work permit.

Justification

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

Justification

(4) 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.

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 must be actively engaged in the business in respect of which the offer of employment was made, unless the offer was made for employment as a live-in caregiver,
    • (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, and
    • (v) the employer must make reasonable efforts to provide a workplace that is free of abuse, within the meaning of paragraph 72.1(7)(a);
  • (b) during the period of employment for which the work permit is issued to the foreign national or any other period that was agreed on by the employer and the Department 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 a period of six years beginning on the first day of the period of employment for which the work permit is issued to the foreign national, 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).

Period of employment

(2) For the purposes of subsection (1), the period of employment for which the work permit is issued includes any period during which the foreign national may, under paragraph 186(u), work in Canada without a permit after the expiry of their work permit.

Justification

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

Justification

(4) 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.

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 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 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 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 him or her 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) Subject to subsection (5), 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 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 to make copies;
  • (d) take photographs and make video or audio recordings;
  • (e) examine anything in the premises or place;
  • (f) require the employer to use any computer or other electronic device in the premises or place 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 and any person accompanying the officer may enter on and pass through private property, other than a dwelling-house, to gain entry to a premises or place referred to in subsection (1). For greater certainty, they are not liable for doing so.

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) Subject to subsection (5), 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 accommodation.

Powers on entry

(2) The Minister of Human Resources and Skills Development may, for that 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 to make copies;
  • (d) take photographs and make video or audio recordings;
  • (e) examine anything in the premises or place;
  • (f) require the employer to use any computer or other electronic device in the premises or place 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 and any person accompanying him or her may enter on and pass through private property, other than a dwelling-house, to gain entry to a premises or place referred to in subsection (1). For greater certainty, they are not liable for doing so.

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.

Noncompliance 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).

Noncompliance 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 is to 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

8. These Regulations come into force on December 31, 2013.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Background

Temporary Foreign Worker Program overview

The Temporary Foreign Worker Program (TFWP) allows employers to hire foreign workers as a last resort to meet their short-term labour and skills needs when qualified Canadian citizens or permanent residents are not available, while respecting international trade agreements and other partnerships. 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; there are, for example, LMO exemptions relating to the North American Free Trade Agreement. Through an LMO, HRSDC provides an assessment of whether the employment of a foreign national is likely to have a 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 generally obtain a work permit from CIC whether or not their intended occupation requires an LMO.

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 a series of measures to ensure that Canadians are given the first chance at available jobs. This commitment was reaffirmed in the Speech from the Throne on October 16, 2013.

Past improvements to program efficiency and integrity

On June 29, 2012, the Government introduced changes to the IRPA through the Jobs, Growth, and Long-term Prosperity Act to enhance the capacity of CIC and HRSDC to verify employer compliance. Subsequently, on June 19, 2013, additional legislative changes to IRPA were introduced through the Faster Removal of Foreign Criminals Act that further enhance and expand this capacity. The IRPA amendments authorize the Governor in Council to make regulations respecting the conditions that may or must be imposed on employers and others in relation to foreign nationals, the power to inspect for the purpose of verifying compliance with these conditions, and the consequences of noncompliance with these conditions. These new authorities are the main basis for the present regulatory amendments focusing on verification of employer compliance with conditions imposed as part of the TFWP. These amendments build on amendments made in 2011 that provided a more rigorous LMO and work permit 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 were not substantially the same as those in the original job offer. These changes aimed to better protect the Canadian labour market and reduce the potential of TFW exploitation by employers.

Reforms to ensure Canadians have first chance at available jobs

On April 29, 2013, the Government announced a suite of reforms to the TFWP aimed at ensuring that Canadian citizens and permanent residents have the first chance at available jobs. Statutory, regulatory, and administrative changes have since been introduced to

  • require employers to pay temporary foreign workers at the prevailing wage by removing the existing wage flexibility;
  • suspend the Accelerated Labour Market Opinion process;
  • increase the Government’s authority to suspend, revoke and refuse to process LMOs and to revoke work permits;
  • ensure that the TFWP is not used to facilitate the outsourcing of Canadian jobs;
  • ensure employers who rely on temporary foreign workers have a firm plan in place to transition to a Canadian workforce over time through the LMO process;
  • introduce fees for employers for the processing of LMOs so that taxpayers are no longer subsidizing the costs; and
  • identify English and French as the only languages that can be used as a job requirement on an LMO application (with some specified exceptions).
Protecting foreign workers from the risk of abuse and exploitation

These amendments explicitly prevent employers from employing TFWs in businesses that offer, on a regular basis, striptease, erotic dance, escort services or erotic massages. Abuse in these areas has been a long-standing concern of the Government of Canada.

To protect foreign workers from the risk of such abuse, exploitation, and trafficking, the minister responsible for HRSDC announced measures in July 2012 directing HRSDC officers to issue negative LMOs for all applications from employers operating strip clubs, escort services or massage parlours. Additionally, the minister responsible for CIC instructed officers not to process new work permit applications from foreign nationals 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. These amendments formalize those ministerial directions that have already been implemented.

Issues and objectives

Although HRSDC and CIC currently have the authority to assess whether employers provided previously employed foreign nationals with substantially the same wages, working conditions and occupations as outlined in their job offers, there are significant limitations. HRSDC and CIC can only assess 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 or a TFW applies for a work permit, HRSDC and CIC cannot address complaints against employers in a timely manner or verify whether employers comply with the Regulations after TFWs are employed.

Verifying employer compliance during the LMO application process plays an important role in identifying non-compliance. The first priority is to ensure that employers have exhausted every effort to hire Canadians or permanent residents. But observed noncompliance also 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. In cases where there is an initial finding of non-compliance, employers are able to take corrective action, for example to pay back wages owed to a TFW. Once corrective action is taken, the employer is no longer in non-compliance.

In cases where employers do not take corrective action as provided for in the Regulations and receive a final finding of noncompliance, the current authority to impose consequences is limited. For example, if an employer is found to be non-compliant by HRSDC, CIC is only able to ban that employer from accessing the TFWP when there is an application for a work permit by a foreign national, based on a negative LMO, to work for the employer. In these cases, 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, so it is very unlikely that CIC will be able to place an employer on the ineligibility list.

To address these issues, these 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, including physical, sexual, psychological, and financial abuse.

1. Protecting the integrity of the Canadian labour market

The regulatory amendments, which strengthen CIC’s and HRSDC’s authority to verify employer compliance with the TFWP requirements, 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.

In particular, these regulatory amendments will help to protect the integrity of the Canadian labour market by introducing an effective compliance verification regime to ensure that employers continue to meet TFWP requirements after TFWs are employed. With the amendments, inspections of employers could be conducted from the first day of employment of the TFW for which the work permit is issued up to a maximum of six years from this day. Employers who are found to be non-compliant with any of the conditions set out in the IRPR without adequate justification will be placed on a public ineligibility list and will become ineligible to access the TFWP for two years.

2. Protecting Temporary Foreign Workers

The Government of Canada is committed to protecting TFWs. On June 6, 2012, HRSDC and CIC put forward measures to improve protection for vulnerable TFWs as part of the National Action Plan to Combat Human Trafficking. (see footnote 2) Human trafficking is a complex issue with a diverse range of victims and circumstances. Women and children are the primary victims — overwhelmingly so for sexual exploitation, but also for forced labour — but men are not immune to this crime. According to a 2010 RCMP report, (see footnote 3) 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 regulatory amendments will improve protection for TFWs and address concerns related to exploitation.

These regulatory amendments also 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. Additionally, TFWs may directly benefit from timely corrective action by the employer, such as paying wages owed to the TFW.

Description

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

Changes to the factors for assessing work permit and LMO applications

The regulatory amendments

  • Extend the period in respect of which HRSDC and CIC may verify the wages, working conditions and occupation provided to previously employed TFWs at the time of a new LMO or work permit application from two years to six years. This means that employers are required to demonstrate that they have complied with the terms set out in previously issued LMOs, and in relation to job offers made in the context of previous work permit applications, for any TFWs employed during the six-year period prior to a new application being submitted;
  • 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;
  • Change the existing assessment of the employer’s compliance with previous offers of employment into an assessment of whether the employer provided each TFW 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 certain provisions [e.g. clarify that a negative LMO may be issued after a review of a returning employer’s past efforts to fulfill commitments agreed to under previous LMOs and specifically relating to labour market factors at paragraphs 203(3)(a), (b), and (e)];
  • 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 [i.e. by removing the wording in paragraph 200(3)(c) that states that the provision does not apply if all or almost all of the workers involved in the labour dispute are not Canadian citizens or permanent residents and that the hiring of workers to replace the workers involved in the labour dispute is not prohibited by the applicable Canadian law]; and
  • Formalize that HRSDC will not process LMO applications from employers in businesses that offer, on a regular basis, striptease, erotic dance, escort services or erotic massages and that CIC will not issue work permits to foreign nationals destined to work for these employers.
Conditions imposed on all foreign nationals

These amendments formalize the prohibition on foreign nationals’ entering into an employment agreement, or extending the term of an employment agreement, with an employer that offers, on a regular basis, striptease, erotic dance, escort services or erotic massages. These changes apply to all foreign nationals, including holders of open work permits and international students. Foreign nationals who do not comply with this condition are subject to consequences for non-compliance.

Conditions imposed on employers

Employers who are issued a positive LMO are required to comply with certain 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 LMO was provided. Employers also have to be able to demonstrate, should an inspection be triggered, 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. The specific conditions are

  • 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 hire or train, or make reasonable efforts to hire or train, Canadian citizens or permanent residents; 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 child care, senior home support care or care of a disabled person in that household without supervision;
    • 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 amendments include the following conditions imposed on employers who hire TFWs, whether an LMO is required or not. Employers have to be able to demonstrate, should an inspection be triggered, that they are meeting or that they have met these conditions during the period of employment for which the work permit was issued:

  • The employer must be actively engaged in the business in respect of which the offer of employment was made, unless the offer was made for employment as a live-in caregiver;
  • 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 each 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 (see footnote 4) to provide a workplace 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;
  • During the period of six years beginning on the first day of the period of employment for which the work permit is issued, the employer must be able to demonstrate that any information that they provided in relation to an LMO and/or a work permit application was accurate, and retain any document that relates to compliance with the imposed conditions.
CIC and HRSDC inspection authorities

The regulatory amendments provide CIC officers and the Minister responsible for HRSDC, or his delegates, the authority to conduct inspections in order to verify compliance with the conditions described above.

The inspection authority allows 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 complied with the conditions imposed on them during the relevant period. For example, in relation to the existing “genuineness” factors, (see footnote 5) employers may be asked to demonstrate that, during the period of employment of the TFW, they were actively engaged in the business in respect of which the offer of employment was made, and were 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 provided the TFW with employment in the same occupation as that set out in the offer of employment and with wages and working conditions that were substantially the same as, but not less favourable than, those in the offer.

Under the amendments, CIC officers and the minister responsible for HRSDC, or his delegates, 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.

CIC officers and the minister responsible for HRSDC, or his delegates, 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 his or her delegates, will be allowed to enter without the occupant’s consent only under the authority of a warrant. This is consistent with other federal authorities, such as those under the Employment Insurance Program and the Canada Labour Code, which allow program officers, while performing their duties, to enter on or pass through private property to ensure safe and healthy working conditions for Canadians.

In conducting an on-site visit as part of the inspection, a CIC officer or the minister responsible for HRSDC, or his 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 document (originals or copies) that relates to compliance with the conditions; and request their assistance in making copies if necessary.

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

CIC officers and the minister responsible for HRSDC, or his delegates, have the authority to conduct an inspection, if triggered, during the employment of the TFW and up to six years after the first day of that employment, even if the TFW is no longer employed by that employer.

Triggers for an inspection

Under the regulatory amendments, an inspection may be triggered if

  • a CIC officer or the minister responsible for HRSDC, or his or her delegates, 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

Employers are required to retain documents that relate to their compliance with the conditions during a six-year period commencing on the first day of the period of employment for which a work permit is issued. This six-year period was chosen to align with the Canada Revenue Agency’s document-retention period for tax-related documents while also providing a sufficient period of time in which inspections can be conducted after the end of the period of employment.

Employers selected for an inspection also have to report to any specified place at any specified time to present documents and to answer questions related to their compliance with the conditions. This requirement includes being interviewed over the phone; providing any relevant documents requested by a CIC officer or the Minister responsible for HRSDC, or his 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

Employers who fail to comply with the conditions imposed on them will have the opportunity to provide a justification for their non-compliance, where applicable. Specifically, force majeure (e.g. natural disasters or fires) is added as a further possible justification for failure to comply with certain conditions.

Employer non-compliance

Employers are non-compliant if they fail to comply, without adequate justification, with the conditions imposed on them for the periods of time specified in the amendments (e.g. for a six-year period commencing on the first day of employment of a TFW).

In such a case, the employer will be denied access to the TFWP for two years and the employer’s name and address will be immediately added to an ineligibility list posted on CIC’s Web site.

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

Information sharing

Existing legislative provisions allow for the disclosure of information from HRSDC to CIC for the purposes of administering IRPA. The regulatory amendments introduce information sharing provisions authorizing the 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 work permit determinations and to verify employers’ compliance with conditions and, as applicable, for the purpose of informing the assessment of an LMO.

The new provision also authorizes the disclosure of information from CIC to the competent authorities of the provinces and territories in relation to the same matters as above. Also as above, this information may be disclosed for the purpose of informing work permit determinations, informing the LMO assessment process (if applicable), and verifying 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 will need to contact responsible provincial ministries to verify the employer’s compliance with provincial and territorial laws, and will 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 conducted consultations with representatives from national and regional employer, labour and other stakeholder organizations. These consultations were 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.

Comments received during prepublication in the Canada Gazette, Part I

The proposed regulatory amendments were published on June 8, 2013, in the Canada Gazette, Part I, for a 15-day comment period. A total of 26 comments were received from stakeholders representing businesses (e.g. Canadian Federation of Independent Business), lawyers and legal associations (e.g. Canadian Bar Association), labour groups (e.g. Canadian Labour Congress), and two provinces.

Careful review and consideration were given to the official submissions received from external stakeholders during the comment period. The departments also took into consideration feedback received shortly after the 15-day comment period ended. Some of the comments received were outside the scope of these regulatory amendments and are therefore not addressed in this Regulatory Impact Analysis Statement (RIAS).

Inspection authorities

Of the comments related to these regulatory amendments, the majority dealt with the provisions related to inspection authorities. Most frequently, stakeholders expressed concerns that the authorities were too broad in allowing CIC officers or the Minister of HRSDC, or his delegates, to enter a business without a warrant, to be accompanied by any person, to examine any document, or to interview any person.

The inspection authorities are provided in these regulatory amendments. They are similar to those found in other federal authorities, such as the Employment Insurance Act and the Canada Labour Code, which authorize inspectors to enter businesses without a warrant to verify compliance. Under the IRPR, officers cannot enter a dwelling-house without the occupant’s consent unless they have obtained a warrant, and the regulatory text has been amended to make that more clear. The Regulations also specify that an inspection may be carried out only for the purposes of verifying compliance with the conditions imposed on the employer of a TFW. It has also been clarified in the final regulatory text that officers may enter and pass through private property only if their purpose is to gain access to the premises or place in order to verify compliance. In most cases, employers will be given 48 hours’ notice of an inspection, unless such notice would compromise the inspection.

Compliance verification period

Some stakeholders felt that the proposed requirement to retain records during the period of employment and for 6 years thereafter was too long and would impose undue costs on employers. Upon review, it was noted by HRSDC and CIC that due to varying employment periods, employers could, in some rare cases, be required to retain documents for 10 years or more. Other commenters requested clarification of these timelines.

To address these concerns, the period of time for which documents must be retained has been amended to the period beginning on the first day of the employment for which the work permit is issued and ending six years after that day. This means that after the six-year period is finished, employers will no longer be required to demonstrate compliance or retain documents in relation to that period of employment. The six-year period also aligns with Canada Revenue Agency document-retention requirements.

Criminal convictions

As a result of the Government’s final review of the proposed amendments, it was determined that the condition that employers must not be convicted or discharged of certain offences under the Criminal Code was too rigid and cumbersome in the proposed form. These provisions have been removed from the final regulatory text. Instead, the amendments introduce other measures that achieve the objective of ensuring a safe workplace for TFWs and that allow for a more timely ability to deal with abuse. Accordingly, the amendments include a condition on employers to make reasonable efforts to provide a workplace free of abuse, including physical, sexual, psychological, and financial abuse.

Clarifying provision

A provision has been added to subsection 203(3) of the Regulations to clarify that a negative LMO may be issued if an employer has not fulfilled, or has not made reasonable efforts to fulfill, any commitments made, in the context of previous LMOs provided, with respect to paragraphs 203(3)(a), (b), and (e). For example, if an employer committed to a plan to transition to a Canadian work force as part of a previous LMO, the employer’s progress on that plan could be reviewed as part of an assessment of a subsequent LMO request. This change was made following feedback from internal and external stakeholders to ensure that the requirements on employers are explicit and clear.

Estimation of administrative costs

Five stakeholders commented that the estimation of administrative burden costs seemed too low. HRSDC contacted these stakeholders to seek further input and increased the estimated costs as a result. These consultations are described in greater detail in the section on the “One-for-One” Rule below.

Other comments

Business stakeholders urged the Government to enact measures to ensure timely access to TFWs when needed, for example by providing faster processing of LMO requests to employers with good compliance records. Employer groups also requested clarification of certain terms and provisions, including the triggers for an inspection. Finally, it was suggested that the TFWP consider an appeals process in cases where a negative LMO is issued.

The Government is committed to facilitating employer access to TFWs when they face genuine labour or skills shortages and when Canadians and permanent residents have had first chance at available jobs. HRSDC and CIC are working to develop clear policies and guidance materials so that recent changes are well understood by all stakeholders. At any time during the LMO application process, employers have the opportunity to submit new information that may affect the LMO and the application is re-assessed, taking into account any relevant new information.

“One-for-One” Rule

The “One-for-One” Rule applies, and the regulatory amendments constitute an “IN” under the Rule as they increase the administrative burden on business. Administrative burden activities include retrieving and submitting documents to comply with an inspection, as well as time to attend on-site inspections and assist officers during the inspection. The total annualized average increase in administrative burden has been calculated at $214,732. This amounts to $12 per business averaged over the 18 322 employers of TFWs that are eligible for a possible inspection each year.

For the purposes of the “One-for-One” Rule, employers of live-in caregivers are excluded as these employers are not businesses and are not within the scope of the Rule. Inspections will be conducted on LCP employers, but the resulting administrative burden is not part of these calculations.

Consultation on estimates of administrative burden

During prepublication, five stakeholders commented that the estimates of administrative costs seemed too low. HRSDC officials contacted each of these stakeholders to seek additional input for the calculations of administrative burden. It was explained that the scope of the “One-for-One” Rule is relatively narrow (e.g. costs to store documents are not included), and no stakeholders provided any further information to contribute to the estimates of administrative costs.

In addition, HRSDC contacted two employers that have recently undergone a review of compliance as part of an LMO application. These employers reported an average of 1.6 hours per TFW reviewed to retrieve documents and submit them to government, confirming that the original estimate of 1.5 hours per TFW reviewed is reliable.

The two employers also estimated how much it would cost their business to attend, or designate someone to attend, an on-site inspection. Their estimate of approximately $200 was higher than the initial estimate of $129 for this task. As a result, the estimate of the cost to business to attend an on-site inspection was increased to $194 (based on 3 hours of management time to attend the inspection and 1.5 hours to prepare).

Assessments at the time of LMO applications or work permit applications

In the course of reviewing an LMO request or a work permit application, HRSDC and CIC assess whether the employer provided previously employed TFWs with substantially the same wages, occupation and working conditions as on the job offer. Under the amendments, the same three elements will continue to be reviewed, but the review period is extended from two years to six years.

Although employers may be required to submit documents for the purposes of an assessment, the regulatory amendments will not increase the administrative burden on these employers. The extension of the review period will allow reviews to be conducted when a TFW was employed two or more years ago, rather than to review necessarily a full six-year period. Based on the average duration of a work permit of 18 months in 2012, most assessments would not require that an employer submit two years’ worth of documents. This is expected to stay the same. In the rare cases where an employer had employed TFWs consecutively for six years, a full six years of documents could be requested, but this is offset by the fact that many employers will only have employed a TFW for one year or less.

Inspections

Inspections, when triggered, will require the employer to retrieve, prepare, and submit documents, and possibly attend an on-site inspection to assist the inspecting officer. Inspections will 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 conditions during the period of employment of TFWs. Each inspection will review only a selection of over two dozen elements, with more or fewer elements being selected depending on risk, employer history, a specific complaint that may have been received, etc.

It is estimated that it would take administrative personnel 0.5 hours per element reviewed, on average, to retrieve, prepare, and submit the documents requested for an inspection. In addition, for those employers selected for an on-site visit, it is estimated that three hours of management time would be required to attend the inspection. These estimates have been validated through consultations with selected stakeholders and with Service Canada operational personnel who work with TFW employers. A further 1.5 hours of management time to prepare for the inspection has been added to the calculation as a result of consultations with stakeholders.

Not all employers of TFWs will undergo an inspection each year. The Regulations require that inspections be triggered, and so inspections may be conducted where there is reason to suspect possible non-compliance, where there has been non-compliance in the past, and on randomly selected employers. The planned rates of inspection cannot be publicly disclosed for program integrity reasons.

There is no change in administrative burden with respect to the regulatory amendments related to businesses that offer, on a regular basis, striptease, erotic dance, escort services, or erotic massages. As the entry of foreign nationals destined to work in these businesses has essentially been stopped as of July 4, 2012, the effect of the amendments on these businesses is expected to be null.

Small business lens

The small business lens does not apply to these amendments as the nation-wide costs are under $1,000,000 and there are no disproportionate impacts on small business. Small businesses are likely to employ fewer TFWs than larger businesses, meaning the costs related to the amendments will be proportionately lower. These costs are not expected to impact the financial viability of small businesses.

Rationale

The regulatory amendments are necessary to continue to protect the integrity of the Canadian labour market, including ensuring that Canadian citizens and permanent residents are given the first chance at available jobs and that TFWs that are in Canada are protected. The amendments enhance HRSDC and CIC’s authority to verify employer compliance, respond to complaints, and protect TFWs from abuse or exploitation in a timely, effective manner. These objectives are accomplished by amending the existing authorities to verify wages, occupation, and working conditions at the time of a work permit or LMO application and by creating new inspection authorities to verify employer compliance after TFWs are employed.

Assessments of the wages, occupation, and working conditions provided to previously employed TFWs are conducted at the time of an LMO or work permit application and verify that the employer has provided the same occupation and substantially the same wage and working conditions as in the offer of employment. Should this assessment result in a finding of non-compliance, a negative LMO is issued and the employer may be added to a list of employers ineligible to use the TFWP for a two-year period. Prior to these amendments, assessments of wages, occupation, and working conditions could cover TFWs employed in the two years prior to the LMO or work permit application. These amendments allow officers to review the employment of any TFW employed in the six years prior to the LMO or work permit application, improving HRSDC and CIC’s ability to protect TFWs and the integrity of the labour market.

HRSDC and CIC now have the authority to conduct inspections, when triggered, for six years commencing on the first day of employment of the TFW for which the work permit is issued. Inspections will 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 by the Regulations during the period of employment of TFWs or any other agreed period of time. Should an inspection result in a finding of non-compliance, the name and address of the employer will be added to a public list of employers ineligible to use the TFWP for a two-year period, unless the employer can provide an adequate justification.

The regulatory changes also strengthen HRSDC and CIC’s ability to prevent employers from employing foreign nationals in businesses that offer, on a regular basis, striptease, erotic dance, escort services or erotic massage. These 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 amendments help 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 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 regulatory amendments will come into force on December 31, 2013.

At the LMO or work permit application stage, the period subject to an assessment of the wages, occupation and working conditions offered to previously employed TFWs is the six-year period prior to the date of the application for a work permit or LMO.

CIC and HRSDC are now authorized to inspect 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. Employers are now required to retain documents related to compliance with the conditions for a period of six years beginning on the first day of the period of employment for which the work permit is issued.

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

Existing communications products will be updated to reflect the new authorities and the consequences of non-compliance as described above so that employers, TFWs, and the public can be well informed. This will include updates to the compliance section of the HRSDC TFWP Web site, a new Question and Answer section, and training to the Service Canada Employer Call Centre. In addition, guidelines will be posted on the HRSDC and CIC TFWP Web sites explaining in further detail how the new provisions will be implemented.

Contact

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

  • Footnote a
    S.C. 2008, c. 3, s. 2
  • Footnote b
    S.C. 2001, c. 27
  • Footnote c
    S.C. 2012, c. 19, s. 701
  • Footnote d
    S.C. 2013, c. 16, s. 4
  • Footnote e
    S.C. 2013, c. 16, s. 37
  • Footnote f
    S.C. 2012, c. 17, s. 47
  • Footnote g
    S.C. 2001, c. 27
  • Footnote 1
    SOR/2002-227
  • Footnote 2
    The Government of Canada’s National Action Plan to Combat Human Trafficking is available at www.publicsafety.gc.ca/cnt/rsrcs/pblctns/ntnl-ctn-pln-cmbt/index-eng.aspx.
  • Footnote 3
    The RCMP Threat Assessment is available at www.rcmp-grc.gc.ca/pubs/ht-tp/htta-tpem-eng.htm.
  • Footnote 4
    “Reasonable efforts” will be further described in guidelines that will be distributed to employers and posted on the TFWP Web sites.
  • Footnote 5
    See subsection 200(5) of the Immigration and Refugee Protection Regulations.