The Background

Ever since the ‘Royal Bank Scandal’ in 2013, the Canadian immigration system continues to implement further guidelines, restrictions, requirements and constraints for employers hiring and employing foreign workers. Many of the changes are with regard to ‘Labour Market Impact Assessments’ (LMIAs, formerly LMOs), under the jurisdiction of Employment and Social Development Canada (ESDC), but they all ultimately impact the ability to recruit and retain foreign workers.

Previous Changes to the System

Among other measures implemented to date, the test for recruitment requirements has been tightened, and the tests have been altered (from an occupational level division, to a wage based division); application fees have been raised from $275 per position to $1000 per position; caps have been placed on the number of foreign workers that can be brought to Canada in certain categories; foreign employers are restricted from hiring certain foreign workers in areas where the unemployment rate is six percent (6%) or higher; and the list goes on.

What’s Changing Now

With the volume of changes brought about (not to mention the numerous changes made previously in 2013 and 2014), it seemed that at least the dust was finally settling when the latest round of changes were announced in June 2014. Apparently, there’s still plenty of dust.

The government announced last week that it was considering yet further measures. Though these are still not finalized, the following are just some of the upcoming changes that employers can expect to face soon in their desire to hire and retain foreign workers:

  • Bans on employers for non-compliance, currently fixed at 2 years across the board, will now be varied and could range from 1 year to 10 years.
  • Monetary penalties will now be imposed on violations. The monetary penalties will vary based on various factors including the nature of the violation, the severity, and the size of the employer. Penalties can range up to $100,000 per occurrence.
  • Any violation of conditions under the program could lead to a ban or monetary penalty. Beyond items like meeting wages and working conditions approved, these would now include:
    • A determination with regard to the genuineness of the job offer
    • Deficiencies in reporting and document retention, and
    • A determination of non-cooperativeness during inspections.

Among other concerns in this regard, the degree of subjectivity, and therefore the government’s discretion, in such determinations plays a much greater role, notwithstanding a proposed review process which is to be made available.

  • Corrective action for ‘good faith’ errors, previously allowed, may no longer excuse the imposition of one of the permitted sanctions (bans and/or monetary penalties)

What Employers Need to Know and Do

Expect these proposals to be implemented, and implemented soon. The government is accepting submissions until only October 16, after which the proposals will be implemented, with or without any modification. Employers who wish to make submissions to the government before the deadline are encouraged to do so, but in any event, employers should make themselves aware of the full gambit of requirements under the proposed scheme, and commence action forthwith to ensure that they are both in current compliance, and that they have systems in place to ensure ongoing compliance.

The information in this article is for general purposes only, and not intended as legal advice for any particular situation.