In the current economic climate, business immigration and global
mobility have become important factors in the Canadian economy.
More and more companies are using temporary foreign workers to
address labour shortages. In recent years, the number of temporary
foreign workers in Canada has continued to grow. According to
statistics published by Citizenship and Immigration Canada
("CIC") in October 2012, this number has increased from
about 100,000 in 1988 to over 350,000 in 2012.
Recently, the Canadian government has decided to tighten the
rules for employers who hire temporary foreign workers. As an
employer, it is important that you understand and respect your
obligations. Failure to do so could lead to serious consequences
for your company, its directors, and its officers.
Outlined below are several employer obligations as well as the
associated consequences of non-compliance.
Compliance with the terms of employment: When
hiring a temporary foreign worker, the employer sets out the terms
of employment. These must be respected in precisely the same manner
as they would for a Canadian employee. However, in cases of
temporary foreign workers, any changes to the terms of employment
– including an increase in salary or a change in the number
of hours worked – must be reported. In addition, officers may
even require the employer to provide evidence that the original
terms of employment have been respected in the course of the two
Hiring a foreign worker without the requisite
authorization: The Immigration and Refugee Protection
Act (S.C. 2001, c. 27) (the "Act") prohibits any
employer from hiring a foreign worker who does not possess the
requisite authorization to work in Canada. It also places the onus
on the employer to verify the status of every foreign worker that
it employs. In other words, should the employer fail to exercise
due diligence in determining whether employment is authorized, it
will be deemed to know that it is not authorized. Verifying the
status of any foreign worker before making an offer of employment
Misrepresentation: The Act prohibits any
person, including an employer, from communicating information -
either directly or indirectly - that is false or misleading or from
making any erroneous representation that could lead to the Act
being administered incorrectly. Therefore, it is important that any
statement, form, or document produced by an employer be accurate
and true, including but not limited to the offer of employment, a
form, or any communications exchanged with officers.
The consequences of any non-compliance on the part of the
employer could be significant. Initially, any request submitted
with respect to a TFW could be refused. In addition, the employer
may be prohibited from hiring additional temporary foreign workers
for a period of two years following the breach of their
obligations. The name of the employer can also be included on a
list of employers ineligible to hire foreign workers that is
published on CIC's website.
Depending on the nature of the breach, companies, directors, and
officers can also be sentenced to a fine of up to C$50,000 or
C$100,000 and imprisonment for a term of up to two or five
Prior to hiring a foreign worker, employers should ensure that
they are well informed of their rights and obligations. These
remain in effect both throughout the hiring process and after its
completion. The consequences of any breach could drastically affect
both you and your business.
This article was originally published in the November 2013
edition of InfoCPQ, a monthly newsletter intended for
members of the Conseil du patronat du Québec.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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