The federal government has made significant changes to
Canada's Temporary Foreign Worker Program (TFWP) during the
past year, and additional changes are on the horizon. Critics of
the TFWP allege that employers have used this program to reject or
even displace qualified Canadian workers in favour of lower-paid
foreign nationals. In an effort to respond to such criticism, the
government has imposed strict new requirements on employers using
TFWP, with potentially heavy penalties for non-compliance.
In December 2013, the federal government imposed new
requirements for TFWP employers. Employers who hire foreign workers
must now retain all documents relevant to their TFWP compliance for
a period of six years after a work permit is issued to a foreign
worker. During this period, employers must also be able to
demonstrate that the information provided in these documents was
accurate. Furthermore, employers must make reasonable efforts to
hire or train Canadian citizens or permanent residents before
turning to the TFWP.
The new regulations authorize the Ministry of Employment and
Social Development Canada (EDSC) to conduct warrantless inspections
of TFWP employers. The EDSC may conduct such an inspection if there
is "reason to suspect" that an employer is not in
compliance with the requirements of the TFWP. The EDSC may conduct
an inspection up to six years after a work permit was issued to a
foreign worker, and may interview the foreign worker(s) as well as
other employees during an inspection. If an inspector concludes
that the employer
is not in compliance with the TFWP, the employer may be publicly
"blacklisted" and deemed ineligible to hire foreign
Further revisions of the TFWP requirements and penalties for
non-compliance are forthcoming.
On March 28, 2014, Bill C-31, an omnibus budget implementation
bill entitled Economic Action Plan 2014 Act, No. 1, was tabled in
the House of Commons. Should this Bill become law, it will
authorize the Ministers of Employment and Social Development and
for Multiculturalism to impose administrative monetary penalties
for "abuses" of the TFWP. The "abuses" targeted
by these penalties are not yet specified, nor are the amounts of
the respective penalties. However, the federal government has
stated that contraventions likely to attract a fine in the future
include (but are not limited to):
Hiring a foreign worker rather than a qualified and available
Canadian citizen or permanent resident;
Paying a foreign worker less than the prevailing wages for the
occupation and region;
Making false or misleading statements on a Labour Market
Opinion (LMO) application.
The speed and complexity of the federal government's
revisions to the TFWP raises concern that employers may face heavy
penalties for inadvertent non-compliance. It is likely that
substantial new fines for contraventions that are as yet
unspecified will be enacted within the year. Indeed, on April 24,
2014, the government placed an immediate moratorium on the Food
Services Sector's access to the TFWP after it was made aware of
serious allegations of abuse. It is clear that employers who are
found to have violated the rules may face potential criminal
prosecution including fines and jail time. Employers are well
advised to monitor the forthcoming changes closely and minimize
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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