On June 20th, 2014, the Government of Canada
announced sweeping changes to the temporary foreign worker program,
much of which is effective immediately. The following is a brief
review of those changes.
The Labour Market Impact Assessment ("LMIA") replaces
the Labour Market Opinion ("LMO") and creates a more
comprehensive and rigorous process which comes with significantly
higher application fees (the LMIA fee is $1,000.00; the former LMO
fee was $275.00).
Employees will no longer be classified according to occupation,
but rather according to wages earned. The dividing line between
high-wage and low-wage earners will be based on the median wage in
the relevant province or territory. For reference, the median
hourly wage in British Columbia is currently $21.79.
LMIA processing will be expedited for positions that are either
in high demand, highly paid, or of short duration, and meet certain
criteria. In these cases, a LMIA will be provided within 10
A new Job Matching Service has been introduced. Employers
seeking an LMIA must advertise on the Job Bank, and Canadians will
be able to apply directly for posted jobs that match their skills
and experience. Processing officers will have access to Job Bank
statistics and, in order to obtain an LMIA, employers will need to
justify why Canadian applicants were not hired for posted
The temporary foreign worker program will be subject to
increased inspection and enforcement measures, such that
one in four employers using temporary foreign workers will
be inspected each year. Employment and Social Development
Canada can compel production of employment-related documents from
employers and, as of fall 2014, will be able to compel banks and
payroll companies to provide bank records and payroll documents,
respectively. Employers are now required to keep documents related
to LMIA applications, including recruitment documents such as
resumes, for six years.
Employers face increased penalties for non-compliance with the
program rules, including suspension or revocation of a LMIA,
program bans, public blacklisting, substantial fines up to
$100,000, and imprisonment. Violators of laws and standards in
place to protect employees may be branded as "high-risk
employers" and be subject to greater scrutiny. As a result, it
is vital that employers seeking to hire temporary foreign workers
become familiar with the new program rules and requirements.
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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