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In a recent decision with widespread implications for
Canada's business community, the Supreme Court of Canada has ruled that
administrative monetary penalties, or "AMPs," do not
violate constitutional rights because they are not criminal in
nature.
The case involved adviser penalties" found in the Income
Tax Act aimed at professional tax advisers, planners and preparers
– including lawyers and accountants. The ruling has broad
implications for Canadian employers accessing the foreign labour
market. Here is why.
Effective December 1, 2015, employers who violate the rules of
the Temporary Foreign Worker Program and the International Mobility
Program (which includes intra-company transfers and free-trade
agreement work permit categories), could face harsh penalties.
Under the Immigration and Refugee Protection Regulations, the
government now has a new arsenal of enforcement tools. Known as
Administrative Monetary Penalties, AMPs are a regulatory compliance
mechanism that allow for monetary penalties for incidences of
non-compliance. Canadian employers who are found to be in violation
of program terms and conditions could be subject to financial
penalties ranging from $500 to $100,000 per violation, and up to
maximum of $1 million in a one-year period. Violations will be
weighted using a point system and penalties will be levied under a
number of factors. In addition, the existing two-year ban from the
programs will be replaced with bans of various lengths –
including one, two, five and 10 years. Employers could face a
permanent ban for the most serious violations. Employers who are
banned will be published on the government web site.
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The content of this article reflects the personal insight of
Attorney Colin Singer and needs no disclaimer.
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