Canada: Immigration Corner

Last Updated: October 5 2006
Article by Naseem Malik

Most Read Contributor in Canada, September 2018

Hiring a foreign national to work in Canada without conducting proper due diligence checks in advance. What are the potential pitfalls? This article discusses why due diligence is important for Canadian employers and how failing to exercise caution can be costly for both employers and potential employees.

The ideal candidate?

Imagine the following scenario. You are responsible for hiring an important employee for your company. You and your team conduct numerous interviews, but cannot find a suitable person from the interview list. Then you take a call from someone who is interested in the position but did not meet the deadline to submit a resume. You encourage him to send in his resume , and are astounded to see that at least on paper he meets all of the necessary criteria that the position demands. Your team interviews him and are so impressed that you bring in your superiors to talk to the candidate. After the interview you convene with the rest of the people who met the person and everyone is in unanimous agreement that this person should be offered the position.

Upon closer review

You go back to your office to review the file and are about to call the candidate when you notice that his resume states that he has only been in Canada for two years. Suddenly you wonder if he is a Canadian Citizen or permanent resident. You call up the candidate to ask a few more questions before offering him the job. The candidate is evasive when asked what his status is in Canada and tells you that he has a Social Insurance Number and can lawfully work in Canada. You sensibly decide to call in your legal counsel who recommends that an immigration lawyer should examine the case.

Due Diligence - An employer’s best friend

Upon reviewing the facts of the case, the lawyer informs you that despite having a valid Social Insurance Number, this person may still not be lawfully able to work for your company. The lawyer instructs you to gather additional information from the candidate.

Once you have conducted due diligence, it turns out that the person is a foreign national from another country who has been in Canada on a valid work permit. His current work permit has another one month of validity on it so he has lawful status in the country, but was dismissed from his previous Canadian employer two months ago. The work permit that he possesses is employer-specific which means that he cannot lawfully work for another company in Canada without either getting his current work permit amended to reflect the new employer or by getting a new work permit altogether.

Things to watch out for

The lesson of this example is to always be cautious when contemplating the hiring of a foreign national to work in Canada whether he is already here in Canada still overseas. Canadian immigration law imposes very severe penalties on employers who illegally employ a foreign national. In the example above, the person had a Social Insurance Number, which would be enough for a Canadian Citizen or permanent resident to work in Canada, but in most cases, a foreign national requires a work permit to engage in employment-related activities on Canadian soil. The work permit, if required, should either have the name of the prospective employer on it or, in some cases, may be blank if the permit has been granted in an "open" category ( in the case of spouses, for example).

Consequences for getting it wrong

The IRPA requires employers to conduct due diligence when employing foreign nationals It also, provides a statutory defence to a violation based on illegally employing a foreign national if an employer can demonstrate that it engaged in due diligence. Deciding not to engage in due diligence prior to hiring a foreign national not only opens the company up to potential liability but can in many instances deprive your company of having the services of the foreign national in the future. A foreign national, if found to be working illegally in Canada, may be sent out of the country on a departure or deportation order and in some circumstances may be issued an exclusion order which could bar him or her from entering Canada for a number of years.

What if I really need to hire this person?

It is important for you to do your homework when considering hiring a foreign national. For example, the person may be the best person for the job but how difficult will it be for him or her to get the proper documentation to work for your company in Canada? In many instances changing the employer on a work permit can be done with a quick trip to the border, while other cases might take months to be resolved. This extreme difference in timelines can be of critical importance to an employer in making a determination of whether the person can start the position in a timeframe which is appropriate.

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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