November 16, 2015 – A regime of Administrative Monetary
Penalties (AMPs) established in the Immigration and Refugee
Protection Act will come into force on December 1, 2015. Coupled
with an inspection drive already underway, the new penalty regime
adds financial teeth to current compliance and enforcement
Beginning in June 2014, reforms to the Temporary Foreign Worker
Program (TFWP) have included an emphasis on compliance and
enforcement. Included in the most recent budget implementation bill
was funding for inspections of 25% of workplaces that employ
foreign nationals. Those inspections, already underway, include not
only employers of foreign nationals under the TFWP, but also the
International Mobility Program (IMP) which includes intra-company
transfers and certain free-trade agreement work permit categories
The addition of AMPs will increase risk exposure for any
workplace that employs foreign nationals. AMPs are an increasingly
common regulatory compliance mechanism that permit a regulatory
body to impose monetary penalties for incidences of non-compliance,
often without the benefit of a proceeding.
The Administrative Monetary Penalty Regime
The AMP regime is designed to promote compliance with TFWP and
IMP requirements. Penalties may be imposed for a range of
violations, including non-compliance with record keeping
requirements and failure to adhere to conditions laid out in a
Labour Market Impact Assessment (LMIA) approval or offer of
employment (including payment of certain wages, and to provide
certain working conditions).
Where an employer fails to comply with multiple conditions or
program requirements, each failure will be treated as a separate
violation. As such, penalties under the AMP regime are cumulative,
up to a maximum of $1 million. The penalty regime uses a point
system to determine the size of the penalty, taking into account a
number of factors, including the size of the employer, previous
incidences of non-compliance and the degree to which the employer
benefited from the violation. In addition to monetary penalties,
employers may also be barred from hiring foreign workers and have
the details of their violations published on a website.
Violations may be identified during routine compliance reviews,
which encompass previous LMIA applications and are generally
triggered by new applications for LMIA approval or during
inspections. Those inspections may be conducted on-site, without a
warrant, and inspectors are granted broad powers to interview
employees and compel the production of payroll records and other
documents. Such inspections are already underway and the Employment
and Social Development Canada (ESDC) has set an inspection target
of 25% of workplaces employing foreign nationals in 2015.
After a preliminary finding is made, an employer has 30 days to
respond. Employers may invoke certain justifications –such as
good faith errors and administrative failure in their response.
Once a final determination has been issued, an employer will not be
able to apply for new LMIAs or support new work permit applications
until the penalty has been paid or a payment agreement has been
reached. Employers wishing to challenge a final determination by
ESDC must seek leave to apply for judicial review in Federal
Who is Affected?
Any employer of foreign nationals is affected. Both LMIA-based
and LMIA-exempt work permits, including NAFTA work permits and
intra-company transfers may be subject to compliance reviews,
inspection and enforcement action by ESDC.
Tag-Along Risk Concerns
Inspectors who, in the course of their inspection, identify
violations of other statutes and regulations, such as human rights
and employment standards legislation are permitted to share these
findings with the relevant regulatory authorities. Immigration
inspections may be conducted without a warrant and may compel the
production of any document required to ascertain compliance with
program requirements. As a result, immigration inspections may
expose employers to significant tag-along risk with respect to
other statutes and regulations.
Employers of foreign nationals should ensure that they are
compliant with not only program requirements and any conditions set
out in LMIA approvals, but also all other relevant employment,
human rights, and other legislation.
Green and Spiegel wants to ensure that this issue is well
understood by our clients and stakeholders and will be offering
complimentary information sessions for employers. Should you wish
to schedule a session for your organization please
contact Green and Spiegel.
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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