Canada Steps Up Regulation of Temporary Foreign Worker Program

Colin R. Singer
May 15, 2018

May 15, 2018 – Canada’s federal government is stepping up its regulation of the Temporary Foreign Worker Program with a sharp rise in inspections and employers deemed ‘high-risk’.

The move comes following criticism from Canada’s auditor-general, Michael Ferguson, who said in 2017 that not enough was being done to ensure employers were adhering to strict TFWP rules.

Key Conclusions of Ferguson’s Report

ESDC did not do enough to ensure that employers hired temporary foreign workers only as a last resort.
ESDC did not use all existing labour market information to determine whether Canadians could fill available positions.
ESDC made limited use of its expanded powers to identify employers that did not comply with program requirements.
ESDC did not measure the results of the program and its impact on the labour market.

In 2018, Employment and Social Development Canada conducted more than 1,300 inspections, more than seven times the number in 2016 and 2017. Over the same time period, 1,600 employers were flagged as ‘high-risk’, showing the ESDC is not afraid to name and shame those who operate outside the TFWP rules.

Key changes alongside increased inspections include a streamlining of the process for penalising those breaking the rules, who was previously mired in red tape.

The changes also mean the list of employers found to be non-compliant has grown sharply, to more than 60 from less than five a year ago.

ESDC has the power to ban employers from using the program, usually for two years, and impose fines.

The largest monetary penalty to date of $54,000 was imposed on Kameron Coal Management Limited in Cape Breton, who were said to have ignored qualified Canadians in favour of foreign workers.

An ESDC statement said companies were given time to willingly bring themselves into line with the rules of the program, with nearly half of those found to be non-compliant able to do this before penalties were impose.

The ESDC uses a points system to judge the severity of violations, with Administrative Monetary Penalties and Periods of Ineligibility the primary punishments.

Conditions TFWP Employers Must Meet

Item	Column 1 Provision	Column 2 Short-form Description	Column 3 Classification
1.	209.2(1)(b)(i)	Be able to demonstrate that any information provided in respect of a work permit application was accurate during a period of six years, beginning on the first day of the foreign national’s employment	Type A
2.	209.2(1)(b)(ii) and 209.3(1)(c)(ii)	Retain any document that relates to compliance with cited conditions during a period of six years, beginning on the first day of the foreign national’s employment	Type A
3.	209.3(1)(a)(iii)(C)	For employers of a live-in caregiver: have sufficient financial resources to pay wages that were offered	Type A
4.	209.3(1)(c)(i)	Be able to demonstrate that any information provided for the assessment was accurate during a period of six years, beginning on the first day of the foreign national’s employment	Type A
5.	209.4(1)(a)	Report at any time and place specified to answer questions and provide documents	Type A
6.	209.4(1)(b)	Provide required documents	Type A
7.	209.4(1)(c)	Attend any inspection, unless the employer was not notified, give all reasonable assistance to the person conducting the inspection and provide that person with any required document or information	Type A
8.	209.2(1)(a)(ii) and 209.3(1)(a)(ii)	Comply with the federal and provincial laws that regulate employment and the recruiting of employees in the province in which the foreign national works	Type B
9.	209.2(1)(a)(iii) and 209.3(1)(a)(iv)	Provide the foreign national with employment in the same occupation and substantially the same, but not less favourable, wages and working conditions as outlined in the foreign national’s offer of employment	Type B
10.	209.3(1)(a)(iii)(A)	For employers of a live-in caregiver: ensure that foreign national resides in a private household in Canada and provides child care, senior home support care or care of a disabled person in that household without supervision	Type B
11.	209.3(1)(b)(i)	Ensure that the employment of the foreign national will result in direct job creation or retention for Canadian citizens or permanent residents, if that was a factor that led to the issuance of the work permit	Type B
12.	209.3(1)(b)(ii)	Ensure that the employment of the foreign national will result in the development or transfer of skills and knowledge for the benefit of Canadian citizens or permanent residents, if that was a factor that led to the issuance of the work permit	Type B
13.	209.3(1)(b)(iii)	Hire or train Canadian citizens or permanent residents, if that was a factor that led to the issuance of the work permit	Type B
14.	209.3(1)(b)(iv)	Make reasonable efforts to hire or train Canadian citizens or permanent residents, if that was a factor that led to the issuance of the work permit	Type B
15.	209.2(1)(a)(i) and 209.3(1)(a)(i)	Be actively engaged in the business in which the offer of employment was made, unless the offer was made for employment as a live-in caregiver	Type C
16.	209.3(1)(a)(iii)(B)	For employers of a live-in caregiver: provide the foreign national with adequate furnished private accommodation in the household	Type C
17.	209.2(1)(a)(iv) and 209.3(1)(a)(v)	Make reasonable efforts to provide a workplace that is free of abuse within the meaning of paragraph 72.1(7)(a) of these Regulations	Type C

Administrative Monetary Penalty Amounts

Item	Column 1 Total Number of Points	Column 2 Type A Violation		Column 3 Type B Violation		Column 4 Type C Violation
Item	Column 1 Total Number of Points	Individual or Small Business ($)	Large Business ($)	Individual or Small Business ($)	Large Business ($)	Individual or Small Business ($)	Large Business ($)
1.	0 or 1	none	none	none	none	none	none
2.	2	500	750	750	1,000	1,000	2,000
3.	3	750	1,000	1,250	2,000	5,000	10,000
4.	4	1,000	2,000	3,000	7,000	10,000	20,000
5.	5	4,000	6,000	7,000	12,000	15,000	30,000
6.	6	8,000	10,000	12,000	20,000	20,000	40,000
7.	7	12,000	20,000	20,000	30,000	35,000	50,000
8.	8	20,000	30,000	35,000	45,000	45,000	60,000
9.	9 or 10	30,000	45,000	50,000	60,000	60,000	70,000
10.	11 or 12	40,000	60,000	60,000	70,000	70,000	80,000
11.	13 or 14	50,000	70,000	70,000	80,000	80,000	90,000
12.	15 or more	100,000	100,000	100,000	100,000	100,000	100,000

Periods of Ineligibility

Item	Column 1 Total Number of Points	Column 2 Type A Violation	Column 3 Type B Violation	Column 4 Type C Violation
1.	0 to 5	none	none	none
2.	6	none	none	1 year
3.	7	none	1 year	2 years
4.	8	1 year	2 years	5 years
5.	9 or 10	2 years	5 years	10 years
6.	11 or 12	5 years	10 years	10 years
7.	13 or 14	10 years	10 years	10 years
8.	15 or more	permanent	permanent	permanent

Violation History Considerations

Items	Column 1 Criterion	Column 2 Points
1.	For Type A and Type B violations — first violation	1
2.	For Type A violations — second or subsequent violation	2
3.	For Type B violations — second violation	2
4.	For Type C violations — first violation	2
5.	For Type B violations — third or subsequent violation	3
6	For Type C violations — second violation	3
7.	For Type C violations — third or subsequent violation	4

Severity of Violation

Item	Column 1 Criterion	Column 2 Points
1.	The employer derived competitive or economic benefit from the violation	0 to 6
2.	The violation involved abuse of a foreign national (physical, psychological, sexual or financial)	0 to 10
3.	The violation negatively affected the Canadian labour market or the Canadian economy	0 to 6
4.	The employer did not make reasonable efforts to minimize or remediate the effects of the violation	0 to 3
5.	The employer did not make reasonable efforts to prevent recurrence of the violation	0 to 3

Many of the issues raised in Ferguson’s report were the result of a TFWP crackdown implemented by the previous Conservative government.

The Liberals under Trudeau commissions a parliamentary report into the program, which came up with 21 recommendations, many of them overlapping with Ferguson’s criticisms.

As a result, several changes were made to the TFWP program.

Key Temporary Foreign Worker Program Changes

Abolishment of cumulative duration rule that said a worker under TFWP could only stay in Canada for four years, after which they could not return under the program for another four years.
10 per cent workforce cap for employers who began using the TFWP after June 20, 2014. Those who have been using the program since before then were capped at 20 per cent.
Employers required to do more to hire Canadians. Special emphasis will be on youth, new permanent residents, women, indigenous people and the disabled.
Users of TFWP to help government transition Canadians into the workforce through more use of outreach and training programs.
Elimination of Labour Market Impact Assessment fee for:
- Families seeking caregivers for persons with high medical needs.
- Families earning less than $150,000 seeking childcare.
Increased compliance inspections of firms employing temporary workers.
Making sure workers know their rights and protections on arrival.
Improved communication with provinces and territories.
Establishment of the Global Talent Stream, allowing work permits for high-skilled workers to be processing inside two weeks.

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