Canadian Employers: New Compliance Regulations and Penalties to Come Into Force December 1

Strict penalties for Canadian employers who violate the rules of the Temporary Foreign Worker Program (TFWP) and International Mobility Program (IMP) will come into effect in less than two weeks. The new regulations, which were announced in July of this year, will be jointly administered and implemented by the departments of Citizenship and Immigration Canada (CIC) and Employment and Social Development Canada (ESDC).

Currently, the repercussions for employer non-compliance of any kind is a two-year ban from using the program. There is no range of penalties depending on the severity of the violation.

New requirements

Under the new regulations, employers who do not comply with the regulations of the program could receive a penalty of a one, two, five, or 10-year ban from use of the program(s) per violation. Ban lengths will be based on the type of violation, the employer’s history of violations that occurred on or after December 1, 2015, and the severity of the violation. In the most serious of cases, employers could be penalized with a permanent ban. Regular inspections of employer compliance will be carried out.

Employer requirements and conditions include, but may not be limited to:

providing accurate information in the context of a Labour Market Impact Assessment (LMIA) application;
retaining documents and records for a period of at least six years;
paying wages that are substantially the same, but not less favourable, than those set out in the job offer;
providing the same occupation as that set out in the job offer;
providing working conditions that are substantially the same, but not less favourable, than those set out in the job offer;
making reasonable efforts to provide a workplace free of abuse;
staying actively engaged in the business in which the job offer was made (not applicable for the Caregiver stream); and
remaining compliant with any federal, provincial or territorial employment or recruitment laws.

The penalties

The following tools may be used to assess employers’ adherence to program conditions and requirements:

Employer Compliance Reviews (ECR);
Reviews under Ministerial Instruction (RuMI); and
Inspections.

A system of administrative monetary penalties (AMPs) will be implemented as of December 1. These fines can range from $500 to $100,000 per violation. While the AMPs will be cumulative, bans will not. Instead, in situations where there are multiple bans, only the longest will apply.

As of December 1, employers who fail to comply with the new TFWP and IMP requirements will be subject to the following sanctions:

warnings;
fines ranging from $500 to $100,000 per violation, up to a maximum of $1 million over one year, per employer;
being banned from accessing the programs for one, two, five, or ten years or permanently; and
publication of the employer’s name on a public list with details of the violation(s) and sanction(s).

The discretion in applying this broad range of penalties will be guided in part by:

the type of violation;
an employer’s compliance history;
the severity of non-compliance; and
the size of the employer’s business (for financial penalties only).

The new regulations apply to employers hiring foreign nationals under either the TFWP or the IMP, as well as Canadians hiring foreign caregivers, and will apply to any violations that occur on or after December 1, 2015. For unjustified non-compliance with program conditions that occurs prior to December 1, the current regulatory framework which provides for a two-year ban will continue to apply.

“While many of the new compliance regulations and penalties may seem stringent, certain aspects of the regulations should receive a guarded welcome from employers and foreign workers alike, as well as the Canadian public,” says Attorney David Cohen.

“Though the vast majority of Canadian employers are scrupulous and transparent when it comes to labour standards, any ‘bad apples’, so to speak, will find it much more difficult to exploit or abuse foreign labour. This is naturally welcome news for all workers. For the Canadian public, a public blacklist of employers who have received bans or fines allows them to make transparent consumer choices. Finally, the majority of employers using programs who follow the rules should ultimately benefit from increased public confidence in the programs.”

To enquire about obtaining a work permit for Canada or if you are a Canadian employer wishing to hire internationally, please contact the Campbell Cohen work permit team an email at wp@canadavisa.com.