New Penalties for Canadian Employers Found in Non-Compliance of Temporary Foreign Worker Program

“Stiff new consequences will encourage compliance” — Employment Minister

Strict penalties for Canadian employers who violate the rules of the Temporary Foreign Worker Program (TFWP) and International Mobility Program (IMP) have been announced by the government of Canada. The departments of Citizenship and Immigration Canada (CIC) and Employment and Social Development Canada (ESDC) will be implementing the new regulations, which come into effect as of December 1, 2015.

These new regulations are an attempt to enhance the existing compliance framework to better address varying degrees of defiance in response to concerns about changes to the TFWP announced in June, 2014.

Currently, the consequence for non-compliance of any kind is a two-year ban for employers from using the program. There exists no range of penalty depending on the severity of the violation. The new regulations apply to employers hiring foreign nationals under either the TFWP or the IMP, as well as Canadians hiring foreign caregivers.

Under the new regulations, employers who do not comply with the conditions of the program following an inspection 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.

Furthermore, a system of administrative monetary penalties (AMPs) will be implemented. 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.

“Stiff new consequences will encourage compliance and help prevent employers from misusing the programs or mistreating workers by ensuring that employers who violate program conditions face appropriate consequences,” said Employment Minister, Pierre Poilievre.

A discussion paper published by ESDC in September, 2014, put forward a list of proposed consequences for employers found to be in non-compliance. Since then, the government received feedback from 42 stakeholder groups. A number of amendments were made to the proposed penalties in response to the stakeholders’ feedback, including:

A cap of $1 million per year, per employer in AMPs;
A 30-day period for the employer to respond in writing to the findings of the inspection, with the possibility of extension. After the 30 days, the dispute will be referred to the court system;
The option for employers to voluntarily disclose mistakes in order to receive a less severe penalty. This lesser penalty may simply be a written warning;
The reinstatement of “good faith” provisions. These will acknowledge the existence of human error, including administrative errors or misinterpretations; and
A “blacklist” posted online with only the names of employers who have either been fined or banned from use of the program, rather than the names of all so-called “non-compliant” employers.

“While many of the imminent regulations may appear overly strict — especially for small or medium-sized businesses who may make administrative errors in good faith and potentially receive penalties that could jeopardize their business — certain aspects of the regulations may receive a guarded welcome from employers and foreign workers alike, as well as the Canadian public,” says Attorney David Cohen.

“Though most Canadian employers are scrupulous and above board 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, which have received some negative press over recent months and years.”

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.