BlogCaution is an Employer’s Best Friend

18 July 2017

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Canada has experienced ongoing labour shortages for many years causing more employers to hire foreign workers to meet their business needs. The growth of Canada’s foreign worker program has led to the introduction, in recent years, of strict compliance measures for employers in all aspects of Canada’s immigration delivery system with Service Canada, Immigration, Refugees and Citizenship Canada (IRCC) and the Canada Border Services Agency (CBSA). Failure to comply with the terms and conditions of the work permit application process can lead to serious consequences for employers.

The application process for employers seeking to hire foreign workers can only be described as onerous. The general process for an employer to bring a foreign worker to Canada is by obtaining a Labour Market Impact Assessment (LMIA) from Service Canada. A few years ago, this process only required an employer to complete a five-page application form without an application fee. Today there is a $1000 employer application fee (for each foreign worker) and two separate application forms – the 11-page LMIA application form and the 10-page Transition Plan. An employer must declare that they will comply with 18 individual obligations regarding the job offer to the foreign worker. Failure to comply with any of these 18 specific terms or conditions can result in an employer being non-compliant and bring about serious penalties.

In addition to the 18 specific obligations that an employer must commit to in the LMIA application form, there is a general declaration which must be agreed to directly above the signature of the employer with the following condition:

“I commit to hire the worker(s) covered by this application on a full-time basis as per the terms of the job offer described in this application and in the LMIA letter and annex upon issuance of the work permit and/or permanent resident visa(s).”

An employer must commit to honouring all of the terms and conditions of the job offer set out in the advertisements, job offer letter and LMIA documentation. The consequences for failing to comply with all of the specific provisions of the job offer can result in the loss of all foreign workers, having the company publicly blacklisted for a period of 2 years, being prohibited from applying for foreign workers for 2 years, up to a $50,000 fine and up to 2 years in jail. Yes, failure to do what you say you are going to do can result in jail time for an employer.

Your company can become the subject of a compliance audit based upon a history of previous non-compliance, being randomly selected or based upon a reason to suspect non-compliance such as a complaint from a member of the public or any federal, provincial or territorial government agency. Obviously, an unhappy worker who is not being employed in accordance with the terms of their job offer is a prime candidate to make a complaint against their employer. If you are selected for a compliance audit, it is your responsibility to demonstrate that your company has been compliant for ALL foreign workers and must be able to provide all relevant documentation for the previous six years.

What if you discover that you have breached a term or condition? How can you self correct? Service Canada, IRCC and CBSA will take into consideration the circumstances which led to non-compliance as well as the efforts made by an employer to self correct the breach of a term or condition. If there has been a change made to the terms of employment by an HR Manager, and you, as the company owner learn of this, then remedying the breach – such as back payment of wages – will go a long way in leading to a favourable outcome. But even where an employer may voluntarily remedy a breach of a term or condition of employment, if this comes to the attention of government officials, you can expect to be audited more frequently.

The shortage of workers for many businesses has driven employers to turn to Canada’s foreign worker program. Employing foreign workers may be essential to your company’s business objectives but the process has significant responsibilities for employers. Be sure that you and your senior management and human resources team are all completely familiar with all aspects of the LMIA and work permit application process. And be sure to “do what you say that you are going to do” for all of your foreign workers!

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Sas and Ing Immigration Law Centre LLP

A partnership between Catherine Sas Law Corporation and Victor Ing Law Corporation

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