ARCHIVED — Vol. 149, No. 13 — July 1, 2015

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Registration

SOR/2015-144 June 12, 2015

IMMIGRATION AND REFUGEE PROTECTION ACT

Regulations Amending the Immigration and Refugee Protection Regulations

P.C. 2015-804 June 11, 2015

Whereas, pursuant to subsection 5(2) (see footnote a) of the Immigration and Refugee Protection Act (see footnote b), the Minister of Citizenship and Immigration has caused a copy of the proposed Regulations Amending the Immigration and Refugee Protection Regulations to be laid before each House of Parliament, substantially in the annexed form;

Therefore, His Excellency the Governor General in Council, on the recommendation of the Minister of Citizenship and Immigration, pursuant to subsection 5(1) and section 32 (see footnote c) of the Immigration and Refugee Protection Act (see footnote d), makes the annexed Regulations Amending the Immigration and Refugee Protection Regulations.

REGULATIONS AMENDING THE IMMIGRATION AND REFUGEE PROTECTION REGULATIONS

AMENDMENTS

1. Subsection 82(1) of the Immigration and Refugee Protection Regulations (see footnote 1) is replaced by the following:

Definition of “arranged employment”

82. (1) In this section, “arranged employment” means an offer of employment for full-time work in Canada that is non-seasonal and indeterminate, in an occupation listed in Skill Type 0 Management Occupations or Skill Level A or B of the National Occupational Classification matrix, that is made by an employer other than an embassy, high commission or consulate in Canada or an employer who is referred to in any of subparagraphs 200(3)(h)(i) to (iii).

2. (1) Clause 87.2(3)(d)(ii)(C) of the Regulations is replaced by the following:

  • (C) they have an offer of employment — for continuous full-time work for a total of at least one year in the skilled trade occupation that is specified in the application and is in the same minor group set out in the National Occupational Classification as the occupation specified on their work permit — that is made by up to two employers who are specified on the work permit, none of whom is an embassy, high commission or consulate in Canada or an employer who is referred to in any of subparagraphs 200(3)(h)(i) to (iii), subject to the visa being issued to the foreign national,

(2) Clause 87.2(3)(d)(iv)(A) of the Regulations is replaced by the following:

  • (A) up to two employers, none of whom is an embassy, high commission or consulate in Canada or an employer who is referred to in any of subparagraphs 200(3)(h)(i) to (iii), have made an offer of employment to the foreign national in the skilled trade occupation specified in the application for continuous full-time work for a total of at least one year, subject to the visa being issued to them, and

3. Paragraph 183(1)(b.2) of the Regulations is replaced by the following:

  • (b.2) if authorized to work by this Part or Part 11, to not enter into an employment agreement, or extend the term of an employment agreement, with an employer referred to in any of subparagraphs 200(3)(h)(i) to (iii); and

4. Paragraph 196.1(b) of the Regulations is replaced by the following:

  • (b) referred to in any of subparagraphs 200(3)(h)(i) to (iii).

5. Paragraph 200(3)(h) of the Regulations is replaced by the following:

  • (h) the foreign national intends to work for an employer who is
    • (i) subject to a determination made under subsection 203(5), if two years have not elapsed since the day on which that determination was made,
    • (ii) ineligible under paragraph 209.95(1)(b), or
    • (iii) in default of any amount payable in respect of an administrative monetary penalty, including if the employer fails to comply with a payment agreement for the payment of that amount.

6. (1) Subsection 203(2) of the Regulations is replaced by the following:

Assessment on request

(2) The Department of Employment and Social Development must provide the assessment referred to in subsection (1) on the request of an officer or an employer or group of employers, none of whom is an employer who

  • (a) on a regular basis, offers striptease, erotic dance, escort services or erotic massages; or
  • (b) is referred to in any of subparagraphs 200(3)(h)(i) to (iii).

Offer of employment

(2.01) A request may be made in respect of

  • (a) an offer of employment to a foreign national; and
  • (b) offers of employment made, or anticipated to be made, by an employer or group of employers.

(2) Subsection 203(5) of the Regulations is replaced by the following:

Failure to satisfy criteria

(5) If an officer determines that the criteria set out in subclause 200(1)(c)(ii.1)(B)(I) or subparagraph (1)(e)(i) were not satisfied and the failure to do so was not justified by the employer under subsection (1.1), the Department must notify the employer of that determination and that the information referred to in subsection 209.997(2) will be added to the list referred to in that subsection.

Publication of employer’s information

(6) If an officer makes a determination under subsection (5), the Department must add the information referred to in subsection 209.997(2) to the list referred to in that subsection.

7. Section 209.91 of the Regulations is repealed.

8. The Regulations are amended by adding the following after section 209.92:

DIVISION 6

ADMINISTRATIVE MONETARY PENALTIES AND OTHER CONSEQUENCES FOR FAILURE TO COMPLY WITH CONDITIONS IMPOSED ON EMPLOYERS

Interpretation

Definitions

209.93 The following definitions apply in this Division.

“large business”
« grande entreprise »

“large business” means any business that is not a small business.

“small business”
« petite entreprise »

“small business” means any business, including its affiliates, that has fewer than 100 employees or less than $5 million in annual gross revenues at the time a request for an assessment under subsection 203(2) is received, or if no such request is made, at the time a copy of an offer of employment for a work permit application is provided to the Minister under paragraph 209.11(1)(d).

Purpose

Purpose of Division

209.94 The purpose of this Division is to encourage compliance with the provisions of the Act and these Regulations and not to punish.

Violations

Violations

209.95 (1) An employer referred to in subsection 209.2(1) or 209.3(1) who fails to comply with one of the conditions set out in the provisions listed in column 1 of Table 1 of Schedule 2 — if the failure to do so is not justified under subsection 209.2(3) or (4), 209.3(3) or (4) or 209.4(2) — commits a violation and

  • (a) is liable to an administrative monetary penalty of an amount that is determined in accordance with section 209.98 or if it is determined under that section that there is no penalty, is issued a warning informing the employer that there is no administrative monetary penalty for the violation but that the violation will be considered in the calculation of the total number of points under subparagraph 209.991(1)(a)(i) for any subsequent violation; and
  • (b) if applicable, is ineligible to employ a foreign national for whom a work permit is required for the period determined in accordance with section 209.99.

Discrepancy

(2) In the event of a discrepancy between the short-form description in column 2 of Table 1 of Schedule 2 and the provision to which it pertains, the provision prevails.

Rules Applicable to Violations

Separate violation multiple foreign nationals

209.96 (1) A failure to comply — that is not justified under subsection 209.2(3) or (4), 209.3(3) or (4) or 209.4(2) — with a condition that affects more than one foreign national constitutes a separate violation for each foreign national affected.

Separate violation occupation, wages or working conditions

(2) A failure to comply — that is not justified under subsection 209.2(3) or 209.3(3) — with any one of the following elements of the condition set out in item 9 of Table 1 of Schedule 2, constitutes a separate violation:

  • (a) to provide the foreign national with employment in the same occupation as the occupation that is set out in the foreign national’s offer of employment;
  • (b) to provide the foreign national with wages that are substantially the same as — but not less favourable than — those set out in the foreign national’s offer of employment; and
  • (c) to provide the foreign national with working conditions that are substantially the same as — but not less favourable than — those set out in the foreign national’s offer of employment.

Separate violation live-in caregivers

(3) With respect to employers who employ foreign nationals as live-in caregivers, a failure to comply — that is not justified under subsection 209.3(3) — with either one of the following elements of the condition set out in item 10 of Table 1 of Schedule 2, constitutes a separate violation:

  • (a) to ensure that the foreign national resides in a private household in Canada,
  • (b) to ensure that the foreign national provides child care, senior home support care or care of a disabled person in that household without supervision.

Separate violation abuse

(4) A failure to comply — that is not justified under subsection 209.2(3) or 209.3(3) — with the condition set out in item 17 of Table 1 of Schedule 2 with respect to any one of the elements set out in subparagraphs 72.1(7)(a)(i) to (iv), constitutes a separate violation.

Classification

Provisions

209.97 A failure to comply — that is not justified under subsection 209.2(3) or (4), 209.3(3) or (4) or 209.4(2) — with a condition that is set out in one of the provisions listed in column 1 of Table 1 of Schedule 2, is classified as a violation of Type A, Type B or Type C as set out in column 3 of that Table.

Administrative Monetary Penalty Amount

Administrative monetary penalty amount

209.98 The administrative monetary penalty for a violation is the amount set out in column 2, 3 or 4 of Table 2 of Schedule 2 opposite the total number of points determined under section 209.991 as set out in column 1, depending on the type of violation and whether it is committed by an individual or small business, or a large business.

Period of Ineligibility

Period of ineligibility

209.99 (1) The period of ineligibility for a violation is the period set out in column 2, 3 or 4 of Table 3 of Schedule 2 opposite the total number of points determined under section 209.991 as set out in column 1 depending on the type of violation.

Beginning of period

(2) The period referred to in subsection (1) begins on the day on which the determination referred to in subsection 209.996(1) or (2) is made in respect of the employer.

Total Number of Points

Calculation

209.991 (1) The total number of points in respect of each violation is determined by

  • (a) considering
    • (i) the compliance history of the employer who committed the violation set out in column 1 of Table 4 of Schedule 2, and
    • (ii) the severity criteria set out in column 1 of Table 5 of Schedule 2;
  • (b) ascribing
    • (i) for the criterion described in subparagraph (a)(i), the applicable number of points set out in column 2 of Table 4 of Schedule 2,
    • (ii) for the criteria described in subparagraph (a)(ii), the applicable number of points set out in column 2 of Table 5 of Schedule 2 having regard to the severity or the impact of the violation, as the case may be,
  • (c) adding the values obtained under paragraph (b); and
  • (d) if the employer made an acceptable voluntary disclosure in accordance with subsections (2) and (3) and the value obtained under paragraph (c)
    • (i) is four or more, subtracting four points from the value obtained under that paragraph , or
    • (ii) is less than four, replacing that value with a value of zero.

Voluntary disclosure criteria of acceptability

(2) The voluntary disclosure made by an employer with respect to the commission of a violation by the employer is acceptable if

  • (a) the disclosure is complete; and
  • (b) at the time the voluntary disclosure is made, the powers set out in sections 209.6 to 209.9 are not being exercised in respect of the employer nor is any enforcement action related to an offence arising out of the contravention of a provision of the Act being undertaken in respect of the employer.

Voluntary disclosure considerations

(3) Despite subsection (2), an officer or the Minister of Employment and Social Development may consider that the voluntary disclosure is not acceptable after considering

  • (a) the severity of the impact of the violation on the foreign national;
  • (b) in the case of an employer described in subsection 209.2(1), the severity of the impact of the violation on the Canadian economy, or in the case of an employer described in subsection 209.3(1), the severity of the impact of the violation on the Canadian labour market;
  • (c) whether the disclosure was made in a timely manner;
  • (d) the number of times an acceptable voluntary disclosure is made by the employer; and
  • (e) the nature of the condition with which the employer failed to comply.
Multiple Violations

Cumulative amounts

209.992 (1) If a notice of preliminary finding under section 209.993 or a notice of final determination under section 209.996 that is issued to an employer lists more than one violation, the administrative monetary penalty amounts are cumulative but the total must not exceed $1 million.

Applicable period of ineligibility

(2) If a notice of preliminary finding or a notice of final determination that is issued to an employer includes more than one period of ineligibility, the longest period of ineligibility applies.

Notice of Preliminary Finding

Notice issuance by officer

209.993 (1) If an officer assesses, on the basis of information obtained by any officer or the Minister of Employment and Social Development during the exercise of the powers set out in sections 209.6 to 209.8 and any other relevant information, that an employer has committed a violation because that employer failed to comply with one of the conditions set out in the provisions listed in column 1 of Table 1 of Schedule 2 and the failure to do so was not justified under subsection 209.2(3) or (4) or 209.4(2), the officer must issue a notice of preliminary finding to the employer.

Notice issuance by Minister

(2) If the Minister of Employment and Social Development assesses, on the basis of information obtained during the exercise of the powers set out in sections 209.6, 209.7 and 209.9 and any other relevant information, that an employer has committed a violation because that employer failed to comply with one of the conditions set out in the provisions listed in column 1 of Table 1 of Schedule 2 and the failure to do so was not justified under subsection 209.3(3) or (4) or 209.4(2), that Minister must issue a notice of preliminary finding to the employer.

Content of notice

(3) The notice of preliminary finding must include the following information:

  • (a) the name of the employer referred to in subsection (1) or (2), as the case may be;
  • (b) the condition with which the employer failed to comply as well as the provision listed in column 1 of Table 1 of Schedule 2, the relevant facts surrounding the violation and the reasons for the preliminary finding;
  • (c) if applicable, the administrative monetary penalty amount and the period of ineligibility for the violation as well as the statement that the violation will be considered in the calculation of the total number of points under subparagraph 209.991(1)(a)(i) for any subsequent violation;
  • (d) if applicable, the statement that a warning may be issued to the employer informing them that there is no administrative monetary penalty for the violation but that the violation will be considered in the calculation of the total number of points under subparagraph 209.991(1)(a)(i) for any subsequent violation; and
  • (e) the statement that the employer may make written submissions within the period set out in section 209.994 with respect to the information referred to in paragraphs (b) to (d).

Submissions by employer period

209.994 (1) An employer to whom a notice of preliminary finding under section 209.993 or a corrected notice of preliminary finding under section 209.995 is issued may, within 30 days after the day on which it is received,

  • (a) make written submissions with respect to the information referred to in paragraphs 209.993(3)(b) to (d); or
  • (b) request an extension of that period.

Deemed receipt

(2) Despite section 3 of the Electronic Documents and Electronic Information Regulations, a notice of preliminary finding or a corrected or cancelled notice of preliminary finding is deemed to have been received 10 days after the day on which it is sent.

Submissions by employer extension of period

(3) An officer or the Minister of Employment and Social Development may extend the period referred to in subsection (1) if there is a reasonable explanation justifying its extension.

Correction or cancellation of notice

209.995 An officer or the Minister of Employment and Social Development may correct any information in a notice of preliminary finding that is issued under subsection 209.993(1) or (2), or cancel one, at any time before a notice of final determination is issued under section 209.996.

Notice of Final Determination

Notice issuance by officer

209.996 (1) Subject to subsection (3), if an officer determines, on the basis of information obtained by any officer or the Minister of Employment and Social Development during the exercise of the powers set out in sections 209.6 to 209.8 and any other relevant information, that an employer has committed a violation because that employer failed to comply with one of the conditions set out in the provisions listed in column 1 of Table 1 of Schedule 2 and the failure to do so was not justified under subsection 209.2(3) or (4) or 209.4(2), the officer must issue a notice of final determination to the employer.

Notice issuance by Minister

(2) Subject to subsection (3), if the Minister of Employment and Social Development determines, on the basis of information obtained during the exercise of the powers set out in sections 209.6, 209.7 and 209.9 and any other relevant information, that an employer has committed a violation because that employer failed to comply with one of the conditions set out in the provisions listed in column 1 of Table 1 of Schedule 2 and the failure to do so was not justified under subsection 209.3(3) or (4) or 209.4(2), that Minister must issue a notice of final determination to the employer.

Period

(3) An officer or the Minister of Employment and Social Development must not make a determination before the expiry of the period set out in subsection 209.994(1) or the period extended under subsection 209.994(3) as the case may be.

Content of notice

(4) The notice of final determination must include the following information:

  • (a) the name of the employer referred to in subsection (1) or (2), as the case may be;
  • (b) the condition with which the employer failed to comply as well as the provision listed in column 1 of Table 1 of Schedule 2, the relevant facts surrounding the violation and the reasons for the determination;
  • (c) if applicable, the administrative monetary penalty amount and the period of ineligibility for the violation as well as the statement indicating that the violation will be considered in the calculation of the total number of points under subparagraph 209.991(1)(a)(i) for any subsequent violation;
  • (d) if applicable, a warning informing the employer that there is no administrative monetary penalty for the violation but that the violation will be considered in the calculation of the total number of points under subparagraph 209.991(1)(a)(i) for any subsequent violation;
  • (e) if applicable, a statement that the administrative monetary penalty amount must be paid within 30 days after the day on which the notice of final determination is received by the employer, unless a payment agreement for the payment of amount and interest has been reached within that period; and
  • (f) how the administrative monetary penalty is to be paid.

Maximum amount within 12 months

(5) If the sum of the administrative monetary penalty amount described in paragraph (4)(c) and all previous administrative monetary penalty amounts provided for in notices of final determination issued to the employer in question within 12 months before the day on which the determination is made exceeds $1 million, then the amount of the penalty must be reduced by that excess.

Deemed receipt

(6) Despite section 3 of the Electronic Documents and Electronic Information Regulations, a notice of final determination is deemed to have been received 10 days after the day on which it is sent.

List of Employers

Publication of employer’s information

209.997 (1) If an officer or the Minister of Employment and Social Development makes a determination under subsection 209.996(1) or (2) in respect of an employer, the Department or that Minister, as the case may be, must add the information referred to in subsection (2) to the list referred to in that subsection, except if the officer or that Minister issues a warning to the employer in accordance with paragraph 209.996(4)(d).

Content of list

(2) A list is posted on one or more Government of Canada websites and includes the following information:

  • (a) the employer’s name;
  • (b) the employer’s address;
  • (c) the criteria set out in subclause 200(1)(c)(ii.1)(B)(I) or subparagraph 203(1)(e)(i) that were not satisfied or the conditions set out in the provisions listed in column 1 of Table 1 of Schedule 2 with which the employer failed to comply, as the case may be;
  • (d) the day on which the determination was made;
  • (e) the eligibility status of the employer;
  • (f) if applicable,
    • (i) the administrative monetary penalty amount, and
    • (ii) the ineligibility period of the employer.

9. The Regulations are amended by adding, after Schedule 1, the Schedule 2 set out in the schedule to these Regulations.

TRANSITIONAL PROVISION

10. The Immigration and Refugee Protection Regulations, as they read immediately before the day on which these Regulations come into force, continue to apply with respect to a failure to comply with one of the conditions set out in sections 209.2 to 209.4 that is not justified under subsection 209.2(3) or (4), 209.3(3) or (4) or 209.4(2), if that failure occurred before December 1, 2015.

COMING INTO FORCE

11. These Regulations come into force on December 1, 2015.

SCHEDULE
(Section 9)

SCHEDULE 2
(Section 209.95, subsections 209.96(2), (3) and (4), sections 209.97 and 209.98, subsections 209.99(1) and 209.991(1), section 209.993, subsections 209.996(1), (2) and (4) and paragraph 209.997(2)(c))

VIOLATIONS
TABLE 1
EMPLOYER CONDITIONS
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
TABLE 2
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
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
TABLE 3
PERIOD 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
TABLE 4
COMPLIANCE HISTORY
Item 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
TABLE 5
SEVERITY OF THE 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

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Executive summary

Issues: Currently, the only consequence for employers found non-compliant with conditions of the Temporary Foreign Worker Program (TFWP) and International Mobility Program (IMP) following an inspection is a two-year ban from the programs. The Immigration and Refugee Protection Regulations (IRPR) do not provide a range of consequences to respond proportionately to varying degrees of non-compliance, to more effectively encourage compliance, or to address situations where employers have benefitted financially from non-compliance.

Description: To enhance the existing compliance framework and to be able to respond proportionately to non-compliance with TFWP/IMP conditions, Employment and Social Development Canada (ESDC) and Citizenship and Immigration Canada (CIC) developed regulatory amendments to implement a system of administrative monetary penalties (AMPs). In addition, these amendments add warning statements as a possible consequence for violations and replace the existing mandatory two-year ban with periods of ineligibility to employ foreign nationals for whom a work permit is required (“bans”) of 1, 2, 5, and 10 years, as well as a permanent ban for the most serious violations. The amendments also encourage employers to voluntarily disclose non-compliance and receive reduced consequences if the voluntary disclosure is acceptable. In accordance with the principles of natural justice, under the amendments, employers will be provided the opportunity to make written submissions regarding preliminary findings of non-compliance, as well as the potential consequences, before a final determination is made.

Cost-benefit statement: The total costs of the regulatory amendments are estimated to have a present value of $43.5 million ($5.8 million as an annualized average) over 10 years. These costs will be incurred by the Government of Canada to implement and administer new consequences for non-compliance with TFWP/IMP conditions. The amendments will provide a net benefit to Canadians by more effectively encouraging compliance with conditions that protect foreign workers and the Canadian labour market and Canadian economy. The majority of employers using the TFWP/IMP who follow the rules will benefit from increased public confidence in the programs, and Canadians, permanent resident and foreign workers will benefit from reduced employer non-compliance, for example through improved working conditions. Finally, by better deterring misuse of the programs, the amendments will help ensure that Canadians and permanent residents are first in line for available jobs.

“One-for-One” Rule and small business lens: The “One-for-One” Rule and the small business lens do not apply to these amendments, as there is no change in administrative burden, nor any incremental costs imposed on small businesses that comply with the Immigration and Refugee Protection Act (IRPA) and IRPR.

Background

On June 20, 2014, the Government of Canada announced an overhaul of the Temporary Foreign Worker Program (TFWP).

The overhaul rebranded the TFWP into two distinct programs: the TFWP led by ESDC and the International Mobility Program (IMP) led by CIC. This was done to better reflect the differences between the processes for foreign workers requiring a Labour Market Impact Assessment (LMIA) to obtain a work permit and for those who are LMIA-exempt.

As part of the overhaul, new measures were announced to enhance the compliance framework by applying consequences for employer non-compliance in the form of administrative monetary penalties (AMPs) and bans from the programs of various lengths.

These measures build on previous amendments to the Immigration and Refugee Protection Regulations (IRPR) that came into force on December 31, 2013, which imposed conditions on employers and provided authority to conduct inspections to verify employer compliance. The 2013 amendments also included a mandatory two-year ban for employers found non-compliant, as well as the requirement to place their names on a list of non-compliant employers on the Department of CIC’s Web site. Cases involving alleged or suspected criminal offences under the IRPA are referred to the Canada Border Services Agency for investigation.

Also on December 31, 2013, the Minister of Employment and Social Development and the Minister of Citizenship and Immigration issued ministerial instructions to their respective departments. These ministerial instructions set out the public policy considerations for which ESDC may suspend or revoke a positive LMIA or refuse to process an LMIA application, and under which CIC may suspend the processing of a work permit application or revoke a work permit if it has been issued. On June 21, 2014, the Minister of Employment and Social Development issued ministerial instructions authorizing the refusal to process LMIAs for two years for employers who have had an LMIA revoked for providing false, misleading, or inaccurate information.

On June 19, 2014, Bill C-31, the Economic Action Plan 2014 Act, No. 1 (the Act), received royal assent. The Act amended the IRPA to provide authority to make regulations to establish a system of AMPs for employers who fail to comply with the conditions of the TFWP and IMP. To enhance the existing compliance framework and to respond to non-compliance with TFWP/IMP conditions, ESDC and CIC have moved ahead with regulatory amendments for the implementation of an AMPs system, as well as varied bans, both of which are key pieces of the enhanced compliance framework.

Issues

Employer non-compliance with TFWP/IMP conditions has been highlighted by employer compliance reviews conducted by ESDC since 2011 as part of the LMIA process, as well as by media cases, and over 2 250 tips received through a confidential Tip Line launched in April 2014.

Under the existing compliance regime, the only available response to employers found non-compliant following an inspection is a two-year ban from the programs. This “one-size-fits-all” response may not be sufficient in all cases to encourage compliance, including where an employer has benefitted financially from non-compliance.

Objectives

The objectives of these amendments are to increase the Government’s ability to encourage employer compliance with TFWP/IMP conditions and deter non-compliance by implementing a range of consequences to enable a proportionate response to varying degrees of non-compliance. This will help protect foreign nationals who require a work permit to work in Canada and protect the Canadian economy and labour market.

Description

The regulatory amendments include the following key elements:

A. Violations

The provisions clarify the general purpose and scope of application of AMPs and varied bans

  • the purpose of AMPs and varied bans is to promote compliance and not to punish;
  • a violation is a failure to comply with TFWP/IMP conditions for which the employer does not provide a justification (as set out in the IRPR);
  • AMPs and varied bans will apply to employers found non- compliant following an inspection;
  • where an employer fails to comply with multiple conditions, each unjustified failure to comply will be treated as a separate violation;
  • violations of a single condition that involve more than one foreign worker will be treated as separate violations for each foreign worker affected; and
  • for conditions that have separate elements, a failure to comply with each element that is not justified will be treated as a separate violations.
B. Preliminary finding

If it is assessed during an inspection that a violation has been committed because the employer failed to comply with a condition and that failure was not justified under the IRPR, a preliminary finding must be issued to the employer. A notice of preliminary finding may be corrected or cancelled before a final determination is made.

C. Opportunity to respond

After the notice of preliminary finding is issued, employers will be provided the opportunity to make written submissions regarding the information in the notice within 30 days after it is received. An employer may be granted an extension to this opportunity to respond if the Minister (see footnote 2) (in the case of ESDC) or the officer (in the case of CIC) is satisfied that there is a reasonable explanation (e.g. force majeure) for requesting a longer period.

D. Final determination

The Minister of Employment and Social Development or an officer of CIC shall issue a notice of final determination if it is determined that a violation was committed because the employer failed to comply with a condition and that failure was not justified. This determination is final and binding except for judicial review.

E. Administrative monetary penalties (AMPs)

A system of AMPs is established as a consequence for violations, and includes the following elements:

  • AMPs will be determined by the Minister of Employment and Social Development or a CIC officer based on the type of violation; whether the employer is an individual, small business, or large business; the employer’s history of violations that occurred on or after December 1, 2015; and the severity of the violation according to a system of points outlined in IRPR.
  • AMPs are cumulative, and separate AMPs will be imposed for each violation.
  • The maximum AMP is $100,000 per violation and the total that can be imposed is capped at $1 million on a single notice of final determination. In addition, the total AMPs imposed on a single employer cannot exceed $1 million in the one-year period preceding the date of the final determination.
  • There is no limitation on the collections period for AMPs, and new LMIA and work permit applications will not be accepted if the employer has not paid an AMP or is not complying with a payment agreement if one has been entered into.
F. Varied ban periods
  • The mandatory two-year ban for a violation is replaced with the authority to impose bans of 1, 2, 5, and 10 years, as well as a permanent ban.
  • Ban lengths will be determined by the Minister of Employment and Social Development or a CIC officer according to a system of points outlined in the IRPR. 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.
  • Bans will not be cumulative, and in cases where there are bans for multiple violations, the longest ban will apply.
G. Publication of employers names

The names of employers who commit a violation, and who have received a notice of final determination, will be published on one or more Government of Canada Web sites. The only exception is for violations where no AMP or ban applies (e.g. in some cases of voluntary disclosure).

Note that employers who have received an AMP, but no ban will remain eligible to employ foreign nationals for whom a work permit is required, unless they have not paid the AMP and are not complying with a payment agreement if one was entered into. The public list will indicate the names of employers, any applicable AMP amounts or ban lengths, and whether they are currently eligible to employ a foreign national for whom a work permit is required.

H. Voluntary disclosure

The IRPR provides for reduced consequences for violations where an employer makes an acceptable voluntary disclosure. Several factors set out in the IRPR will be considered in determining whether a voluntary disclosure is acceptable, such as the timeliness and completeness of the disclosure, previous disclosures, the nature of the condition violated, the severity of the violation, and whether the employer is subject to another compliance action relevant to the TFWP/IMP.

I. Consequential amendments

Consequential amendments are made to ensure consistent wording throughout the IRPR: subsection 82(1), clauses 87.2(3)(d)(ii)(C), 87.2(3)(d)(iv)(A), paragraphs 183(1)(b.2), 196.1(b), 200(3)(h), sections 203(2) and 203(5) are amended to update references to employer ineligibility for employers who are in default of payment of AMPs and to align with the new paragraph 209.95(1)(b).

Regulatory and non-regulatory options considered

Options considered
(1) Status quo — no regulatory amendments

Under the current inspection authorities, determinations of non-compliance that are not justified under the IRPR result in a mandatory two-year ban, regardless of the history of the employer and the severity and scope of violations. Maintaining the current regime, with its lack of range of consequences, may not be sufficient in all cases to encourage compliance and, therefore, does not meet the objective to respond proportionately to different violations.

(2) AMPs and varied bans as proposed in the discussion paper

The discussion paper published in September 2014 proposed a system of AMPs and bans of various lengths to respond proportionately to employer non-compliance, with an administrative review process whereby employers could challenge a final determination of non-compliance. It was proposed to repeal two justifications for non-compliance (related to good faith and administrative errors) and no consideration was contemplated for employers who voluntarily report non-compliance. While this option would meet the objectives to encourage compliance and to protect foreign workers, the Canadian labour market, and the Canadian economy, stakeholders raised concerns that the proposals did not adequately address procedural fairness.

(3) AMPs and varied bans (the regulatory amendments)

These regulatory amendments provide a range of consequences to respond to various degrees of employer non-compliance with TFWP/IMP conditions, namely warning statements, AMPs and varied bans. This will allow for a proportionate response to violations, addressing cases where employers have benefitted financially from non-compliance, and improving the protection of foreign workers, the Canadian labour market and the Canadian economy. These amendments also respond to stakeholder concerns about procedural fairness by implementing reduced consequences for acceptable voluntary disclosure of violations, including in some cases only a warning statement, retaining the two justifications for non-compliance, and establishing a formal opportunity for employers to respond in writing to a preliminary finding of non-compliance before a final determination is made.

Benefits and costs

An analysis was conducted to assess the costs and benefits of the new system of AMPs and bans for employers found non-compliant with TFWP/IMP conditions.

First, a baseline scenario was described in which no changes are made to the current compliance framework. At present, all employers found non-compliant with TFWP/IMP conditions following an inspection receive a two-year ban, regardless of their compliance history, the type or severity of the violation, or whether they are an individual, small business, or large business.

The baseline scenario was then compared to the scenario with the regulatory amendments, in which non-compliant employers will receive a warning letter, an AMP, and/or a ban of 1, 2, 5 or 10 years or a permanent ban, if applicable. The consequences will be proportionate to the violation based on the employer’s compliance history, the type of violation, and the severity of the impact, and whether they are an individual, small business, or large business (for AMPs). In addition, employers will have the formal opportunity to respond in writing to a preliminary finding of non-compliance before a final determination is made. While it reflects informal practices, this formal process does not currently exist. The amendments do not change the authority to conduct inspections, so the number of non-compliant employers does not change from the baseline.

The analysis covers the 10-year period beginning in 2015 when the amendments are implemented and ending in the year 2024. All costs and benefits are projected over this period and expressed in constant 2015 dollars using a discount rate of 7%.

Over the 10-year period following the introduction of the regulatory amendments, the present value of the total estimated costs is $43.5 million, ($5.8 million as an annualized average). These costs will be incurred by the Government of Canada to implement and administer new consequences for non-compliance with TFWP/IMP conditions, including the new opportunity to respond. The amendments will provide a net benefit to Canadians by more effectively encouraging compliance with conditions that protect foreign workers, the Canadian labour market and the Canadian economy.

Notably, neither the costs to businesses resulting from AMPs and bans nor the revenue to Government from AMPs are included in this analysis. As per the Treasury Board of Canada Secretariat’s Canadian Cost-Benefit Analysis Guide: Regulatory Proposals, taxes, fees, levies and other charges, because they constitute transfers from one group to another, are not considered to be compliance or administrative costs, whether they are intended as incentives to foster compliance and change behaviour or whether their purpose is to recover the costs of providing a service. Costs and revenues related to AMPs and bans are considered outside the normal course of business since they result from non-compliance with TFWP/IMP conditions. This treatment is consistent with cost-benefit analyses recently completed by other federal organizations for regulatory amendments to establish AMPs systems.

Cost-benefit statement

  Base Year 2015–2016 Year Five 2019–2020 Final Year 2024–2025 Total Annualized Average
A. Quantified impacts (millions of present value Canadian dollars, 2015)
Costs Stakeholder          
Administering AMPs and bans (determine AMP amounts and ban lengths, collect AMPs, assess employer submissions, information technology systems, etc.) Government of Canada $1.2 $5.1 $3.7 $43.5 $5.8
Total costs   $1.2 $5.1 $3.7 $43.5 $5.8
Net monetized benefits –$43.5 –$5.8
B. Qualitative impacts
Benefits
Benefits Stakeholders Description of benefit
Enhanced business and trade Employers using the TFWP and IMP programs Enhanced public confidence in employers who follow the rules, competitive labour costs, and proportionate penalties for administrative non-compliance.
Improved employment standards and working conditions Foreign workers, Canadian and permanent resident workers Enhanced compliance with TFWP/IMP conditions that promote safe and fair working conditions. Indirectly, enhanced compliance with federal and provincial/territorial regulations that govern employment standards and working conditions.
Enhanced labour market outcomes Canadian and permanent resident workers Improved opportunities to find employment and remain employed, by deterring non-compliance with conditions that protect the labour market.

Costs

Government of Canada: ESDC, CIC and Service Canada
One-time implementation costs

Initial costs, such as training and development of policies and guidance, are considered negligible as they are part of the regular policy work conducted at ESDC and CIC. Updates to information technology (IT) systems will be done through regular upgrade cycles.

Ongoing costs

The costs to CIC, ESDC, and Service Canada to administer the AMPs system and varied bans have been estimated at an annualized average of $5.8M per year. These costs include activities such as

  • determining individual AMP amounts and ban lengths;
  • reviewing new information submitted by employers in response to a preliminary finding of non-compliance, including on the proposed AMP and/or ban;
  • costs for judicial review of AMPs and varied bans;
  • receiving AMPs payments and collections activities for unpaid AMPs;
  • ongoing maintenance of IT systems; and
  • responding to employer enquiries about the amendments.

Benefits

Business

A more effective compliance framework will benefit the majority of TFWP/IMP employers who follow the rules by increasing public confidence in the programs. The amendments should reduce any unfair advantage employers may have gained from non-compliance by providing a financial consequence for non-compliance. Finally, employers who commit minor violations could receive a warning letter or a small AMP as opposed to the current mandatory two-year ban.

Foreign workers in Canada

In workplaces that employ foreign workers for whom a work permit is required, the amendments are expected to reduce levels of non-compliance with TFWP/IMP conditions and improve the overall work environment for foreign workers. For example, foreign workers should benefit from increased compliance by employers with requirements to provide substantially the same, but not less favourable, wages and working conditions as on the job offer, as well as the requirements for employers to make reasonable efforts to provide a workplace free from physical, psychological, financial and sexual abuse.

Canadians and permanent residents

Improving employer compliance with TFWP/IMP conditions, such as the requirement to hire or train Canadians and permanent residents or to demonstrate that information provided on applications (e.g. recruitment efforts) was accurate will benefit the domestic labour force by increasing the potential of Canadians and permanent residents to find employment or remain employed. Canadian and permanent resident workers will also benefit from improved occupational health and safety and employment standards as enhanced compliance with TFWP/IMP conditions by employers leads to an increased focus on compliance in general, including with federal, provincial, and territorial laws.

“One-for-One” Rule

The “One-for-One” Rule does not apply to these amendments, as there is no change in administrative costs to business.

Small business lens

The small business lens does not apply to these amendments, as there are no costs to small businesses.

Consultation

ESDC and CIC extensively consulted stakeholders on the proposal through a discussion paper published in fall 2014. The discussion paper was available online through both the ESDC and CIC sites, as well as Consulting Canadians. To ensure that as many stakeholders as possible had an opportunity to comment, ESDC and CIC sent the discussion paper to a list of over 300 stakeholders, including employer representatives, immigration consultants and lawyers, provinces and territories, migrant worker organizations, and academics. Officials also held follow-up phone calls with several major stakeholder organizations to provide an opportunity for a more detailed discussion. In total, 42 comments were received.

Commenters universally agree that employers who abuse the programs should face consequences. Some stakeholders suggested revisions to enhance procedural fairness and to help ensure that penalties imposed are proportionate to violations. Stakeholders did not suggest specific adjustments to the proposed AMP amounts or ban lengths.

Some employers expressed

  • that the proposed consequences for non-compliance were overly punitive;
  • that publishing names of all non-compliant employers and the consequent damage to brand reputation is unfair;
  • support for warning letters and compliance promotion activities, and asked to be issued detailed, clear guidance as soon as possible;
  • concern with the original proposal to repeal justifications for non-compliance based on good faith or unintentional errors;
  • that a voluntary disclosure policy could allow employers to correct some non-compliance without penalty;
  • concern with the potential for costly delays related to the proposed administrative review process, particularly in light of LMIAs potentially being suspended or not processed during the review process;
  • that administrative reviews should be done by an independent panel and that officers should be allowed discretion on whether to find non-compliance on minor violations;
  • that permanent bans may prove ineffective as employers seek new corporate identities to continue using the TFWP/IMP; and
  • concern about the complexity of the proposed amendments.

Legal stakeholders recommended a robust decision-making process, in which the roles of the inspector and decision-maker would be separate, and an independent review mechanism would allow employers found non-compliant to challenge the finding.

Amendments made following stakeholder feedback

The following amendments to the proposal have been made following stakeholder feedback and further analysis:

  • replacing the proposed administrative review process that would have taken place after a finding of non-compliance and the issuance of an AMP and/or a ban with an opportunity for the employer to present written submissions responding to a preliminary finding of non-compliance before the final determination is made and his or her name is published;
  • retaining in the IRPR the existing justifications of good faith and unintentional errors (errors in interpretation, or accounting or administrative errors made by an employer);
  • allowing employers to voluntarily disclose non-compliance and receive a reduced consequence, possibly only a warning letter;
  • publishing the names of non-compliant employers indefinitely to maximize transparency by providing this information to foreign nationals seeking employment and the public; and
  • capping AMPs at $1M to help ensure that a total penalty remains in line with the administrative nature of the AMPs regime.

ESDC and CIC have consulted the Office of the Privacy Commissioner (OPC) on the identification and mitigation of privacy risks associated with these amendments, and the privacy impact is assessed as being minimal. The departments will complete Privacy Impact Assessment (PIA) reports by the end of fiscal year 2015–2016 to ensure privacy risks are identified and mitigated.

Rationale

The option to proceed with these regulatory amendments was selected because it fulfills the objectives articulated by the Government by encouraging compliance with TFWP/IMP conditions and responding proportionately to non-compliance. This option was selected over other alternatives because it most clearly responds to the issues identified with the current system by stakeholders, and it delivers the most benefits with the fewest costs.

Implementation, enforcement and service standards

These amendments come into force on December 1, 2015, to allow time for employers to understand and adjust to the new compliance regime. The new provisions will apply to any violations that occur on or after December 1, 2015.

ESDC and CIC will conduct outreach and education with employers and other stakeholders, with a communications plan which will include posting information on Government Web sites, to ensure that the new consequences for non-compliance are well understood prior to their application. The departments will also conduct internal calibration exercises on the new points system to ensure it is applied consistently between the two departments and across Canada.

Under the amendments, the names of employers found to have committed violations will continue to be published on a Government of Canada Web site. Public communications and guidance to employers will clarify that the intent is to publish these names for an indefinite period, since the IRPA and the IRPR do not specify how long this information must be published.

Following implementation, several indicators will be monitored to help assess the effectiveness of the new system in encouraging compliance with TFWP/IMP conditions. Indicators could include the rate of employer non-compliance, the rate of voluntary disclosure, the frequency and types of violations found, the amounts of AMPs imposed, and the lengths of bans imposed, among others. It is expected that non-compliance will decrease over time as more employers implement proactive compliance monitoring in response to the new consequences.

Contacts

Campion Carruthers
Director
Program Integrity Division
Temporary Foreign Worker Program
Employment and Social Development Canada
140 Promenade du Portage
Gatineau, Quebec
K1A 0J9
Email: campion.carruthers@hrsdc-rhdcc.gc.ca

Robert Judge
Director
Temporary Resident Policy and Program
Citizenship and Immigration Canada
365 Laurier Avenue West
Ottawa, Ontario
K1A 1L1
Email: robert.judge@cic.gc.ca

  • Footnote a
    S.C. 2008, c. 3, s. 2
  • Footnote b
    S.C. 2001, c. 27
  • Footnote c
    S.C. 2014, c. 39, ss. 309(2) and (3)
  • Footnote d
    S.C. 2001, c. 27
  • Footnote 1
    SOR/2002-227
  • Footnote 2
    Decision-making powers may be delegated by the Minister of Employment and Social Development to ESDC officials. Under the IRPA, the Minister of CIC may designate the exercise of authorities to CIC immigration officers.