The Federal Government of Canada has introduced amendments to the Immigration and Refugee Protection Regulations (the “Regulations”) to enhance protections for temporary foreign workers. These amendments, which came into effect on September 26, 2022, will bolster the employer compliance regime and increase employers’ legal obligations when hiring temporary foreign workers (“TFW”) under the International Mobility Program (“IMP”) and under the Temporary Foreign Worker Program (“TFWP”).

Enhanced Protections for Temporary Foreign Workers

The amendments provide greater protection for TFWs employed under the IMP or the TFWP. Employers should be aware of the following key amendments:

• Employers are now required to provide TFWs with current information regarding their rights in Canada. This information must be provided on or before their first day of work and made available throughout the duration of their employment. The information must be provided in either English or French, depending on the TFW’s choice.
  
  Information on TFWs’ rights hired under the IMP can here found here.
  
  Information on TFWs’ rights hired under the TFWP can be found here.
  
  • Considerations for Employers: Immigration, Refugees and Citizenship Canada (“IRCC”) has suggested that employers may provide the above website addresses to TFWs to advise them of their rights. However, TFWs who do not have internet access should instead be provided with a printout of the information. Employers should maintain a record of having provided this information to a TFW for a six year period.
    
    In order to ensure this information is readily available throughout the TFW’s employment period, employers should ensure that the information, whether electronic or physical, be easily visible and accessible to the TFW and available without the TFW having to request access to the information through the employer.
    
    Employers should also periodically check the above websites to ensure they are providing TFWs with the most up-to-date information.
• Under the TFWP, employers must now “commit” to having an employment agreement with the TFW when submitting a Labour Market Impact Assessment (“LMIA”) application. The signed employment agreement must be provided to the TFW on or before their first day of work.
  
  Similarly, under the IMP, employers must now attest to having provided an employment agreement to the TFW when submitting an ‘Offer of Employment to a Foreign National Exempt from an LMIA’ through IRCC’s Employer Portal.  
  
  For both programs, the occupation, wage, and working conditions included in the employment agreement and the offer of employment must match. In addition, the employment agreement must be signed by both parties and written in English or French, depending on the choice of the TFW. 
  
  • Considerations for Employers: When hiring through the IMP, employers should ensure they have provided a signed employment agreement including the wage, occupation, and working conditions of the role to the TFW before the Offer of Employment is submitted to IRCC’s Employer Portal.
    
    IRCC has advised that employers may use their existing agreement, if (i) it includes the same wage, occupation, and working conditions as the information submitted to IRCC’s Employer Portal; (ii) it is drafted in either English or French, depending on the TFW’s choice; and (iii) it is signed/dated by both parties.
    
    Employers should also retain records of having provided the TFW with a signed employment agreement for a six year period, in case of an inspection.
    
    We note that these amendments do not specifically address situations where no employment relationship is entered into in Canada, as is the case for TFWs entering Canada pursuant to an Agreement for Services or as part of a secondment. We will endeavour to provide an update on this if and when IRCC addresses how such situations will be treated.
• The definition of “abuse” included in the Regulations has now been expanded to include “reprisal”. Employers continue to have an obligation to make “reasonable efforts” to provide a workplace free of abuse for TFWs.
• Employers are barred from recovering or charging fees associated with the provision of LMIA-related services, employer compliance fees, and recruitment-related fees. Employers also have a responsibility to make sure recruiters acting on their behalf do not recover or charge such fees.
  
  • Considerations for Employers: IRCC has given a broad definition to recruitment-related fees and indicated that these include any fees and/or costs incurred during the recruitment process to “secure employment or placement” for a TFW, including fees related to recruiting, referral, and/or placement services.
    
    IRCC has also indicated that employers will be responsible for showing that they made “best efforts” to ensure that fees have not be charged to or recovered from a TFW, and that recruiters acting on their behalf have similarly not charged or recovered such fees, either directly or indirectly.
    
    Importantly, IRCC has clarified that fees relating to temporary visas, temporary resident permits, and work permits are not covered by this amendment.
• If a TFW becomes ill or is injured at the workplace, the employer must make “reasonable efforts” to provide the individual with access to health care services.
  
  Subject to very limited exceptions, employers hiring TFWs under the TFWP must now acquire and cover the fees for private health insurance which covers emergency medical care during the period for which the TFW is not covered under a provincial or territorial health insurance system.
  
  • Considerations for Employers: IRCC has indicated that “reasonable efforts” can include providing a TFW with time off to seek medical attention; making a telephone available to the TFW to call emergency services; providing the TFW with information regarding how to obtain health care; and assisting the TFW to obtain a health care provider.
    
    Employers hiring TFWs under the TFWP should ensure they provide private health insurance which covers emergency medical care for the entirety of the period where the TFW is not covered under a provincial or territorial health care system, and also be aware of any differences which may exist between various provincial health care systems.

Improving Integrity of Programs

• IRCC and Employment and Social Development Canada (“ESDC”) now have the power to require any third party to provide any document in their possession which relates to an employer’s compliance with regulatory conditions, without the consent of the employer and/or worker.
• ESDC may now suspend the processing of an LMIA application where there is reason to suspect that an employer is non-compliant with certain enumerated conditions, and where there is reason to suspect that the health and safety of a TFW would be put at risk if a work permit were issued to the TFW.
• For employers who have not employed a TFW under the TFWP in the previous six years, ESDC will now consider the following when assessing an LMIA application: (i) whether an employer has made “reasonable efforts” to provide a workplace free of abuse; and (ii) whether the employer is an affiliate of an employer ineligible for the TFWP or has an unpaid administrative monetary penalty. This assessment will consider the period from two years prior to the day on which the LMIA application is received and until the LMIA is issued.
• ESDC will now also consider the following factors independently when assessing an LMIA application: (i) whether the wages included in the offer of employment are consistent with the applicable prevailing wage; and (ii) whether the TFW’s employment is likely to adversely impact the settlement of any labour disputes or the employment of any person involved in the labour dispute. If these two factors are not met, the LMIA will be automatically refused.
  
  • Considerations for Employers: When applying for an LMIA, employers should ensure that the wage included in the offer of employment is consistent with the applicable prevailing wage for the role in the region where the TFW will work. Employers should be aware that a prevailing wage may change, and should periodically check the prevailing wage while in the process of preparing an LMIA application.
    
    However, we expect that an LMIA application will not be automatically refused on the basis of the wage not meeting the applicable prevailing wage in situations where the wage is subject to a collective agreement.   
• ESDC has the authority to collect employers’ and TFWs’ personal information to verify employer compliance with conditions under the IMP.  

Other Key Amendments

• The amendments also confirm that employers must comply with any applicable provincial and/or territorial employment and recruitment laws in the province or territory where the TFW will work, specifically those that relate to TFWs.
  
  • Considerations for Employers: Employers should be aware that some provinces have a requirement for employers and/or recruiters to be registered/licensed if employing and/or recruiting TFWs. Employers should ensure they are adhering to such requirements when applying to the IMP or the TFWP and when seeking to hire a TFW.

Employers should carefully review the above-noted amendments to ensure they understand their legal obligations when hiring a TFW under either the IMP or the TFWP, and to ensure they remain compliant with the conditions of both programs.  

A copy of the Federal Government’s full news release outlining these amendments can be found here.

If you have any questions about this topic, or any questions relating to workplace law generally, please do not hesitate to contact a Mathews Dinsdale lawyer.