Regulatory Amendments and Ministerial Instructions Coming Into Force

Effective December 31, 2013, amendments to the Immigration and Refugee Protection Regulations (IRPR) come into force, and new Ministerial Instructions issued by the Minister of Employment and Social Development Canada (ESDC) come into effect that will strengthen the integrity of the Temporary Foreign Worker Program (TFWP).

As a result, employers who want to apply for a labour market opinion (LMO) as of December 31, 2013, need to be aware of the new powers and duties conferred on the Minister of ESDC, and the new conditions employers will be required to comply with, particularly:

1. ESDC will not have the authority to provide an LMO to an employer or a group of employers who, on a regular basis, offers striptease, erotic dance, escort services or erotic massages

• This decision is to protect foreign workers from the risk of abuse and exploitation.
• No LMO fee will be charged for applications not processed.

2. New conditions imposed on employers

The amendments to the IRPR will create new conditions employers will be required to comply with, particularly, they will be required to:

• retain any document that relates to compliance with the conditions set out in IRPR (and confirmed in the LMO letter and annexes) for a period of 6 years, beginning on the first day of the period of employment for which the work permit is issued to the foreign worker. For this same period, the employer must be able to demonstrate that any information they provided in the context of an LMO application was accurate;
• make reasonable efforts to provide a work place that is free of abuse; and
• hire or train, or make reasonable efforts to hire or train, Canadians or permanent residents, if that was one of the factors that led to the issuance of the work permit.

Starting December 31, 2013, employers will be required to complete an updated LMO application form that includes modified questions and additional attestations.

3. New authority to conduct inspections

ESDC/Service Canada will have the authority to conduct inspections to verify an employer’s compliance with the conditions in IRPR (and confirmed in the LMO letter and annexes) for a period of 6 years, beginning on the first day of the period of employment for which the work permit is issued to the foreign worker (unlike an employer compliance review (ECR) that occurs in the context of the assessment of an LMO application).

During an inspection, employers will be required to demonstrate that they are compliant with the conditions set out in IRPR (and confirmed in the positive LMO letter and annexes). In order to verify compliance with the conditions, ESDC/Service Canada will have the authority to:

• require employers to provide documents that relate to compliance with those conditions;
• conduct on-site inspections without a warrant (private dwellings excluded and in the majority of cases, advance notice will be given to employers); and
• interview foreign workers or Canadian employees, by consent.

Employers who have failed to comply with the conditions set out in IRPR (and confirmed in the LMO letter and annexes) will have the opportunity to provide a justification and to take corrective action, where applicable, before a determination of non-compliance is made.

Following a determination of non-compliance, employers will:

• be deemed ineligible to hire foreign workers for 2 years, and have their name, address and period of ineligibility published on a public ban list;
• be issued negative LMOs on any pending LMO applications; and/or
• may have previously-issued LMOs revoked.

Note: Changes to the ECRs, which are conducted as part of the LMO assessment at the time of an LMO application, have also been made, including increasing the period of time that ESDC may review an employer’s compliance (regarding wages, working conditions and occupation) from 2 to 6 years.

4. Ministerial Instructions to suspend and revoke LMOs, or refuse to process LMO applications

As a result of Ministerial Instructions, ESDC may suspend or revoke LMOs, or refuse to process LMO applications, under identified public policy considerations. Decisions governing the LMO suspension or revocation will not be taken lightly. Employers facing a suspension or revocation of their LMOs will be contacted and provided an opportunity to respond.

ESDC/Service Canada may also refuse to process LMO applications based on the public policy considerations provided in the Ministerial Instructions for selected sectors; regions; or occupational groups.

ESDC will publish on its website, in advance, any information related to any decision made by the government regarding the refusal to process LMO applications for any specified groups.

For more information visit the:

• Immigration and Refugee Protection Regulations and the Regulatory Impact Assessment Statement for an explanation on the intent of the regulatory amendments.
• Ministerial Instructions