Law Times

Page 8 September 24, 2018 • Law timeS www.lawtimesnews.com Improvements suggested for foreign worker program BY MICHAEL MCKIERNAN For Law Times T he federal government has some improvements to make in its regula- tion of the Temporary Foreign Worker Program, ac- cording to immigration lawyers. Since December 2015, amendments to the Immigra- tion and Refugee Protection Regulations have allowed Em- ployment and Social Develop- ment Canada to impose admin- istrative monetary penalties on employers found non-compliant with the TFWP on a sliding scale of fines. Depending on the severity of an offence, they can range from as little as $500 per violation up to $100,000 with an overall cap set at $1 million. In addition, employers could find themselves banned from using the foreign worker pro- grams for anywhere from one to 10 years per violation, with permanent exclusion an option for the most serious offenders. Details about violations and the employers who committed them are also published on a govern- ment website. The government has stepped up its inspection regime follow- ing a critical report released last year by federal Auditor General Michael Ferguson. Jacqueline Bart, principal at Toronto immigration law boutique BartLaw, says she wel- comes the additional level of ac- countability the enhanced pow- ers have brought for businesses using the TFWP. "In the past, employers were getting away with murder, but now we've got a system that has checks and balances and where employers have liabilities," she says. However, she says there are still some prioritization wrin- kles to be worked out. For example, Bart says, a cli- ent of hers got into a dispute with inspectors over discrepan- cies in the work permit of a com- pany's CEO. While the documents origi- nally submitted by the com- pany indicated it would lease a company car for his use, in real- ity, the employer reimbursed the CEO for a car leased in his own name, because the deal worked out cheaper. "We spent six months argu- ing over that, and you can get into some silly situations where the employer has promised to provide something to an em- ployee and it hasn't happened for legitimate reasons," Bart says. "It's the vulnerable foreign workers who come in to do live- in caregiver work or lower-paid jobs that need that additional level of care." Betsy Kane of Capelle Kane Immigration Lawyers PC says ESDC's heavy-handed approach to compliance and minor infrac- tions is undermining employers' confidence in the program. "It's a waste of government re- sources to be chasing pay stubs, taxi receipts and all kinds of stupid things they ask for, when there are employers out there who are actually taking advan- tage of people and clawing back wages under the table," she says. "In the vast majority of cases, there's nothing where the integ- rity of the program is at stake, and when people are penalized $1,000 or $2,000 for little things, the whole thing becomes kind of counterproductive. The amount of work that goes into a tiny fine like that is huge." Last year, Ferguson's annual spring report singled out the TFWP for oversight problems, scolding ESDC for its limited use of the new powers and for failing to ensure that temporary workers were hired "only as a last resort." "The Government of Canada takes its responsibility to protect temporary foreign workers from abuse very seriously," says ESDC spokesman Christopher Simard in a statement to Law Times. He says the inspection level is up to 2,800 per year out of the 22,000 employers who re- ceive a Labour Market Impact Assessment, with on-site and unannounced inspections also receiving a boost. Mario Bellissimo, a former chairman of the Canadian Bar Association's national immigra- tion law section, says the compli- ance regime is still evolving. "My sense is that, eventually, they will begin, if they haven't already, to use a more triaged model that recognizes the risk of non-compliance," he says. In his statement, Simard says ESDC has already taken steps to implement such a system, using a "predictive model that identi- fies high-risk employers hiring in sectors that have a higher risk of non-compliance." Calls to a tip line, which al- lows temporary foreign work- ers or other interested parties to anonymously report concerns, also factor into inspection deci- sions, Simard says. "All allegations of abuse re- ceived are reviewed and appro- priate action taken. When the allegations point to potential criminal activities, the informa- tion is forwarded to law enforce- ment agencies for further ac- tion," he adds. Of those inspected, Simard says, more than half are initially found non-compliant. "However, the department is committed to working with em- ployers to bring them into com- pliance and the vast majority do take corrective action to address any identified issues," he says. Bart says her firm and others who do defence work for em- ployers have noticed a signifi- cant upsurge in inspections and compliance reviews, describing them to clients as analogous to a tax audit by the Canada Revenue Agency. According to Bart, compli- ance issues are most likely to be found where employers com- pleted their own documentation or used a lawyer without exper- tise in immigration law. "They need to take compli- ance reviews very seriously be- cause any violation can have a big impact on a business," she adds. LT Jacqueline Bart says she welcomes the additional level of accountability that enhanced powers have brought for busi- nesses using the Temporary Foreign Worker Program. FOCUS FOCUS ON Immigration Law This is more than a phone book. 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