Law Times

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Price(s) subject to change without notice and subject to applicable taxes. 00235KX-A54104 Tough penalties for foreign worker program violators BY MICHAEL MCKIERNAN For Law Times T he time has come for the federal government to switch its focus away from compliance and enforcement when it comes to temporary for- eign workers, according to a To- ronto immigration lawyer. Joel Guberman, the founding partner at immigration boutique Guberman Garson Segal LLP, says tough new administrative monetary penalties for violators of the Temporary Foreign Work- er Program — which came into force Dec. 1 and follow hot on the heels of a fresh inspection drive to monitor compliance with the program — are an overreaction to a relatively minor problem. "The truth is that Canada is not a hotbed of illegal immigration, and the idea that Canada's biggest employers are cheating the system is a mirage. The vast majority are bona fide employers who will not hire foreign workers unless they need them," Guberman says. "Ob- viously, if an employer has said they will pay someone $100,000, and an investigation shows they're actually paying them $50,000, that's a problem, but it doesn't re- quire pages and pages of bureau- cratic nonsense to discover. The amount of effort it will take to administer one fine is ridiculous." Guberman says the number of hoops employers have to jump through just to take part in the TFWP, and the increasing dif- ficulty of acquiring a positive Labour Market Impact Assess- ment, make the new system of fines even less necessary. "There's so much screening that goes on at the outset that the likelihood of employers trip- ping up further down the road is remote," Guberman says. "The government has almost set itself up for failure, because when you look at what they will actually find, it's not going to stand up to a cost-benefit analysis." Much of the tightening of the TFWP took place under the pre- vious Conservative government, and Guberman says he's hope- ful the new Liberal regime will change its approach to make life easier for employers who face a skills shortage in Canada. "I like to think that the new government will take a cold, hard look at what the previous govern- ment did, and undo a lot of it. I know it makes sense on a popu- list level, but on a reality level, it makes no sense," he says. "I think it's draconian for the government to take this approach when Can- ada needs skilled people." Evan Green, a partner at To- ronto-based immigration law firm Green and Spiegel LLP, says he's seen no evidence the current government plans to reduce the "huge stress on compliance" in immigration law. In the mean- time, he says the TFWP has "become so onerous" for his cli- ents that they steer away from it wherever possible, but he warns that such an approach has con- sequences for the broader Cana- dian economy. "When employers are scared off from hiring temporary work- ers, that affects Canada's compet- itiveness internationally. There are many sectors where we have an enormous skills shortage. In the IT industry in particular, you can have a terrible time trying to find people," Green says. Howard Greenberg, the na- tional practice leader for immi- gration at KPMG Law LLP, says the shaky state of the Canadian economy makes it unlikely that the current government will make a significant departure from the aggressive approach to foreign worker compliance taken by its predecessor. "When the economy turns, and unemployment starts to rise, the natural predisposition is to move away from a policy that is generous to foreign workers, and instead to focus on enforcement, which is exactly what we're see- ing now," he says. The amendments, which in- troduced administrative mone- tary penalties to the Immigration and Refugee Protection Regula- tions, were unveiled last July, but they only came into force on Dec. 1. Under the new rules, employ- ers found non-compliant with the TFWP and the International Mobility Program, which in- volves foreign workers exempted from the LMIA requirement, face a sliding scale of penalties depending on the severity of their infraction. Financial penalties range from $500 to $100,000 per violation, up to a $1-million cap. In addition, employers could find themselves banned from us- ing the foreign worker programs 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 can also be pub- lished on a government web site, according to the regulations. Greenberg says the old rules, which allowed only for the im- position of a two-year ban, were limited and inf lexible when it came to ensuring compliance with the program. "In circumstances where there was really outrageous conduct, that could be seen as a bit of a slap on the wrist," he says. "For everyone else, the first disciplinary step can't be a two- year ban. For a major employer, like a big bank, that would be devastating, because the f low of human capital is critical to their success and growth." Despite the potential stiff- ness of the monetary penalties available under the regulations, Greenberg says the threat of be- ing named and shamed by the government could prove the most effective compliance tool, especially for companies with of- fices around the world. "That could have considerable consequences in terms of reputa- tional risk, both in Canada and worldwide," he says. "It's going to affect how a com- pany is viewed by the public, but it will also make their non-com- pliance known to every other immigration authority in the world." LT Howard Greenberg says the state of the Canadian economy makes it unlikely the current government will make dramatic changes to foreign worker compliance.

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