Temporary foreign workers rules: In need of a rethink

By Doug Beazley Web Only

Temporary foreign workers rules: In need of a rethink

 

Every lawyer working in the immigration field has a story to tell about the Temporary Foreign Worker program and the Labour Market Impact Assessment system. Few seem to end happily.

“I represented a medical clinic,” says Barbara Jo Caruso, co-founder of the Toronto-based Corporate Immigration law firm. The clinic had a specialist — an immigrant — employed on a work permit. The clinic’s owner-operator wanted to keep him, so he applied for a Labour Market Impact Assessment — the federal government’s tool for ensuring qualified Canadians get first crack at any job openings.

The owner-operator, says Caruso, jumped every hurdle in the application process, but mistakenly left some minor pieces of information off the job ad posted on his website — a tiny error that caused his entire application to be turned down.

“So this professional’s work permit expired, his patients had to go and find another clinic and his employer had to re-advertise everything,” says Caruso. “The employer was audited. He lost seven months. He lost patients, his patients lost the services of a professional they’d grown to depend on.”

“I tell clients to be prepared to wait at least six months before they can hire someone,” says Marina Sedai, an immigration lawyer based in Vancouver. “I know of one restaurant chain that had to close one of its outlets because it couldn’t get (TFWs) in time.”

Business plans sent sideways, profits foregone, valuable employees lost to bureaucratic intransigence — those in the growing chorus of program critics seem to be singing from the same song sheet.

Those critics all point to the former Conservative government’s overhaul of the program in 2014. Stung by a series of scandals involving companies accused of hiring TFWs while laying off Canadians (and a report by the C.D. Howe Institute accusing the TFW program of increasing unemployment in Western Canada), Ottawa boosted fines and fees, tightened up advertising requirements, ramped up workplace inspections, barred businesses in most communities with high unemployment rates from accessing the system and warned many employers that they would have to phase down the number of TFWs they employ to no more than 10 per cent of their total workforce by July 1 of this year.

The result, according to many immigration lawyers, has been chaos: long application timelines, applications tossed aside for minor errors, punitive fines of up to $1 million for violations, warrantless workplace inspections and businesses with jobs going begging. Many assume the 2014 reforms were intended to make the TFW program harder to access; then-Employment Minister Jason Kenney indicated as much when he said the program had been “overused” by some businesses.

“I don’t know if I would say (the government) overreacted,” says Stéphane Duval of McCarthy Tétrault in Montreal, chair of the Canadian Bar Association’s immigration law section. “But they certainly failed to pinpoint the problem. They should have been aiming at specific categories of employees — not everyone.”

Worst of all — from the perspective of businesses still forced to use the TFW program — is how arbitrary it has become. Nobody outside the Ministry of Employment, Workforce Development and Labour seems to know what sort of guidelines are informing enforcement. In a 2015 decision, a federal court judge ruled that an Employment and Social Development Canada officer “fettered her discretion” by scuttling an LMIA application over the petty lapse of a missing business address — an apparent case of department guidelines taking precedence over law.

“I’ve had to file Access to Information requests to get information on the guidelines being given to officers to follow in interpreting the law,” says Vance Langford of Field Law in Calgary. “There used to be a manual but it’s been suppressed — they’ll tell you it doesn’t exist anymore.

“ESDC always wanted teeth, like the (Canada Revenue Agency), and they were suddenly given tons of power. It’s a pendulum. Before 2008 everyone was in favour of the TFW program, because we needed the people. Then in 2013 the government started getting hammered on hiring scandals, and the pendulum started swinging.”

Now, it looks to be swinging back. In a paper published in April, the CBA laid out the problems with the TFW and LMIA systems and recommended the following fixes, among others: eliminating caps on the number of TFWs in a single workplace; training officers to stick to the law (while using their discretion in cases where violations are minor); speeding up processing; cutting fees; cutting fines; publishing department guidelines; and redirecting resources away from enforcement and toward processing.

So far, the new Liberal government seems to be listening. Loosening the rules on TFWs while the economy is still fragile could turn out to be political poison, but the Trudeau government seems inclined to admit the current system isn’t working as it should. In February, Employment, Workforce Development and Labour Minister MaryAnn Mihychuk punted the issue to a parliamentary committee for review; they’re hoping to have recommendations for the minister by mid- to late June. In April, she suggested the department might put off the July 1 deadline set by the previous government for employers to cull their TFW count to no more than 10 per cent of their total workforces (having already exempted seafood processors from the 10 per cent cap, she could hardly do otherwise).

“Look, the previous government … their hearts were in the right place,” says Brian May, the Liberal MP chairing the committee reviewing the TFW program. “There was some horrific abuse going on in the program that compelled changes. But what they tried to do was to create a one-size-fits-all program, which ultimately ended up fitting nobody.”

May thinks one option may be to break the program down into smaller, more targeted services. “Lots of people are using the TFW program who don’t fit the profile of TFWs — like video-game developers looking for high-skill people. There might be an opportunity here to work with Immigration and come at the problem from two different angles.”

For their part, immigration lawyers are happy just to be having the conversation.

“The government seems to be listening to us, and I’m thrilled,” says Sedai. “There seems to be this great change in mood, in attitude. We have no timeline, of course, but I’m hopeful we’ll see some changes before the end of the year.”

 

Doug Beazley is a contributor based in Ottawa.

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