Regulations Amending the Immigration and Refugee Protection Regulations (Temporary Foreign Workers): SOR/2022-142

Canada Gazette, Part II, Volume 156, Number 14

Registration
SOR/2022-142 June 21, 2022

IMMIGRATION AND REFUGEE PROTECTION ACT

P.C. 2022-706 June 20, 2022

Whereas, under subsection 5(2)^{footnote a} of the Immigration and Refugee Protection Act ^{footnote b}, the Minister of Citizenship and Immigration has caused a copy of the proposed Regulations Amending the Immigration and Refugee Protection Regulations (Temporary Foreign Workers), substantially in the annexed form, to be laid before each House of Parliament;

Therefore, Her Excellency the Governor General in Council, on the recommendation of the Minister of Citizenship and Immigration, under subsections 4(2.1)^{footnote c} and 5(1) and sections 32^{footnote d} and 150.1^{footnote e} of the Immigration and Refugee Protection Act b, makes the annexed Regulations Amending the Immigration and Refugee Protection Regulations (Temporary Foreign Workers).

Regulations Amending the Immigration and Refugee Protection Regulations (Temporary Foreign Workers)

Amendments

1 Subsection 82(1) of the Immigration and Refugee Protection Regulations ^{footnote 1} is replaced by the following:

Definition of arranged employment

82 (1) In this section, arranged employment means an offer of employment that is made by a single employer other than an embassy, high commission or consulate in Canada or an employer who is referred to in subparagraph 200(3)(h)(ii) or (iii), that is for continuous full-time work in Canada having a duration of at least one year after the date on which a permanent resident visa is issued, and that is in an occupation that is listed in Skill Type 0 Management Occupations or Skill Level A or B of the National Occupational Classification matrix.

2 (1) Clause 87.2(3)(d)(ii)(D) of the Regulations is replaced by the following:

(D) the offer is made by up to two employers who are specified on the work permit, none of whom is an embassy, high commission or consulate in Canada or an employer who is referred to in subparagraph 200(3)(h)(ii) or (iii),

(2) Clause 87.2(3)(d)(iii)(C) of the Regulations is replaced by the following:

(C) the offer is made by up to two employers who are specified on the work permit, none of whom is an embassy, high commission or consulate in Canada or an employer who is referred to in subparagraph 200(3)(h)(ii) or (iii), and

(3) Clause 87.2(3)(d)(iv)(B) of the Regulations is replaced by the following:

(B) the offer is made by up to two employers, none of whom is an embassy, high commission or consulate in Canada or an employer who is referred to in subparagraph 200(3)(h)(ii) or (iii), and

3 Paragraph 183(1)(b.2) of the Regulations is replaced by the following:

• (b.2) if authorized to work by this Part or Part 11, to not enter into an employment agreement, or extend the term of an employment agreement, with an employer who is referred to in subparagraph 200(3)(h)(ii) or (iii);

4 Paragraph 196.1(b) of the Regulations is replaced by the following:

• (b) referred to in subparagraph 200(3)(h)(ii) or (iii).

5 (1) Section 196.2 of the Regulations is amended by striking out “and” at the end of paragraph (c), by adding “and” at the end of paragraph (d) and by adding the following after paragraph (d):

• (e) reprisals.

(2) Section 196.2 of the Regulations is renumbered as subsection 196.2(1) and is amended by adding the following:

Reprisal

(2) For the purpose of subsection (1) reprisal consists of any measure, including the following, that is taken by or on behalf of an employer against a foreign national referred to in subparagraph 200(1)(c)(ii.1) or (iii) – and that adversely affects the foreign national’s employment or working conditions – because the foreign national has reported that the conditions set out in section 209.2 or 209.3 have not been complied with or has in good faith cooperated with an inspection conducted under section 209.7, 209.8 or 209.9:

• (a) a disciplinary measure;
• (b) a demotion;
• (c) a dismissal; or
• (d) any threat to take any of the measures mentioned above.

6 (1) Subparagraphs 200(1)(c)(ii.1) and (iii) of the Regulations are replaced by the following:

• (ii.1) intends to perform work described in section 204 or 205 and has an offer of employment to perform that work or is described in section 207 and has an offer of employment, and an officer has determined, on the basis of any information provided on the officer’s request by the employer making the offer and any other relevant information, that the offer is genuine under subsection (5), or
• (iii) has been offered employment, and an officer has made a positive determination under paragraphs 203(1)(a) to (g); and

(2) Subparagraph 200(3)(h)(i) of the Regulations is repealed.

(3) Paragraph 200(5)(d) of the Regulations is replaced by the following:

• (d) the past compliance of the employer, or any person who recruits the foreign national for the employer, with the federal or provincial laws that regulate the employment or recruitment of employees, including foreign nationals, in the province in which it is intended that the foreign national will work.

7 (1) Subsection 203(1) of the Regulations is amended by striking out “and” at the end of paragraph (d) and by replacing paragraph (e) with the following:

• (e) the employer
  • (i) has not, directly or indirectly, charged or recovered from the foreign national the fees referred to in subsection 315.2(1) or any fees related to the recruitment of the foreign national, with the exception of the fees referred to in subsections 296(1), 298(1) and 299(1) and fees related to the recruitment of the foreign national that are authorized to be charged or recovered under an international agreement between Canada and one or more countries concerning seasonal agricultural workers,
  • (ii) ensured that any person who recruits the foreign national for the employer did not, directly or indirectly, charge or recover from the foreign national the fees referred to in subsection 315.2(1) or any fees related to the recruitment of the foreign national, with the exception of the fees referred to in subsections 296(1), 298(1) and 299(1) and fees related to the recruitment of the foreign national that are authorized to be charged or recovered under an international agreement between Canada and one or more countries concerning seasonal agricultural workers;
• (f) in the case where the employer has not employed a foreign national referred to in subparagraph 200(1)(c)(iii) during the six years before the day on which the request for an assessment made under subsection (2) is received by the Department of Employment and Social Development, during the period beginning two years before the day on which the request for an assessment is received and ending on the day that an assessment is provided, when the employer was actively engaged in the business for which the employer has provided information under this subsection and subsection (2.1), the employer
  • (i) made reasonable efforts to provide a workplace that is free of abuse, and
  • (ii) was not an affiliate of an employer referred to in subparagraphs 200(3)(h)(ii) or (iii); and
• (g) the employer committed
  • (i) to conclude with the foreign national, on or before the first day of work of the foreign national that is during the period of employment for which the work permit is issued to them, an employment agreement that
  • (A) provides for employment in the same occupation and the same wages and working conditions as those set out in the offer of employment,
  • (B) is drafted in the foreign national’s chosen official language of Canada, and
  • (C) is signed by both the employer and the foreign national,
  • (ii) to provide the foreign national, on or before the first day of work of the foreign national that is during the period of employment for which the work permit is issued to them, a copy of the employment agreement referred to in subparagraph (i),
  • (iii) to not, directly or indirectly, charge or recover from the foreign national the fees referred to in subsection 315.2(1) or any fees related to the recruitment of the foreign national, with the exception of the fees referred to in subsections 296(1), 298(1) and 299(1) and fees related to the recruitment of the foreign national that are authorized to be charged or recovered under an international agreement between Canada and one or more countries concerning seasonal agricultural workers, and
  • (iv) to ensure that any person who recruits the foreign national for the employer does not, directly or indirectly, charge or recover from the foreign national the fees referred to in subsection 315.2(1) or any fees related to the recruitment of the foreign national, with the exception of the fees referred to in subsections 296(1), 298(1) and 299(1) and fees related to the recruitment of the foreign national that are authorized to be charged or recovered under an international agreement between Canada and one or more countries concerning seasonal agricultural workers.

(2) Subsection 203(1.1) of the Regulations is replaced by the following:

Effect on labour market

(1.1) For the purposes of paragraph (1)(b), the employment of the foreign national is unlikely to have a positive or neutral effect on the labour market in Canada if

• (a) the wages set out in the offer of employment are not consistent with the prevailing wage rate for the occupation; or
• (b) the employment of the foreign national is likely to adversely affect the settlement of any labour dispute in progress or the employment of any person involved in the dispute.

(3) The portion of subsection 203(2) of the Regulations before paragraph (a) is replaced by the following:

Assessment on request

(2) Subject to subsection (2.02), the Department of Employment and Social Development must provide the assessment referred to in subsection (1) on the request of an officer or an employer or group of employers, none of whom is an employer who

(4) Paragraph 203(2)(b) of the Regulations is replaced by the following:

• (b) is referred to in subparagraph 200(3)(h)(ii) or (iii).

(5) Subsection 203(2.1) of the Regulations is replaced by the following:

Suspension of processing of requests

(2.02) If any of the circumstances set out in section 209.5 exist, the processing of a request for an assessment under subsection (2) is suspended so long as the Department of Employment and Social Development has a reason to suspect that

• (a) the employer who made the request is not complying with or has not complied with any of the conditions set out in subparagraph 209.3(1)(a)(i), 209.3(1)(a)(iv) with regard to the working conditions referred to in that subparagraph, 209.3(1)(a)(v) or 209.3(1)(a)(vii) to 209.3(1)(a)(xii); and
• (b) the employer’s failure to comply with any of the conditions referred to in paragraph (a) would put at serious risk the health or safety of the foreign national, if the work permit was issued.

Basis of Assessment

(2.1) The assessment provided by the Department of Employment and Social Development on the matters set out in paragraphs (1)(a) to (g) must be based on any information provided by the employer making the offer and any other relevant information.

(6) The portion of subsection 203(3) of the Regulations before paragraph (a) is replaced by the following:

Factors — effect on labour market

(3) An assessment provided by the Department of Employment and Social Development with respect to the matters referred to in paragraph (1)(b) must, unless the employment of the foreign national is unlikely to have a positive or neutral effect on the labour market in Canada as a result of the application of subsection (1.01) or (1.1) be based on the following factors:

(7) Paragraph 203(3)(d) of the Regulations is replaced by the following:

• (d) whether the working conditions offered to the foreign national meet generally accepted Canadian standards;

(8) Paragraph 203(3)(f) of the Regulations is repealed.

(9) Subsections 203(5) and (6) of the Regulations are replaced by the following:

Affiliate

(5) For the purposes of this section, an affiliate includes

• (a) an employer that is controlled by another employer;
• (b) two employers that are under common control; or
• (c) employers that are not operated at arm’s length.

Control

(6) For the purposes of subsection (5), control, whether direct or indirect, exercised or not, includes

• (a) common ownership;
• (b) common management;
• (c) common interests;
• (d) shared facilities or equipment; or
• (e) common use of services of employees.

8 Section 209.11 of the Regulations is amended by striking out “and” at the end of paragraph (c), by adding “and” at the end of paragraph (d) and by adding the following after paragraph (d):

• (e) an attestation that
  • (i) the employer has entered into an employment agreement with the foreign national that
  • (A) provides for employment in the same occupation and the same wages and working conditions as those set out in the offer of employment,
  • (B) is drafted in the foreign national’s chosen official language of Canada, and
  • (C) is signed by both the employer and the foreign national,
  • (ii) the employer has provided a copy of the employment agreement referred to in subparagraph (i) to the foreign national,
  • (iii) the employer has not, directly or indirectly, charged or recovered from the foreign national the fee referred to in subsection 303.1(1) or any fees related to the recruitment of the foreign national, with the exception of the fees referred to in subsections 296(1), 298(1) and 299(1), and
  • (iv) the employer has ensured that any person who recruited the foreign national for the employer did not, directly or indirectly, charge or recover from the foreign national the fee referred to in subsection 303.1(1) or any fees related to the recruitment of the foreign national, with the exception of the fees referred to in subsections 296(1), 298(1) and 299(1).

9 (1) Subparagraph 209.2(1)(a)(ii) of the Regulations is replaced by the following:

• (ii) the employer must comply with the federal or provincial laws that regulate the employment or recruitment of employees, including foreign nationals, in the province in which the foreign national works,
• (ii.1) the employer must make available to the foreign national, in both official languages of Canada, the information referred to in paragraph (a.1),

(2) Subparagraph 209.2(1)(a)(vi) of the French version of the Regulations is replaced by the following:

• (vi) il ne peut, dans le cas où il emploie un étranger visé par une loi provinciale qui régit la santé publique adoptée en réponse à la COVID-19, prendre de mesure qui empêche l’étranger de respecter les exigences qui y sont prévues, notamment exiger de l’étranger qu’il fasse quelque chose qui y est contraire,

(3) Paragraph 209.2(1)(a) of the Regulations is amended by striking out “and” at the end of subparagraph (vi) and adding the following after subparagraph (vii):

• (viii) the employer must make reasonable efforts to provide access to health care services when the foreign national is injured or becomes ill at the workplace,
• (ix) the employer must not, directly or indirectly, charge or recover from the foreign national the fee referred to in subsection 303.1(1) or any fees related to the recruitment of the foreign national, with the exception of the fees referred to in subsections 296(1), 298(1) and 299(1), and
• (x) the employer must ensure that any person who recruited the foreign national for the employer does not, directly or indirectly, charge or recover from the foreign national the fee referred to in subsection 303.1(1) or any fees related to the recruitment of the foreign national, with the exception of the fees referred to in subsections 296(1), 298(1) and 299(1); and

(4) Subsection 209.2(1) of the Regulations is amended by adding the following after paragraph (a):

• (a.1) on or before the foreign national’s first day of work that is during the period of employment for which the work permit is issued to the foreign national, the employer must provide the foreign national with a copy in their chosen official language of Canada of the most recent information with respect to the foreign national’s rights in Canada that is made available by the Government of Canada for that purpose; and

(5) Subsection 209.2(3) of the Regulations is replaced by the following:

Justification

(3) A failure to comply with any of the conditions set out in subparagraphs (1)(a)(i) to (viii) and paragraph (1)(a.1) is justified if it results from

• (a) a change in federal or provincial law;
• (b) a change to the provisions of a collective agreement;
• (c) the implementation of measures by the employer in response to a dramatic change in economic conditions that directly affected the business of the employer, provided that the measures were not directed disproportionately at foreign nationals employed by the employer;
• (d) an error in interpretation made in good faith by the employer with respect to its obligations to a foreign national, if the employer subsequently provided compensation — or if it was not possible to provide compensation, made sufficient efforts to do so — to all foreign nationals who suffered a disadvantage as a result of the error;
• (e) an accounting or administrative error made by the employer, if the employer subsequently provided compensation — or if it was not possible to provide compensation, made sufficient efforts to do so — to all foreign nationals who suffered a disadvantage as a result of the error;
• (f) circumstances similar to those set out in paragraphs (a) to (e);
• (g) superior force; or
• (h) an error in interpretation made in good faith by the employer with respect to its compliance with the conditions set out in any of subparagraphs (1)(a)(v) and (vi).

Justification

(3.1) A failure to comply with any of the conditions set out in subparagraphs (1)(a)(ix) and (x) is justified if the employer

• a) made all reasonable efforts to comply with the conditions; and
• b) subsequently provided full compensation to the foreign national for the fees incorrectly charged or recovered.

10 (1) Subparagraph 209.3(1)(a)(ii) of the Regulations is replaced by the following:

• (ii) the employer must comply with the federal or provincial laws that regulate the employment or recruitment of employees, including foreign nationals, in the province in which the foreign national works,
• (ii.1) the employer must make available to the foreign national, in both official languages of Canada, the information referred to in paragraph (a.1),

(2) Subparagraphs 209.3(1)(a)(vii) to (xi) of the French version of the Regulations are replaced by the following:

• (vii) il ne peut, dans le cas où il emploie un étranger visé par un règlement, un décret ou un arrêté pris en vertu de la Loi sur les mesures d’urgence ou de la Loi sur la mise en quarantaine, prendre de mesure qui empêche celui-ci de respecter les exigences qui y sont prévues, notamment exiger de l’étranger qu’il fasse quelque chose qui y est contraire,
• (viii) il ne peut, dans le cas où il emploie un étranger visé par une loi provinciale qui régit la santé publique adoptée en réponse à la COVID-19, prendre de mesure qui empêche celui-ci de respecter les exigences qui y sont prévues, notamment exiger de l’étranger qu’il fasse quelque chose qui y est contraire,
• (ix) dans le cas où il lui fournit un logement, il doit — pendant toute la période de quarantaine à laquelle est tenu l’étranger conformément à un règlement, un décret ou un arrêté pris en vertu de la Loi sur les mesures d’urgence ou de la Loi sur la mise en quarantaine — fournir un logement qui est séparé de celui fourni aux personnes qui ne sont pas en quarantaine et qui permet à l’étranger de garder une distance d’au moins deux mètres avec les autres,
• (x) il lui fournit, dans le cas où il fournit un logement à un étranger visé par un règlement, un décret ou un arrêté pris en vertu de la Loi sur les mesures d’urgence ou de la Loi sur la mise en quarantaine, des produits de nettoyage pour nettoyer et désinfecter régulièrement le logement,
• (xi) il lui fournit, dans le cas où il fournit un logement à un étranger contaminé par la COVID- 19 ou qui en présente des signes ou des symptômes, un logement qui a une chambre individuelle, avec accès à une salle de bain privée, qui lui permet de s’isoler,

(3) Paragraph 209.3(1)(a) of the Regulations is amended by striking out “and” at the end of subparagraph (xi) and by adding the following after subparagraph (xii):

• (xiii) the employer, except in the case of an employer who employs a foreign national to perform work under an international agreement between Canada and one or more countries concerning seasonal agricultural workers and the agreement includes health insurance, must obtain and pay for private health insurance that covers emergency medical care, for any period during which the foreign national is not covered by the applicable provincial health insurance system,
• (xiv) the employer must make reasonable efforts to provide access to health care services when the foreign national is injured or becomes ill at the workplace,
• (xv) the employer must not, directly or indirectly, charge or recover from the foreign national the fees referred to in subparagraph (xiii) or subsection 315.2(1) or any fees related to the recruitment of the foreign national, with the exception of the fees referred to in subsections 296(1), 298(1) and 299(1) and fees related to the recruitment of the foreign national that are authorized to be charged or recovered under an international agreement between Canada and one or more countries concerning seasonal agricultural workers, and
• (xvi) the employer must ensure that any person who recruited the foreign national for the employer does not, directly or indirectly, charge or recover from the foreign national the fees referred to in subparagraph (xiii), subsection 315.2(1) or any fees related to the recruitment of the foreign national, with the exception of the fees referred to in subsections 296(1), 298(1) and 299(1) and fees related to the recruitment of the foreign national that are authorized to be charged or recovered under an international agreement between Canada and one or more countries concerning seasonal agricultural workers;

(4) Subsection 209.3(1) of the Regulations is amended by adding the following after paragraph (a):

• (a.1) on or before the foreign national’s first day of work that is during the period of employment for which the work permit is issued to the foreign national, the employer must provide the foreign national with a copy in their chosen official language of Canada of the most recent information with respect to the foreign national’s rights in Canada that is made available by the Government of Canada for that purpose; and

(5) Subsection 209.3(3) of the Regulations is replaced by the following:

Justification

(3) A failure to comply with any of the conditions set out in subparagraphs (1)(a)(i) to (xiv) and paragraphs (1)(a.1) and (b) is justified if it results from a:

• (a) a change in federal or provincial law;
• (b) a change to the provisions of a collective agreement;
• (c) the implementation of measures by the employer in response to a dramatic change in economic conditions that directly affected the business of the employer, provided that the measures were not directed disproportionately at foreign nationals employed by the employer;
• (d) an error in interpretation made in good faith by the employer with respect to its obligations to a foreign national, if the employer subsequently provided compensation — or if it was not possible to provide compensation, made sufficient efforts to do so — to all foreign nationals who suffered a disadvantage as a result of the error;
• (e) an accounting or administrative error made by the employer, if the employer subsequently provided compensation — or if it was not possible to provide compensation, made sufficient efforts to do so — to all foreign nationals who suffered a disadvantage as a result of the error;
• (f) circumstances similar to those set out in paragraphs (a) to (e);
• (g) superior force; or
• (h) an error in interpretation made in good faith by the employer with respect to its compliance with the conditions set out in any of subparagraphs (1)(a)(vii) to (xi).

(6) Section 209.3 of the Regulations is amended by adding the following after subsection (4):

Justification

(5) A failure to comply with any of the conditions set out in subparagraphs (1)(a)(xv) and (xvi) is justified if the employer

• (a) made all reasonable efforts to comply with the condition; and
• (b) subsequently provided full compensation to the foreign national for the fees that were incorrectly charged or recovered.

11 Paragraph 209.4(1)(b) of the Regulations is replaced by the following:

• (b) provide any documents that are required under paragraphs 209.7(1)(a) and (b); and

12 (1) Paragraph 209.5(a) of the French version of the Regulations is replaced by the following:

• a) l’agent ou le ministre de l’Emploi et du Développement social a des motifs de soupçonner que l’employeur ne respecte pas ou n’a pas respecté l’une des conditions prévues aux articles 209.2 ou 209.3;

(2) Paragraphs 209.5 (b) and (c) of the Regulations are replaced by the following:

• (b) the employer has not complied with any of the conditions set out in section 209.2 or 209.3 in the past;
• (c) the employer is chosen as part of a random verification of compliance with the conditions set out in sections 209.2 or 209.3;

13 (1) Subsection 209.7(1) of the Regulations is amended by striking out “and” at the end of paragraph (a) and by adding “and” at the end of paragraph (b) and by adding the following after paragraph (b):

• (c) an officer may, for the purpose of verifying compliance with the conditions set out in section 209.2, require any individual or entity to provide them with any document in their possession that relates to the employer’s compliance with those conditions; and
• (d) the Minister of Employment and Social Development may, for the purpose of verifying compliance with the conditions set out in section 209.3, require any individual or entity to provide them with any document in their possession that relates to the employer’s compliance with those conditions.

(2) Subsection 209.7(2) of the Regulations is replaced by the following:

Minister of Employment and Social Development

(2) The Minister of Employment and Social Development may exercise the powers set out in paragraphs (1)(a) and (c) on the request of an officer.

14 Section 209.92 of the Regulations and the heading before it are replaced by the following:

Collection and Disclosure of Information

Collection of information

209.911 The Minister of Employment and Social Development may collect information related to an employer’s compliance with the conditions set out in section 209.2.

Disclosure of information

209.92 An officer may, for the purposes of determining whether a work permit is to be issued to a foreign national under subsection 200(1), of making a determination under paragraphs 203(1)(a) to (g), if applicable, or of verifying compliance with the conditions set out in sections 209.2 to 209.4, disclose to the Minister of Employment and Social Development and to the competent authorities of the provinces concerned information that relates to an application for a work permit or to an employer’s compliance with the conditions set out in sections 209.2 to 209.4.

15 The portion of subsection 209.95(1) of the Regulations before paragraph (a) is replaced by the following:

Violations

209.95 (1) An employer referred to in subsection 209.2(1) or 209.3(1) who fails to comply with one of the conditions set out in the provisions listed in column 1 of Table 1 of Schedule 2 — if the failure to do so is not justified under subsection 209.2(3), (3.1) or (4), 209.3(3), (4) or (5), or 209.4(2) — commits a violation and

16 (1) Subsection 209.96(1) of the Regulations is replaced by the following:

Separate violation — multiple foreign nationals

209.96 (1) A failure to comply — that is not justified under subsection 209.2(3), (4) or (5), 209.3(3), (4) or (5) or 209.4(2) — with a condition that affects more than one foreign national constitutes a separate violation for each foreign national affected.

(2) Subsection 209.96(4) of the Regulations is replaced by the following:

Separate violation — abuse

(4) A failure to comply — that is not justified under subsection 209.2(3) or 209.3(3) — with the condition set out in item 17 of Table 1 of Schedule 2 with respect to any one of the elements set out in paragraphs 196.2(1)(a) to (e) constitutes a separate violation.

17 Section 209.97 of the Regulations is replaced by the following:

Provisions

209.97 A failure to comply — that is not justified under subsection 209.2(3), (4) or (5), 209.3(3), (4) or (5) or 209.4(2) — with a condition that is set out in one of the provisions listed in column 1 of Table 1 of Schedule 2 is classified as a violation of Type A, Type B or Type C as set out in column 3 of that Table.

18 Subsections 209.993(1) and (2) of the Regulations are replaced by the following:

Notice — issuance by officer

209.993 (1) If an officer assesses, on the basis of information obtained by any officer or the Minister of Employment and Social Development during the exercise of the powers set out in sections 209.6 to 209.8 and any other relevant information, that an employer has committed a violation because that employer failed to comply with one of the conditions set out in the provisions listed in column 1 of Table 1 of Schedule 2 and the failure to do so was not justified under subsection 209.2(3), (4) or (5) or 209.4(2), the officer must issue a notice of preliminary finding to the employer.

Notice — issuance by Minister

(2) If the Minister of Employment and Social Development assesses, on the basis of information obtained during the exercise of the powers set out in sections 209.6, 209.7 and 209.9 and any other relevant information, that an employer has committed a violation because that employer failed to comply with one of the conditions set out in the provisions listed in column 1 of Table 1 of Schedule 2 and the failure to do so was not justified under subsection 209.3(3), (4) or (5) or 209.4(2), that Minister must issue a notice of preliminary finding to the employer.

19 Subsections 209.996(1) and (2) of the Regulations are replaced by the following:

Notice — issuance by officer

209.996 (1) Subject to subsection (3), if an officer determines, on the basis of information obtained by any officer or the Minister of Employment and Social Development during the exercise of the powers set out in sections 209.6 to 209.8 and any other relevant information, that an employer has committed a violation because that employer failed to comply with one of the conditions set out in the provisions listed in column 1 of Table 1 of Schedule 2 and the failure to do so was not justified under subsection 209.2(3), (4) or (5) or 209.4(2), the officer must issue a notice of final determination to the employer.

Notice — issuance by Minister

(2) Subject to subsection (3), if the Minister of Employment and Social Development determines, on the basis of information obtained during the exercise of the powers set out in sections 209.6, 209.7 and 209.9 and any other relevant information, that an employer has committed a violation because that employer failed to comply with one of the conditions set out in the provisions listed in column 1 of Table 1 of Schedule 2 and the failure to do so was not justified under subsection 209.3(3), (4) or (5) or 209.4(2), that Minister must issue a notice of final determination to the employer.

20 Paragraph 209.997(2)(c) of the Regulations is replaced by the following:

• (c) the conditions set out in the provisions listed in column 1 of Table 1 of Schedule 2 with which the employer failed to comply;

21 (1) The portion of item 8 of Table 1 of Schedule 2 to the Regulations in column 2 is replaced by the following:

Item	Column 2 Short-form Description
8	Comply with the federal or provincial laws that regulate the employment or recruitment of employees, including foreign nationals, in the province in which the foreign national works

(2) The portion of item 23 of Table 1 of Schedule 2 of the French version to the Regulations in column 2 is replaced by the following:

Item	Colonne 2 Description sommaire
23	Fournir à l’étranger contaminé par la COVID-19 ou qui en présente des signes ou des symptômes, un logement qui a une une chambre individuelle, avec accès à une salle de bain privée, qui lui permet de s’isoler

(3) Table 1 of Schedule 2 to the Regulations is amended by adding the following after item 24:

Item	Column 1 Provision	Column 2 Short-form Description	Column 3 Classification
25	209.2(1)(a.1) and 209.3(1)(a.1)	Provide the foreign national, with a copy in their chosen official language of Canada, of the most recent information with respect to the foreign national’s rights in Canada that is made available by the Government of Canada for that purpose	Type B
26	209.2(1)(a)(ii.1) and 209.3(1)(a)(ii.1)	Make available to the foreign national the information referred to in paragraph 209.2(1)(a.1) or paragraph 209.3(1)(a.1), as the case may be, in both official languages of Canada	Type B
27	209.2(1)(a)(ix) and 209.3(1)(a)(xv)	Not directly or indirectly charge or recover from the foreign national the fees indicated	Type C
28	209.2(1)(a)(x) and 209.3(1)(a)(xvi)	Ensure that any person who recruited the foreign national for the employer does not, directly or indirectly, charge or recover from the foreign national the fees indicated	Type C
29	209.3(1)(a)(xiii)	Except in the case of an employer who employs a foreign national to perform work under an international agreement between Canada and one or more countries concerning seasonal agricultural workers and the agreement includes health insurance, must obtain and pay for private health insurance from a Canadian insurance provider that covers emergency medical care for any period during which the foreign national is not covered by the applicable provincial health insurance system	Type C
30	209.2(1)(a)(viii) and 209.3(1)(a)(xiv)	Make reasonable efforts to provide to the foreign national access to health care services when the foreign national is injured or becomes ill at the workplace	Type C

Coming into Force

22 These Regulations come into force at 00:00:01 a.m. Eastern daylight time on September 26, 2022.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Executive summary

Issues

The success and continued growth of the Canadian economy depends on a number of factors, including the contributions of temporary foreign workers. Temporary foreign workers have the same workplace protections and rights as Canadians and permanent residents under applicable federal, provincial, and territorial legislation. However, restrictions and limitations concerning their employment can make them more vulnerable to exploitation and abuse by employers and recruiters. Language barriers, social and physical isolation resulting from the location of work, a lack of knowledge about their rights, and the fear of reprisal are among the factors heightening the vulnerability of temporary foreign workers.

The Government of Canada has made progress in enhancing protections for temporary foreign workers through the employer compliance regimes of the Temporary Foreign Worker Program (TFWP) and the International Mobility Program (IMP). Employers under these programs are expected to meet certain requirements and conditions to ensure the protection of temporary foreign workers. Compliance with the conditions is verified by conducting inspections, and employers who fail to comply can be subject to a range of consequences. Inspections also serve as a way to improve employer awareness of their regulatory obligations under the Immigration and Refugee Protection Regulations (IRPR).

However, reports, consultations, and inspections have shown a need for further improvements to better protect temporary foreign workers’ rights in Canada, and to strengthen the employer compliance regimes to ensure that employers comply with their applicable program rules. Maintaining the status quo would leave temporary foreign workers at risk of exploitation.

Temporary foreign worker protections

In general, there is persistent stakeholder concern that temporary foreign workers are not well informed about their rights in Canada, which can lead to them not having adequate information about their wages and working conditions. Temporary foreign workers require better information about their rights, clear information about the agreed upon wages, occupation and working conditions, better health and safety protections, protection from reprisal should they come forward with a complaint, and protection from an employer (or employment recruiter) who charges them recruitment fees.

Existing TFWP policy requires that an employment agreement be provided so that workers understand their rights and obligations of employment, and prohibits employers from charging to or recovering from foreign workers recruitment-related fees, which is also not permitted in most provinces. As these requirements exist only in TFWP policy and do not apply to the IMP, there is a need to strengthen and harmonize the approaches.

It has been reported that in some instances, temporary foreign workers have had difficulty accessing emergency health care services because of isolated locations and lack of information. In addition, temporary foreign workers are not always covered by provincial health insurance systems when they enter Canada, as there is a waiting period in some provinces. Existing TFWP policy requires employers to obtain and pay for private health insurance for any period the temporary foreign worker is not covered by provincial or territorial (P/T) health insurance, aside from those workers in the global talent and high-wage streams and those already covered through the Seasonal Agriculture Worker Program. Lack of coverage adds vulnerability for temporary foreign workers, as they would have to pay out of pocket for any emergency medical expenses, putting them at financial risk.

Further concerns have been identified where workers are afraid to report potential wrongful actions by their employer (including incorrect wages or threats of deportation) to the Government, even with tools such as the Service Canada Confidential Tip Line, where workers can anonymously provide tips and messages to ESDC or IRCC about employers. Current regulatory conditions exist to ensure employers make reasonable efforts to provide a workplace that is free of abuse. However, temporary foreign workers have expressed fear that employers will take action against them if they report the employer non-compliance or cooperate with inspections.

Program integrity

The TFWP and the IMP have employer compliance regimes that hold employers accountable for non-compliance. However, the regimes have some integrity gaps and enhancements are needed. Challenges have been identified when obtaining corroborating information to address discrepancies found in pay information provided by an employer. In addition, stronger employer assessment measures are needed to protect those temporary foreign workers who may be at risk of abuse. The TFWP has identified instances where an employer may have affiliations with another employer no longer eligible for the program. The TFWP is also aware of cases where employers were able to participate in the TFWP despite the fact that in their LMIA request, the wages set out in the offer of employment were not consistent with the prevailing wage rate for the occupation, or despite situations where employment of the foreign worker was likely to adversely affect the settlement of a labour dispute.

For a returning employer submitting a new LMIA request, ESDC typically processes and issues their LMIA even if there is a reason to suspect that the employer is not complying with program conditions and that this non-compliance could put foreign national’s health or safety at serious risk. This could potentially place a foreign worker in a precarious situation.

Alignment and technical amendments

As provinces and territories enact laws regarding employers of temporary foreign workers specifically, both the TFWP and the IMP need to ensure alignment with P/T laws that regulate the employment or recruitment of foreign workers. The IRPR also include some outdated provisions with respect to employer compliance reviews (ECRs) that are no longer in use. The Standing Joint Committee for the Scrutiny of Regulations has also raised some inconsistencies between the English and French versions of amendments made in April 2020 (SOR/2020-91) to sections of the IRPR regarding workers.

Background

Temporary Foreign Worker Program and International Mobility Program

Employers in Canada seeking to hire temporary foreign workers can do so via the TFWP, administered jointly by ESDC and IRCC, or through the IMP, administered by IRCC. These distinct programs reflect different objectives in bringing temporary foreign workers to Canada. The TFWP seeks to address labour and skills shortages by helping employers fulfill their labour requirements on a temporary basis when they are unable to find a Canadian or permanent resident to fill the position. By contrast, the primary objective of the IMP is to advance Canada’s broader social, cultural, and economic interests and competitive advantage. Under the IMP, there is no obligation for the employer to demonstrate that no Canadian or permanent resident was available before hiring a temporary foreign worker.

Under the Immigration and Refugee Protection Regulations (IRPR), in most cases, a temporary foreign worker must obtain a work permit under the TFWP or the IMP. The key distinction between the programs is whether employers are required to submit a Labour Market Impact Assessment (LMIA), which assesses whether a Canadian or a permanent resident is available to do the work and the likely effect of the employment of the temporary foreign worker on the Canadian labour market. While the TFWP requires an LMIA, the IMP does not. The IMP instead assesses the broader economic, social, or cultural benefits the worker will bring to Canada by virtue of their employment. The TFWP predominately includes farm workers and food processors, but has a variety of occupations under the following streams: primary agriculture, low-wage, high-wage, and global talent. Workers under the IMP commonly include those whose work is facilitated by an international or bilateral agreement or arrangement, youth taking part in working holiday exchanges, post-graduate students, employees transferred within a company, certain academics, and charitable and religious workers.

All work permits issued under the TFWP are employer-specific, whereas work permits issued under the IMP can be either employer-specific or open. Employer-specific work permits limit temporary foreign workers to work only for the employer named on their work permit, and the inspection regimes are linked to the specific employer named on the permit in order to be able to hold the employer accountable for program conditions. By contrast, temporary foreign workers with open work permits can work for any employer in any region in Canada. Employers who hire temporary foreign workers on open work permits are not subject to the compliance regime. In 2019, approximately 400 000 temporary foreign workers were issued work permits. Of these, about 188 000 held an employer-specific work permit (98 000 in the TFWP and 90 000 in the IMP) and the remaining 212 000 held open work permits through the IMP.

Program integrity

IRCC and ESDC are committed to protecting foreign nationals who come to Canada to work, and key worker protection through employer compliance regimes is built into both the TFWP and the IMP. Both departments inspect employers to verify compliance with regulatory conditions, such as ensuring employers are paying the temporary foreign worker the correct wages. The objectives of these inspections are to enhance program integrity, protect the Canadian labour market, ensure the protection of temporary foreign workers, and educate employers of temporary foreign workers about their regulatory obligations under the IRPR. Employers who are non-compliant with the regulatory conditions may be subject to consequences, which include warning letters, administrative monetary penalties (AMPs), and temporary or permanent ineligibility to access the programs. Factors such as previous non-compliance, the size of the employer, and the severity of the violation are considered when assessing the consequences. The violation of conditions is classified as Type A, B, or C depending on the severity of the impact of the violation, with Type C being the strongest classification.

The IRPR provide for several triggers that initiate an employer inspection: a reason to suspect non-compliance (e.g. a complaint or tip was received), a history of non-compliance, or random selection. Inspections can entail document review and verification, on-site visits, employer interviews, and temporary foreign worker or other interviews (with consent only). Amendments made in response to COVID-19 included two new triggers for inspection: if there is notification of the introduction or spread of a communicable disease at the workplace, and if the employer employs a temporary foreign worker who is, or was, subject to an order or regulation made under the Quarantine Act or the Emergencies Act.

The compliance regimes for both programs have mechanisms in place to ensure procedural fairness for employers. If potential non-compliance is identified during an inspection, employers are given a formal opportunity to provide additional information to demonstrate their compliance or to justify instances of non-compliance with program conditions. Reasons an employer may use to justify their non-compliance, such as a change in federal or provincial law or an accounting error, are identified in the IRPR.

Once a final decision is rendered, the employer can accept the decision and be bound by it or challenge the decision by submitting an application with the Federal Court seeking its leave to have the decision judicially reviewed.

Since 2015, the results of employer inspections, the findings of the 2016 report of the Standing Committee on Human Resources, Skills and Social Development and the Status of Persons with Disabilities (HUMA), and information gathered during stakeholder consultations, particularly those with temporary foreign workers, have identified gaps in the employer compliance regimes’ ability to protect temporary foreign workers. HUMA held five public meetings, heard from 47 witnesses, and received a total of 63 briefs. HUMA noted that program reforms — which included the implementation of the Service Canada Confidential Tip Line to report abuse, more frequent inspections, and larger consequences for non-compliance — have helped to encourage employer compliance with program requirements and conditions, and thus protect temporary foreign workers, but gaps remain.

Between 2016 and 2020, the TFWP received more than 300 tips of allegations of abuse and mistreatment through the Service Canada Confidential Tip Line. Stakeholders, such as worker advocacy groups and temporary foreign workers, indicate that temporary foreign workers are reluctant to report abuse out of fear of losing their jobs and that they do not always understand their rights in Canada. A series of stakeholder consultations with temporary foreign workers, support organizations, and consulate liaison officers in 2017 revealed that language barriers and access to information on rights and protections remain serious impediments to worker protections, as does the fear of employer reprisal and deportation in response to speaking out or reporting mistreatment or poor working conditions. Instances of workers being improperly charged recruitment and other fees were also highlighted as a particular area of concern. Abuse, exploitation, and mistreatment of temporary foreign workers have also been widely discussed in the national media, with more than 4 150 articles addressing this topic between August 2019 and May 2021.

The 2016 HUMA report made a number of recommendations regarding temporary foreign worker protections, such as directing the Government to review current monitoring and enforcement mechanisms and to address gaps in employer compliance and worker protection. Specific recommendations include guaranteeing that temporary foreign workers who receive workplace injuries requiring immediate attention be provided with emergency care, and establishing measures to inform temporary foreign workers of their rights, including information on wages, benefits, and working conditions.

The Government responded to HUMA’s recommendations and recognized that further measures should be adopted to prevent vulnerable temporary foreign workers from experiencing mistreatment, abuse, and unsafe working conditions while working in Canada. For this reason, the February 2017 mandate letters for the Minister of Immigration, Refugees and Citizenship and the Minister of Employment, Workforce Development and Labour included commitments to work together with stakeholders to act on the recommendations of the HUMA report on the TFWP.

In April 2020, as a response to the COVID-19 pandemic, the Government enacted new regulations to ensure temporary foreign workers were better protected (SOR/2020-91). The September 2020 Speech from the Throne and the ministerial mandate letters for IRCC and ESDC reinforced the Government’s commitment to fully support and protect vulnerable temporary foreign workers. In addition, Budget 2021 announced funding for ESDC to support community-based organizations who provide services to employer-specific work permit holders, including orientation services and emergency help. Funding was also announced to bolster inspections of employers hiring under the TFWP and ensure temporary foreign workers have the right working conditions and wages. Lastly, funding was announced to enhance service delivery of Open Work Permit for Vulnerable Workers. Finally, Budget 2022 announced a number of additional protection measures for migrant workers including funding to enhance employer inspections.

Objective

The primary objective of the amendments to the Immigration and Refugee Protection Regulations (IRPR) is to strengthen protections for temporary foreign workers to prevent potential mistreatment or abuse during their period of employment in Canada. These amendments will impose on employers additional requirements, as well as conditions that the Government will be able to inspect and verify, and will address program integrity gaps. Specific amendments have been made to directly address issues identified during stakeholder consultations, the report of the Standing Committee on HUMA, and ministerial mandate commitments. The proposal also builds on TFWP policies.

Temporary foreign worker protections

Temporary Foreign Worker Program and International Mobility Program

A number of the amendments will directly improve worker protections by ensuring that temporary foreign workers have access to sources of information about their jobs and their rights in Canada. These include requiring that an employer provide the worker with a signed employment agreement that outlines the occupation, wages, and working conditions consistent with those set out in the offer of employment and, as recommended by HUMA, requiring that the employer provide workers with the most recent information about their rights in Canada. Further amendments will help address particular areas of vulnerability by prohibiting the charging or recovering of fees related to recruitment of the temporary foreign worker, and by requiring reasonable access to health care services when a temporary foreign worker is injured or becomes ill at the workplace.

Employers are required to make reasonable efforts to provide a workplace that is free of abuse. These amendments will add “reprisal” to the definition of “abuse” to respond to stakeholder concerns of workers fearing reprisal from employers (such as actual or threats of demotion, disciplinary measures or dismissal) should they report instances of an employer’s possible non-compliance with program conditions.

A number of these requirements and conditions have previously been developed and expanded on through various program policies; however, having them incorporated in regulation will strengthen and harmonize both programs.

TFWP only

Unless otherwise offered, some employers in the TFWP are required through TFWP policy to obtain and pay for private health insurance that covers emergency medical care for any period during which the temporary foreign worker is not covered by the applicable provincial or territorial (P/T) health insurance system. These amendments will build on existing TFWP policy to ensure that all temporary foreign workers have private health insurance for emergency medical care for any period that the temporary foreign worker is not covered by the applicable P/T health insurance system.

Program integrity

These regulatory amendments will improve the employer compliance regimes of both programs by strengthening the Government’s tools necessary to ensuring that employers are complying with the requirements and conditions of the programs.

TFWP and IMP

The amendments will provide ESDC and IRCC with the authority to require documents from third parties (such as banks and payroll companies) to verify employer compliance with the regulatory conditions, such as those relating to a temporary foreign worker’s wages.

TFWP only

The Labour Market Impact Assessment (LMIA) process under the TFWP will be strengthened to ensure that all employers applying for an LMIA meet program requirements in order to prevent a temporary foreign worker from entering an abusive workplace situation. Employers who have not used the TFWP in the preceding six years will be assessed under additional requirements when applying for the LMIA, including that they are not an affiliate of an employer that is ineligible to participate in the program or in default of any amount payable in respect of an administrative monetary penalty.

In addition, the amendments will ensure that the processing of an LMIA will be suspended so long as there is reason to suspect that an employer is not complying with or has not complied with certain program conditions and that the employer’s failure to comply with any of these conditions would put at serious risk the health or safety of the foreign national. The amendments will also make wage and labour dispute stand-alone requirements an employer must meet to receive a positive LMIA.

IMP only

An additional amendment will confirm ESDC’s authority to collect information regarding compliance with IMP conditions.

Alignment and technical amendments

The regulatory requirement and condition that employers must comply with provincial and territorial employment and recruitment laws will be clarified to include reference to laws specifically related to temporary foreign workers. The amendments will also include technical amendments to ensure harmonization between the French and English versions of the IRPR and will remove the authority to conduct employer compliance reviews (ECRs), which are no longer being used.

Description

The regulatory amendments to the TFWP and the IMP meet the objectives stated above for strengthening protections for temporary foreign workers in Canada and improving the employer compliance regimes of both the TFWP and the IMP.

Temporary foreign worker protections

1.1 Providing information to temporary foreign workers about their rights in Canada

To help ensure temporary foreign workers are better informed about their rights in Canada, on or before the first day of work, an employer will be required to provide to the foreign national they employ a copy of the most recent information about their rights in Canada, in the worker’s chosen official language of Canada. The employer will also be required to make this information available to the temporary foreign worker throughout their period of employment. This information will be supplied by the Government of Canada.

A determination of non-compliance with this condition will be considered a Type B violation.

1.2 Providing an employment agreement to the temporary foreign worker

The amendments will ensure that IRCC, ESDC, and the temporary foreign worker all have the same information regarding the conditions of employment.

The proposal will require TFWP employers, in their LMIA submission, to commit to conclude an employment agreement with the temporary foreign worker and to provide them with a signed copy on or before the first day of work. For IMP, employers will be required to attest (on the Employer Portal when providing the offer of employment to IRCC) that they have already provided the temporary foreign worker with an employment agreement.

In both programs, the employment agreement must provide for employment in the same occupation, with the same wages and working conditions as those set out in the offer of employment. The employment agreement must be drafted in the temporary foreign worker’s preferred chosen official language of Canada and be signed by both the employer and the temporary foreign worker. This amendment is expected to improve the temporary foreign worker’s understanding of their wages and the work they will be performing.

Failure to do this will result in a determination of non-compliance, and will be considered a Type A violation.

1.3. Amending the definition of “abuse” to include “reprisal” against temporary foreign workers

Employers are currently obligated to comply with the existing regulatory condition to make reasonable efforts to provide temporary foreign workers with a workplace free of abuse. The amendments will update the definition of “abuse” to include a direct reference to “reprisal.”

As is currently the case for a finding of abuse, a determination of non-compliance with this condition will be considered a Type C violation.

1.4. Prohibit employers from charging or recovering fees for the provision of services in relation to an LMIA, Employer Compliance fee and fees related to recruitment and require that employers ensure that any recruiters they use do not charge or recover these fees

This amendment will address the principle that temporary foreign workers should not be paying for their recruitment and mitigate concerns about financial exploitation of temporary foreign workers. This amendment will exclude the fees related to temporary visas, temporary resident permits and work permits, as workers are expected to pay those fees and will exclude fees related to the recruitment of the foreign national that are authorized under an international agreement between Canada and one or more countries concerning seasonal agricultural workers.

a. Prior to the period of employment

Employers under the TFWP will need to confirm and commit in their LMIA submission that they have not and will not directly or indirectly charge or recover fees from a foreign national in relation to the LMIA and their recruitment. Employers will also have to ensure that any third-party recruiter acting on their behalf has not done so and will not do so. Fees related to the recruitment of the foreign national that are authorized to be charged or recovered under an international agreement between Canada and one or more countries concerning seasonal agricultural workers are exempt from this prohibition.

Employers under the IMP will need to attest (on the Employer Portal), that neither they nor any third party they have used have charged or recovered any fees related to the employer compliance fee or recruitment.

Failure to do this will result in a determination of non-compliance with the condition that requires the employer to demonstrate that any information provided by them in their request for an LMIA or the offer of employment information provided to IRCC was accurate and it will be considered a Type A violation.

b. During the period of employment

This amendment will add conditions for employers regarding the charging and recovering of fees from temporary foreign workers during their period of employment. It will prohibit employers from charging or recovering from temporary foreign workers fees paid by the employer for the recruitment of the temporary foreign worker, the IMP employer compliance fee and the LMIA fee. In addition, employers will have to ensure that any person who recruited the temporary foreign worker on their behalf does not directly or indirectly charge or recover these fees from the temporary foreign worker. Fees related to the recruitment of the foreign national that are authorized to be charged or received under an international agreement between Canada and one or more countries concerning seasonal agricultural workers are exempt from this prohibition.

A determination of non-compliance with this condition will be considered a Type C violation.

An employer will be able to justify a failure to comply with these conditions if they made all reasonable efforts to comply with them and if they subsequently provided full compensation to the temporary foreign worker for the fees that were incorrectly charged or recovered.

1.5. Protecting the health and safety of temporary foreign workers

a. Access to health care services

This amendment will impose a new condition on all employers, under both the TFWP and the IMP, to make reasonable efforts to provide access to health care services when the temporary foreign worker is injured or becomes ill at the workplace. This may include, for example, ensuring there is a phone available to the temporary foreign workers to call emergency services and/or organizing but not paying for transportation to a hospital, clinic, doctor, or other health care services and providers.

b. Private health insurance for emergency medical care (TFWP only)

This amendment will also impose a new condition on employers in the TFWP to obtain and pay for private health insurance that covers emergency medical care for the temporary foreign worker for any period during the period of employment for which the temporary foreign worker is not covered by the applicable provincial/territorial (P/T) health insurance system. This condition will be imposed on all TFWP employers, except in the case of employers who employ a foreign worker under an agreement reached between Canada and one or more countries concerning seasonal agricultural workers, where the agreement includes health insurance.

This amendment is to address the concern that foreign nationals do not always have access to P/T health insurance, as access varies from one province to the other and, for some provinces, there is a waiting period before foreign nationals have coverage. Currently, only certain employers in the TFWP are required to provide private health insurance for emergency medical care for any period during which the foreign national is not covered by the applicable P/T health insurance system. If a foreign national is injured during that period, it puts the foreign national without private health insurance in a potentially vulnerable position, faced with having to choose either to pay out-of-pocket for emergency medical care fees or to refuse necessary care due to concerns about costs.

A determination of non-compliance with either of these conditions will be considered a Type C violation.

Program integrity

Amendments applicable to TFWP and IMP

2.1. Requiring documents from third parties

To help support an employer inspection, this amendment will provide ESDC and IRCC with the authority to require, without the consent of the employer and/or worker, that any third party provides any document in their possession that relates to employer compliance with regulatory conditions. Third parties include entities such as banks and payroll companies. IRCC and ESDC will continue to adhere to the Privacy Act and to the privacy requirements in their respective legislation by collecting only the information that is necessary for the intended authorized purpose, which is to support the inspection process and verify employer compliance, particularly in instances where the employer is uncooperative with the inspection.

2.2. Suspend processing of a request for an LMIA so long as there is reason to suspect employer non-compliance with certain regulatory conditions and serious risk to health or safety of foreign national

This amendment will provide ESDC with the authority to suspend the processing of an LMIA request for an employer who ESDC has a reason to suspect is non-compliant with one or more of the following conditions and that failure to comply with any of these conditions would put at serious risk the health or safety of the foreign national if a work permit was issued:

• The employer must be actively engaged in the business in respect of which the offer of employment was made, unless the offer was made for employment as a live-in caregiver;
• The employer must provide the foreign national with working conditions that are substantially the same as — but not less favourable than — those set out in that offer;
• The employer must make reasonable efforts to provide a workplace that is free of abuse; and
• The employer complies with COVID-19–related conditions.

If there is a reason to suspect that the employer is not complying or has not complied with one or more of the above-mentioned TFWP conditions and that the employer’s failure to comply with any of these conditions would put at serious risk the health or safety of the foreign national, the processing of a request for an LMIA will be suspended until there is no longer a reason to suspect non-compliance and serious risk to the health or safety of the foreign national. If there is no longer a reason to suspect non-compliance that poses a serious risk to the health and safety of the foreign national, or if the employer is found to be in compliance, the suspension will be lifted and the LMIA will be processed. If there is a finding of non-compliance and, by consequence, a determination that the employer is ineligible to employ a foreign national or is in default of any amount owed for an administrative monetary penalty (AMP), ESDC will not process the request of an LMIA.

2.3. New assessment requirements for employers applying for an LMIA

This amendment will create new requirements to increase ESDC’s capacity to identify potential wrongdoing upon receipt of an employer’s LMIA, in order to ensure safety of foreign nationals. This amendment will apply to employers who have not employed a foreign national under the TFWP during the six years before the day on which they submit their request for a LMIA.

These requirements are to assess, for the period beginning two years before the day on which a request for an LMIA is received and ending on the day that the LMIA is provided, whether an employer

• made reasonable efforts to provide a workplace that is free of abuse; and
• was not an affiliate of an employer who is ineligible for the program or in default of any amount payable in respect of an administrative monetary penalty.

2.4. Make wage and labour dispute factors stand-alone LMIA requirements

Under the current regulations, when ESDC assesses whether the employment of the foreign national is likely to have a neutral or positive effect on the labour market in Canada, it takes into consideration seven factors. These factors are given equal consideration as part of an overall assessment to determine the effect that the employment of the foreign national could have on the labour market. Failure to meet one or more of these seven factors does not result in an automatic refusal. This amendment will allow ESDC, upon receipt of an LMIA request, to independently assess whether wages set out in the offer of employment are consistent with the prevailing wage rate for the occupation and whether the employment of the foreign national is likely to adversely affect the settlement of any labour dispute in progress or the employment of any person involved in the dispute. These two requirements will be assessed on a pass or fail basis, while the remaining factors will continue to be taken as part of the overall assessment.

For an employer to receive a positive LMIA, these two requirements will have to be satisfied independently of the other factors assessed.

Amendments applicable to IMP only

2.5. Collecting information regarding compliance with IMP conditions to ensure program integrity

This amendment will confirm ESDC authority to collect personal information on employers and temporary foreign workers (i.e. information received through the TFWP Service Canada Confidential Tip Line, the online reporting tool, or future communication media) related to an employer’s compliance with the conditions of the IMP. The information collected will then be shared with IRCC inspection officials.

Alignment and technical amendments

3.1 Compliance with provincial or territorial laws that regulate the employment or recruitment of employees, including foreign nationals, in the province where it is intended that the temporary foreign worker will work

Some provinces have requirements for employers to register with the province before recruiting and hiring temporary foreign workers. The employer registration process not only enables proactive government oversight of such employers, but also provides labour authorities with improved information on where temporary foreign workers are working in the province. Some jurisdictions also require mandatory licensing of recruiters to authorize who can and cannot engage in the recruitment and placement of temporary foreign workers.

The amendments will clarify that employers must comply with all provincial and territorial employment and recruitment laws, including those laws that specifically relate to temporary foreign workers.

3.2 Repealing the sections in the IRPR that pertain to employer compliance reviews (ECRs)

Until 2013, employer compliance reviews (ECRs) were conducted to verify whether a returning employer had provided their temporary foreign workers with the same occupation, and substantially the same (not less favourable) wages and working conditions, as set out in their offer of employment. In 2013, the authority to conduct inspections to verify employer compliance with these and other conditions was added to the IRPR.

ESDC and IRCC have not used ECR authorities since 2019, because the inspection authorities under the compliance regimes provide a more effective means for detecting employer non-compliance. This amendment will repeal the ECR provisions and bring the IRPR in line with current practices.

3.3 Harmonizing English and French languages

The amendments will also include technical amendments to ensure harmonization between the English and French texts in the amendments to the IRPR that came into force in April 2020 (SOR/2020-91).

Regulatory development

Consultation

Beginning in August 2017, the TFWP facilitated a series of consultations with provincial and territorial governments, officials of foreign governments, industry associations, community organizations, settlement agencies, temporary foreign worker support organizations, union representatives, temporary foreign workers, and independent experts. The objective of these consultations was to identify potential enhancements to worker protection measures, communication approaches, and opportunities for the Government of Canada to support the efforts of non-governmental organizations to protect the rights of temporary foreign workers.

Stakeholders presented a number of statements and claims about the TFWP and the situation of temporary foreign workers during these consultations, including the following:

• Information about temporary foreign worker rights and protections must be provided directly to the workers. Moreover, employers should be responsible for providing temporary foreign workers with information on their rights and protections at the workplace.
• Temporary foreign workers live in fear of being penalized or blacklisted by their employer, or of being deported. This is the main reason TFWs do not come forward with complaints in situations of abuse or misuse of the programs by their employer.
• Temporary foreign workers are paying enormous amounts for recruitment fees despite the fact that charging such fees to a temporary foreign worker violates TFWP policy.
• There is a lack of access to health care services for temporary foreign workers. These workers need to be able to reach out at any time to get help when they need health care services, including outside regular working hours.

These concerns were taken into consideration in the development of this regulatory amendment package. The proposal was prepublished in the Canada Gazette, Part I, on July 10, 2021, for a 30-day consultation period. Various national and international stakeholders including migrant worker organizations, industry representatives, source-country governments, academics, and provincial/territorial and federal government representatives, actively took part in providing feedback to the amendments. Within this time period, over 70 written submissions were received, and eleven virtual consultation sessions with targeted stakeholders, were held concurrently.

Stakeholders were generally supportive of the proposal, particularly the amendments aimed at the protection of temporary foreign workers. However, stakeholders did raise some concerns:

• Employers wanted more flexibility in providing the information pamphlet. In response, employers can now provide this information in any format (electronic or paper format) on or before the first day of work.
• Employers wanted more flexibility in providing the employment agreement to workers. In response, employers in the TFWP can provide this information on or before the first day of work. Employers in the IMP must have a signed employment agreement before the employer provides the information to IRCC.
• Initially there was a proposal for an amendment that would reduce the timeframe for employers to respond to a Notice of Preliminary Finding (NoPF) from 30 days to 15 days. The intent of this amendment was to reduce the time that a TFW may potentially be in a vulnerable situation. However, employers and officers indicated that shortening the time for employers to provide documentation when they receive a NoPF would create administrative difficulties, especially for small businesses. Third party legal advice is often sought after receiving a NoPF, and shortening this period from 30 to 15 days would result in many requests for extensions. These requests for extensions are likely to be granted in the majority of cases, which would require more resources and could lead to further delay. Reducing employers’ response time to 15 days is unlikely to result in faster compensation or correction for workers. Overall, it was determined that the administrative burden imposed under this proposal could displace efforts to simplify program operations, without adding any benefit for worker protections. This amendment has been removed from the final proposal.
• Employers, workers and other stakeholders asked for clarity on some of the new proposals, such as the definition of “recruitment fees” and “access to healthcare” as employers want to ensure they are in line with program conditions. Clarification is provided in policy guidance.
• Employers expressed some concern that suspending the processing of LMIAs could hold up human resource practices for long periods, given the current delays in resolving inspections and suspensions. In response, suspending the processing of LMIAs was narrowed to occur in the most egregious cases and would only be for so long as there is be a reason to suspect employer non-compliance with certain conditions and that this failure to comply would put at serious risk the health or safety of the foreign national if the work permit was issued.

Modern treaty obligations and Indigenous engagement and consultation

No modern treaty implications are anticipated, because Indigenous peoples in Canada are not impacted by the proposal.

Instrument choice

As the authorities for the compliance regimes of the TFWP and the IMP are found in the IRPR, there is no alternative but to amend the Regulations to add new program requirements and conditions. Some of the proposals codify existing program policies to provide consequences for non-compliance.

Regulatory analysis

Benefits and costs

An important first step in developing a cost-benefit methodology is establishing a baseline scenario against which options may be measured. For this analysis, the baseline is a scenario where there are no changes to the IRPR surrounding worker protections, and existing Employment and Social Development Canada (ESDC) policies continue to be in effect. The baseline scenario is then compared with the regulatory amendments, which will codify certain policies and make regulatory changes to strengthen the compliance regime and Labour Market Impact Assessment (LMIA) application processes as well as enhance worker protections in both the International Mobility Program (IMP) and the Temporary Foreign Worker Program (TFWP). Assumptions for the analysis were based on publicly available information, ESDC and Immigration, Refugees and Citizenship Canada (IRCC) datasets, and subject matter expertise.

The volume and growth of the IMP and the TFWP are assumed to follow the annual average growth rate from 2015 to 2019 recorded volumes. The IMP is assumed to grow at the average annual growth rate until 2024, and then stay constant for the rest of the analytical period (2025–2031). The number of work permits issued from the IMP is expected to grow at a rate of 6.3% until 2024, while IMP applications are expected to grow at a rate of 13.4% until 2024. On the other hand, the TFWP is expected to see growth for each of the years within the analytical time frame. The number of TFWP work permits issued is expected to grow at a 1.9% rate, and LMIA applications are expected to grow at a 2.7% rate.

Following prepublication in the Canada Gazette, Part I, stakeholders had the opportunity to submit comments or concerns regarding the assumptions and methodology used in the cost-benefit analysis. No comments or concerns were submitted in regards to the cost-benefit analysis.

For final publication, cost-benefit estimates were adjusted to reflect final policy decisions. At prepublication, it was assumed the amendments would come into force in January 2022. For final publication this assumption has been adjusted such that costs and benefits of the amendments commence in late September 2022, hence only three months of impacts are accounted for in the first year of analysis.

Following prepublication it was determined that no additional checkboxes will be added to LMIA application forms to confirm employer commitments regarding healthcare access, assurance that to temporary foreign workers have the necessary employment information, and confirmation that temporary foreign workers are not charged recruitment fees. Existing LMIA application forms already include this information due to internal ESDC policy measures. As such, employers will not spend additional time completing LMIA applications, therefore the amendments do not impose additional administrative costs to employers in the TFWP.

IMP employers will still be required to read new attestation information and their costs are explained in detail in the one-for-one rule section. For further details regarding the methodology, a detailed cost-benefit analysis report is available upon request from IRCC.

The costs and benefits of the regulatory amendments are estimated for the period from 2022 to 2031.

The total costs for the regulatory amendments are estimated at $39,347,442 (PV) over 10 years. These costs reflect the transition and ongoing costs to the Government of Canada, as well as costs for employers to provide information to temporary foreign workers, administrative costs associated with attestations, and costs of providing private health insurance that covers the emergency medical care, during any period for which the temporary foreign workers are not covered by the provincial health insurance system. Total benefits are estimated at $32,137,423 (PV) over 10 years and represent the benefits for temporary foreign workers from employer-provided private health insurance for emergency medical care, and obtaining the most recent information about their rights in Canada in a timelier manner. The analysis estimates a net monetized cost of $7,210,020 (PV) over 10 years. However, there are also many qualitative benefits, as the enhancement of temporary foreign worker protections will prevent potential mistreatment or abuse, as well as improve the employer compliance regimes and LMIA assessment processes.

Costs to Government

The amendments will result in both transition and ongoing costs to IRCC and ESDC. Transition costs for both departments include costs for the development of communications products, updates to program delivery instructions, policy updates, IT costs, and costs to provide training and guidance to inspectors and officers. These costs are estimated at $780,084 (PV) and are expected to be incurred only in the year in which the amendments come into force, in 2022.

Ongoing costs to Government consist of processing costs for IRCC and ESDC, estimated at $6,538,244 (PV) over 10 years. The regulatory amendments identify additional requirements and conditions to which employers must adhere. This means that officers in both departments will undertake new activities to verify that these requirements and conditions have been met.

Costs to employers

Approximately 48 000 employers in the IMP and the TFWP will be impacted by the regulatory amendments. Employers in both programs will bear ongoing costs programs to provide the most recent information on workers’ rights in Canada and a copy of the employment agreement to temporary foreign workers, where it is not already required in policy. It is estimated that employers would spend an average of five minutes per application to provide a copy of the employment agreement, and five minutes per application to provide other required information, provided by the Government of Canada, on temporary foreign workers’ rights. Resources would be split between clerical work, administrative support, and managerial approval. The total cost to provide these materials to workers is estimated at $6,760,869 (PV) over 10 years.

Employers in the IMP will incur administrative costs. They will be required to provide attestations that neither they, nor any third party they have used to recruit the temporary foreign worker, have charged employment-related fees to temporary foreign workers, and that they have provided workers with a signed copy of the employment agreement. The total administrative cost to businesses to attest that they will meet program requirements is estimated at $421,769 (PV) over 10 years. For details on methodology and assumptions regarding this administrative burden, please refer to the one-for-one rule section below.

The requirement for employers in the TFWP to provide private health insurance that covers the emergency medical care to workers will result in incremental costs to some employers in provinces with provincial health insurance coverage waiting periods. In British Columbia, Saskatchewan, Ontario, Quebec and Yukon, it will represent incremental costs for employers of temporary foreign workers in the High Wage Stream and Global Talent Stream (GTS) of the TFWP. The cost impact is estimated using data on the average age of program participants, various insurance premiums estimates, and data on waiting periods in each province or territory prior to being eligible for provincial or territorial (P/T) health care coverage. It is estimated that employers will bear costs of $24,846,476 (PV) over 10 years to provide private health insurance to cover the emergency medical care for temporary foreign workers. In addition, under both the TFWP and the IMP, employers will be required to make reasonable efforts to provide access to health care services when the temporary foreign worker is injured or becomes ill at the workplace. These costs are not expected to be significant.

The amendments will add new LMIA requirements for employers who have not employed foreign nationals during the six years prior to submitting a request for an LMIA. They will also provide ESDC with the authority to suspend the processing of LMIA applications. It is unlikely that employers in compliance with regulatory requirements and conditions will be subject to any incremental costs. Although these amendments are not expected to impose any monetized costs on compliant employers, they may impose a low risk to non-compliant employers in the form of delays in fulfilling their labour needs.

Similarly, employers are not expected to bear additional costs due to the prohibition on directly or indirectly charging or recovering recruitment-related fees to temporary foreign workers, or from the requirement to ensure third parties who recruited the temporary foreign worker did not directly or indirectly charge or recover these fees, as these actions are already prohibited in existing policy and most provincial legislation (with the exemption of workers in the SAWP).

Costs to third parties

In cases where employers do not cooperate with government requests for supporting documentation or when the Government would like to verify the accuracy of documents provided by employers, the regulatory amendments provide IRCC and ESDC with the authority to require these documents from third parties, including chartered banks and other entities. It is important to note that third parties are not legally obligated to respond to or comply with these requests; however, should third parties respond, it is acknowledged that they would bear costs to draft written responses, and prepare and send the requested information. These costs are not expected to be significant, as third parties would only be required to provide documents in a low percentage of cases. Due to data limitations and uncertainty on volumes, this cost is addressed qualitatively.

Benefits to temporary foreign workers

The regulatory amendments will provide a number of benefits to temporary foreign workers. First, requiring that employers provide workers with the most recent information on their employment rights while in Canada and a copy of the signed employment agreement will allow temporary foreign workers to be better informed, as they will have easily accessible information concerning their rights in Canada. Many temporary foreign workers may not currently be aware that information on their rights in Canada is available online, and/or they may not have access to a computer or Internet. By requiring that employers provide copies of this information, temporary foreign workers would be better informed and more protected from potentially non-compliant employers. Non-native English or French speakers will also benefit from receiving this information from employers, as the documents will provide details of how to access information in languages other than English or French.

In addition, by requiring employers to provide copies of employment rights information, temporary foreign workers will benefit in the form of time savings. It is assumed that workers currently spend time to locate and access the most recent information concerning their rights in Canada. It is estimated that it will take native English or French speakers approximately 10 minutes to locate this information online, while for non-native English or French speakers it is estimated to take 20 minutes. Using data on the average wage earned by workers in the IMP and the TFWP, the total monetized benefit of the time saved to workers is calculated as $7,290,947 (PV) over a 10-year period.

The amendment requiring employers to provide private health insurance that covers emergency medical care to temporary foreign workers will help protect the health and safety of temporary foreign workers by ensuring improved access to health care and medical services. Shifting the cost of private health insurance, for emergency medical care, from workers to employers will result in a benefit to workers of $24,846,476 (PV) over 10 years.

There will be additional benefits to temporary foreign workers in that the regulatory amendments will confirm the authority for ESDC to collect information on compliance with IMP conditions that ESDC receives through the Tip Line. Therefore, tips will reach officers in the correct department more quickly, enhancing program integrity, and allowing for better worker protection.

Moreover, the amendments prohibiting reprisal against temporary foreign workers who come forward with complaints, prohibiting employers and third parties from charging or recovering recruitment-related fees, and providing ESDC and IRCC with the authority to require documents from third parties will all benefit temporary foreign workers by contributing to a safer workplace and improved working conditions.

In addition, ensuring safe working conditions and reducing the risk of foreign nationals entering abusing and exploitative work situations will be helped by the addition of new assessment requirements for employers applying for an LMIA and by granting ESDC the authority to suspend the processing of a request for an LMIA when there is a reason to suspect non-compliance with certain program conditions that puts the foreign national’s health or safety at serious risk, if the work permit was issued.

By allowing ESDC to separately assess wages and labour dispute requirements, employers will now have to meet these requirements. Therefore, temporary foreign workers will have improved security in the knowledge that they will be paid the prevailing wage, and that they will not become involved in an ongoing labour dispute.

Benefits to employers

In addition to the many benefits identified for temporary foreign workers, the amendments also present a number of benefits to employers in both the IMP and TFWP.

First, the regulations ensure greater transparency and clarity regarding program requirements and conditions. Employers will be more aware of their responsibilities and program rules, which will limit accidental and involuntary non-compliance.

In addition, the condition for all employers to provide reasonable access to health care services at the workplace and the condition for most TFWP employers to provide private health insurance that covers the emergency medical care will benefit employers, as the temporary foreign workers will be more likely to seek medical attention for illness and/or injury. This will help ensure continued worker productivity and general workplace safety for employers.

Benefits to the Government

Though various costs to Government were identified as a result of the amendments, there are also expected to be significant benefits.

By improving the transparency of requirements, there may be benefits to Government in the form of time saved reviewing instances of non-compliance, and these resources could be reallocated to other areas of program policy and development.

Benefits to the Canadian public

Many of the benefits to temporary foreign workers are also applicable to Canadian workers more broadly.

First, strengthening workplace conditions for temporary foreign workers will positively affect workplace conditions for all Canadians and permanent residents working in Canada, as workplaces tend to be shared environments. As a result, all workers in Canada will experience improved working conditions, which safeguards worker health and productivity.

Furthermore, the condition for all employers under both programs to provide reasonable access to health care services at the workplace and the condition for most TFWP employers to provide private health insurance that covers the emergency medical care will also contribute to the promotion of worker health and productivity for all workers in Canada. By ensuring that temporary foreign workers who are sick or injured have better access to health care, they are less likely to continue to work when ill or injured, thereby helping to prevent the spread of illness to other workers.

In addition, all workers will benefit from making labour disputes a stand-alone requirement in the assessment of LMIA applications, as ongoing labour disputes will be addressed while ensuring that employing temporary foreign workers will not have a negative effect on the settlement of the dispute. Moreover, making wages a stand-alone requirement will benefit all workers by ensuring that Canadian wages are not negatively impacted by the employment of temporary foreign workers.

Cost-benefit statement

• Number of years: 10 years, from 2022 to 2031
• Base year for costing: 2020
• Present value base year: 2022
• Discount rate: 7%

Monetized costs

Impacted stakeholder	Description of cost	Base year (2022)	Other relevant year (2026)	Final year (2031)	Total (present value)	Annualized value
Government	Transition costs (IT, updates to policy and program delivery instructions, communications, and training)	$780,084	$0	$0	$780,084	$111,066
	Increased processing costs to check that new program requirements are being met	$244,056	$976,225	$976,225	$6,538,244	$930,899
Employers	Cost to provide workers with the most recent information on their rights in Canada and an agreement	$213,262	$1,013,736	$1,033,400	$6,760,869	$962,596
	Cost to provide private health insurance, emergency medical care, to workers in the TFWP	$844,290	$3,641,645	$4,001,568	$24,846,476	$3,537,579
	Administrative costs to provide attestations to government	$12,425	$63,912	$63,912	$421,769	$60,050
All stakeholders	Total costs	$2,094,117	$5,695,517	$6,075,105	$39,347,442	$5,602,191

Monetized benefits

Impacted stakeholder	Description of benefit	Base year (2022)	Other relevant year (2026)	Final year (2031)	Total (present value)	Annualized value
Temporary foreign workers	Time saved searching for the most recent information on their rights in Canada	$259,149	$1,073,392	$1,123,467	$7,290,947	$1,038,067
	Benefit of employer-paid private health insurance, for emergency medical care, that TFWs would otherwise have to pay for themselves	$844,290	$3,641,645	$4,001,568	$24,846,476	$3,537,579
All stakeholders	Total benefits	$1,103,438	$4,715,036	$5,125,035	$32,137,423	$4,575,646

Summary of monetized costs and benefits

Impacts	Base year (2022)	Other relevant year (2026)	Final year (2031)	Total (present value)	Annualized value
Total costs	$2,094,117	$5,695,517	$6,075,105	$39,347,442	$5,602,191
Total benefits	$1,103,438	$4,715,036	$5,125,035	$32,137,423	$4,575,646
NET IMPACT	−$990,678	−$980,481	−$950,070	−$7,210,020	−$1,026,545

Small business lens

The small business lens applies, as there are impacts on small businesses associated with the amendments.

Employers in both the IMP and TFWP will assume costs to provide information and a copy of the employment agreement to temporary foreign workers, and for TFWP employers to provide employer-paid private health insurance that covers emergency medical care, in provinces where a waiting period is applicable before temporary foreign workers are covered by provincial health care programs. In addition, there are also costs for TFWP employers associated with the amendment to suspend the processing of LMIAs when there is reason to suspect non-compliance and serious risk to the health or safety of foreign nationals. Finally, employers hiring under IMP will also incur costs due to the requirement to provide attestations.

While no reliable data exists on the proportion of employers participating in these programs that are small businesses, Statistics Canada notes that 97.9% of businesses operating in Canada are small businesses, and this statistic is used as a proxy for the purposes of the cost-benefit analysis. Data obtained from ESDC reveals that small businesses hire temporary foreign workers at a ratio of 4:10 compared to large businesses, and that small businesses submit 10% of the volume of LMIAs submitted by large employers. Since similar data is not available for the IMP, we extend the assumption of a 4:10 ratio for the volume of temporary foreign workers hired by small businesses to IMP employers as well.

There are no accommodations or flexibilities afforded to small business in the regulatory amendments. However, as many of the amendments already exist in program policies, small businesses have already been subject to these measures and have already incorporated their policy requirements into their business practices. The design of the new employer conditions has taken into consideration the administrative burden for small businesses and therefore allows flexibility wherever possible in implementing the conditions rather than being overly prescriptive (e.g. the method of providing a copy of the offer of employment to the worker is not prescribed).

The compliance regime also has tools available to give businesses, including small ones, some flexibility, such as the opportunity to ask for an extension to reply to a notice of preliminary finding, or an opportunity to provide a justification for non-compliance. Finally, the compliance regimes are set up to take into account the size of the business when applying a penalty for non-compliance. Moreover, the long-term benefits to each business in the form of safer workplaces, improved overall employee health and subsequent increased productivity (and hence profitability), and increased awareness of employer responsibilities are expected to outweigh the costs.

The table below outlines the impacts of the amendments on small businesses.

Small business lens summary

• Number of small businesses impacted: 47 272
• Number of years: 10 years, from 2022 to 2031
• Base year for costing: 2020
• Present value base year: 2022
• Discount rate: 7%

Compliance costs

Activity	Annualized value	Present value
Cost to provide workers with the most recent information on their rights in Canada and an employment agreement	$275,027	$1,931,677
Cost to provide paid private health insurance, for emergency medical care, to workers in the TFWP, where applicable	$315,593	$2,216,591
Total compliance cost	$590,620	$4,148,268

Administrative costs

Activity	Annualized value	Present value
Administrative costs for employers to provide attestations to government	$17,157	$120,505
Total administrative cost	$17,157	$120,505

Total compliance and administrative costs

Totals	Annualized value	Present value
Total cost (all impacted small businesses)	$607,777	$4,268,773
Cost per impacted small business	$13	$90

One-for-one rule

The one-for-one rule applies since there is an incremental increase in the administrative burden on businesses, and the amendments are considered an “in” under the rule. The total annualized administrative costs are $33,898 (in 2012 dollars, PV discounted to 2012) as calculated using the prescribed methodology in the Red Tape Reduction Regulations.

Under the regulatory amendments, employers in the IMP will be required to attest to the fact that they have provided workers with a copy of the signed employment agreement, and that they have not directly or indirectly charged or recovered recruitment-related fees from temporary foreign workers, and ensured that any third parties who recruited temporary foreign workers did not charge or recover these fees. These requirements present an administrative burden for employers to read and acknowledge additional information on the Employer Portal, resulting in administrative costs. It is estimated that this activity will take employers an additional 40 seconds per application, which includes reading, understanding, and acknowledging the statements. The cost of labour for this administrative activity is $25/hour including overhead, in 2012 dollars (or $23/hour in 2020 dollars, excluding overhead).

For TFWP employers, there would be no administrative costs. Following prepublication of the proposed amendments, it was determined that no additional checkboxes or information will be added to LMIA application forms as such information already exist in the LMIA. Only minor reorganization of the current LMIA form content will be required. Administrative costs presented in the prepublication analysis were removed from the final publication one-for-one rule.

Regulatory cooperation and alignment

The proposal is not related to a work plan or commitment under a formal regulatory cooperation forum.

The amendments to clarify that employers must comply with all provincial and territorial employment and recruitment laws, including those laws that specifically relate to temporary foreign workers, will minimize regulatory differences with these provinces and complement and support provincial and territorial efforts to protect temporary foreign workers.

Strategic environmental assessment

In accordance with the Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, a preliminary scan concluded that a strategic environmental assessment is not required.

Gender-based analysis plus

While the overall objective of the regulatory amendments to the IRPR is to improve protection for all temporary foreign workers who work in Canada, the effect of these improvements may vary according to gender, particularly as it intersects with other identity factors such as race, ethnicity, religion, age, and mental or physical disability. A power imbalance arguably exists in all employment relationships. However, temporary foreign workers who encounter barriers related to finances, social support, and/or language may experience an even greater disadvantage when attempting to navigate abusive employment situations. While as a cohort, temporary foreign workers are more susceptible to workplace abuse, gender can exacerbate this vulnerability.

It is broadly understood that temporary foreign workers fear reporting abuse and, as a result, reliable data are not available to quantitatively assess their experiences. However, qualitative evidence suggests pockets of profound vulnerability. The qualitative lived experience of temporary foreign workers in Canada has been described as making them vulnerable, exploited, in a precarious situation, and at risk of abuse by employers. These experiences have been clearly documented and well established in the academic literature over the past two decades, in particular for those working in agricultural (which tend to be predominantly men) and caregiving (predominantly women) occupations. The addition of reprisal to the definition of abuse is expected to help mitigate against some of these particular vulnerabilities.

More men than women participate in Canada’s two temporary foreign worker programs. In 2019, approximately 400 000 temporary foreign workers were employed in the TFWP and the IMP. Under the TFWP, women represented approximately 18% of temporary foreign workers across all skill levels in 2019. Therefore, the regulatory amendments are expected to have a greater impact on men in the TFWP, primarily due to the fact there are more men hired under the program.

While men employed under the IMP also outnumbered women in many other streams of work, the gender disparity was not as pronounced as in the TFWP. For example, of the temporary foreign workers employed through the IMP in 2019, women represented 43% and men represented 57%. As a result, the regulatory amendments are expected to impact male and female temporary foreign workers who are hired under the IMP in roughly equal measure.

Since women represent the vast majority of those in caregiving professions, are generally concentrated in the low-wage stream of the TFWP, and may be working in private dwellings, the Government’s ability to inspect against some of the new regulatory conditions could be limited in areas where women are working. While IRCC and ESDC have authority under the IRPR to enter private property for the purpose of an employer compliance inspection, the consent of the occupant, or a warrant, is required to enter a dwelling house, which can render the process more complex and lengthy. In particular, the amendment that will require employers to provide the most recent information to a temporary foreign worker with respect to their rights in Canada may encounter particular inspection challenges, as it will require an inspecting official to enter the private dwelling of the employer to verify whether the information was provided to the worker. More broadly, there is a concern that language and/or literacy barriers may reduce the impact of this regulatory requirement (i.e. if a temporary foreign worker is not proficient in English or French, the information in the poster may not benefit them). To address this, the Government of Canada makes information available to foreign nationals in multiple languages beyond English and French, including information on how to know if the job the worker is being asked to perform is safe and what to do if it is not, how to change employers, and contact information for a variety of resources and supports.

The regulatory amendments are expected to address many of the intersecting and compounding factors of vulnerability experienced by temporary foreign workers in Canada through the introduction of specific protections and supports, such as the provision of private health insurance that covers the emergency medical care and the specific inclusion of reprisal to the definition of abuse. Following implementation and moving forward, IRCC and ESDC will continue to rigorously analyze the impacts of these regulatory amendments as part of regular monitoring activities, with the purpose of making guidance, policy or regulatory amendments as required to adjust for evolving gender-based analysis plus (GBA+) considerations.

Implementation, compliance and enforcement, and service standards

Implementation

The regulations will come into force on September 26, 2022, in order to provide employers with sufficient time to familiarize themselves with new requirements and to make necessary adjustments to comply.

For Government

ESDC and IRCC will work together to implement the amendments. Before the amendments come into force, IRCC will make IT updates to include the new employer attestation in the Employer Portal, whereby employers will be able to attest they have provided the temporary foreign worker with a signed copy of their employment agreement before the work permit application is made, and that they have not charged or recovered fees from the temporary foreign worker, and have ensured third parties who recruited the temporary foreign worker did not do so. ESDC will make changes to the Labour Market Impact Assessment request form. IRCC and ESDC will develop new training and guidance materials to inform and support officers, who will then be required to undertake training to become familiar with how to conduct inspections on the new employer conditions and how to apply consequences for determinations of non-compliance.

For employers

Employers will be required to familiarize themselves with the new regulatory conditions and requirements, the consequences of non-compliance, and the guidance on how to ensure they are compliant.

Employers will be responsible for obtaining and paying for private health insurance that covers emergency medical care for temporary foreign workers when applicable.

Employers will also be required to ensure that they consistently have the most recent information on temporary foreign workers’ rights (this information is made available by the Government to employers), that the information is available at a location that is accessible and is in both official languages of Canada.

Employers will be further required to ensure that they provide the workers they hire with a copy of their employment agreement, drafted in the foreign nationals chosen first language of Canada and that they secure the signature of the worker before providing the offer of employment to IRCC (for the International Mobility Program) or on or before the first day of work (for the Temporary Foreign Worker Program).

Compliance and enforcement

Employers who are found to have violated one or more of the program conditions may be subject to consequences, which include warning letters, administrative monetary penalties (ranging from $500 to $100 000 per violation up to a maximum of $1 million), and temporary or permanent periods of ineligibility from using either program. Factors such as previous non-compliance, the size of the employer, and the severity of the violation are taken into consideration when issuing consequences. Additionally, employers found to be non-compliant have their names posted on a publicly available Government of Canada website.

Employers may be inspected based on a reason to suspect non-compliance (e.g. a complaint or tip was received), if there is a history of non-compliance, and/or by random selection. In response to COVID-19, employers may now also be inspected if there is notification of the introduction or spread of a communicable disease introduced at the workplace, or if the employer employs a temporary foreign worker who is, or was, subject to the Quarantine Act or the Emergencies Act.

Compliance regimes for both programs have mechanisms in place to ensure procedural fairness for employers. If non-compliance is identified during an inspection, employers are given a formal opportunity to provide additional information to demonstrate their compliance or to justify instances of non-compliance with program conditions. Reasons an employer may use to justify their non-compliance, such as a change in federal or provincial law, or an accounting error, are identified in the Immigration and Refugee Protection Regulations.

Once a final decision is rendered, the employer is bound by the decision but may apply for leave to the Federal Court to commence an application for judicial review.

Contacts

Ian Gillespie
Director
Temporary Resident Policy and Programs
Immigration, Refugee and Citizenship Canada
365 Laurier Avenue West
Ottawa, Ontario
K1A 1L1
Email: IRCC.TempResRegulations-ResTempReglement.IRCC@cic.gc.ca

Brian Hickey
Director General
Temporary Foreign Worker Program
Employment and Social Development Canada
140 Promenade du Portage
Gatineau, Quebec
K1A 0J9
Email: EDSC.DGCE.DPIRP.TET-TFW.IPPI.SEB.ESDC@hrsdc-rhdcc.gc.ca