Temporary Foreign Worker Program: 'Stiff' new penalties coming Dec. 1

The federal government has announced "stiff new consequences" for employers who break the rules when hiring foreign workers, but employers saythe lack of an independent appeal process could be time-consuming and costly for individuals and businesses alike.

The changes, which takeeffect on Dec. 1, come after the government received feedback from42 stakeholder groups on a discussion paper posted online last Septemberoutlining proposed consequences for employers found to have broken the rules.

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The new regulations, published in the Canada Gazette this month, apply to employers hiring foreign nationals under the Temporary Foreign Worker Program and the International Mobility Program and to individuals seeking to hire foreign caregivers.

"Stiffnew consequences," saidEmploymentMinisterPierrePoilievrein a news release last week, "will encourage compliance and help prevent employers from misusing the programs or mistreating workers by ensuring that employers who violate program conditions face appropriate consequences."

Under the new rules, employers found to be "non-compliant" following an inspection could face a ban from using the program ranging from one to 10 years for each violation, or even a permanent ban for the most serious violations. Currently, the only consequence is a two-year ban.

Employerscould also face fines ranging from $500 to $100,000 for each violation. Amendments made following stakeholder feedback will see fines capped at $1 million per year, per employer.

Other amendments following the consultations include:

• Giving employers at least 30 days to respond in writing to preliminary findings of an investigation, with the possibility of extensions.
• Allowing employers to voluntarily disclose mistakes and receive a lesser penalty, such as a written warning.
• Reinstating "good faith" provisions to acknowledge human error, such as administrative errors or misinterpretations, can occur.
• Posting a so-called "blacklist" online with only the names of employers who have been fined or banned from using the program, instead of the names of all employers found to be "non-compliant."

Appeal process criticized

The new rules are meant to address concerns about changes to the program following a series of stories by CBC's Go Public unit that reported on allegations of abuse by several employers, includingRBCandMcDonald's.

But some stakeholders are concerned the changes still leave employers without proper recourse to appeal.

The compliance regime creates absolute liability for the employer. - Vance Langford, immigration law section of theCanadian Bar Association

TheCanadian Chamber of Commerce, the largest business association in the country representing some200,000 employers,was one of the groups that wrote to the government about the proposed changes.

"We still find the penalties very stiff for small employers, but at least there seems to be a more reasonable approach to errors made in good faith and a change to the administrative decision-making process, that isallowing a written reply by an employer before a decision on non-compliance is made," said SarahAnson-Cartwright, the director of skills policy at the chamber, in an emailtoCBC News.

"These compliance decisions should be balanced by a proper appeal process, but we do not see that ...which is unfortunate," Anson-Cartwright added.

The Canadian Federation of Independent Business, which represents more than 109,000 small business owners, welcomed the amendments as "a step in the right direction"but also expressed concern around the lack of an independent appeal process.

"Too much discretion is left in the hands of the minister and the bureaucrats," saidRichardTruscott, vice-president of the CFIB's B.C. and Alberta chapter, in a phone interview with CBC News on Monday.

Under the new rules, employers have at least 30 days to contest the findings of an investigation, but once a final determination is made, the only recourse available to employers is legal action.

"The ramifications for small businesses could be very costly," Truscott said.

'Absolute liability' for employers

The Canadian Bar Association also weighed in, with its immigrant law section making 10 recommendations for improving the proposed system of sanctions.

Vance Langford,a Calgary lawyer and an officer with the CBA's immigration law section, welcomed rules toallow for voluntary disclosure and the reinstatement of "good faith" provisions in theImmigration and Refugee Protection Regulations. But he said the CBA's other recommendationshave not been adequately addressed.

"The penalties are extreme," Langford said in aphoneinterview with CBC News on Tuesday. "The compliance regime creates absolute liability for the employer."

The CBA recommended the government"develop a comprehensive review process that includes an appeal to a court, or at least a de novohearing by an independent and impartial tribunal for findings of non-compliance and imposition of penalty."

Langford said the severity of the penalties combined with the lack of an appeal process "couldput employersout of business," and consequences forindividuals or families seeking to hire a foreign caregiver couldbe "devastating."

CBC News asked for the names of the 42groups that provided feedback to the government but PierreNolet, a spokesmanfor ESDC, said the listcould not be made public for privacy reasons.

"The largest portion were from organizations representing employers who use the Temporary Foreign Worker Program or the International Mobility Program and who could be subject to the new consequences for violating program conditions," Nolet said in an email to CBC News.

He said comments were also received from organizations representing foreign workers, the legal community and other levels of government, adding the federal government sent the proposed changesto more than 300 stakeholder groups.