Back to top


New Employer Compliance Requirements in Force

On September 26, 2022, amendments to the Immigration and Refugee Protection Regulations, SOR/2002-227 came into force placing additional compliance requirements on employers of temporary foreign workers under both the Temporary Foreign Worker Program (“TFWP”) – pursuant to a Labour Market Impact Assessment (“LMIA”) – and the International Mobility Program (“IMP”). The purpose of these measures is to provide better protection to Canada’s vulnerable temporary foreign worker population.

One significant change now requires all employers, both under the TFWP and the IMP, to enter into an employment agreement with the temporary foreign worker, in their Canadian official language of choice, that sets out the same occupation, wages and working conditions as those set out in LMIA or the offer of employment in the employer compliance filing (ss. 203(1)(g)(i), 209.3(1)(a.1), and 209.11(e)(i)). The agreement must be signed by both the employer and the temporary foreign worker, and a copy of the agreement must be provided to the temporary foreign worker (ss. 203(1)(g) and 209.11(e)(i)). For those under the TFWP, the agreement must be completed on or before the first day of a TFW’s work in Canada. Under the IMP, the agreement must be executed prior to the completion of the employer compliance filing, as the employer must attest to having completed this agreement at the time of the filing. Failure to do so is considered a Type A violation (Table 1 of Schedule 2).

Additional changes to compliance requirements also include:

  • Prohibitions from directly or indirectly charging or recovering certain fees from temporary foreign workers under both the TFWP and the IMP, including recruitment fees, LMIA processing fees, employer compliance fees, or costs of private health insurance required by the IRPR (see ss. 203(1)(e), 209.3(1)(a), 209.11(e), and 209.2(1)(a)) – Type C violation;
  • Requirements to ensure that third party recruiters do not recover certain fees from temporary foreign workers under both the TFWP and the IMP (see ss. 203(1)(e), 209.3(1)(a), 209.11(e), and 209.2(1)(a)) – Type C violation;
  • Requirements to provide reasonable efforts to provide access to health care services to temporary foreign workers under both the TFPW and the IMP in the event of injury or illness at the workplace (see ss. 209.3(1)(a) and 209.2(1)(a)) – Type C violation;
  • Requirements to provide temporary foreign workers under both the TFWP and the IMP with information regarding their rights in Canada prior to commencing work and making this information readily available throughout the temporary foreign worker’s employment (see ss. 209.3(1)(a) and (a.1) and 209.2(1)(a) and (a.1)) – Type B violation; and
  • Requirement for employers of some temporary foreign workers under the TFWP to obtain and pay for private health insurance that covers emergency medical care for any period during which the worker is not covered by applicable provincial health insurance (see s. 209.3(1)(a)(xiii)) – Type C violation.

In addition to the changes to employer compliance requirements, some minor amendments were made to the processing of LMIAs. First, Employment and Social Development Canada (“ESDC”) can now suspend the processing of LMIA applications when there is reason to suspect the employer has been non-compliant with certain conditions and the employer’s failure to comply would put at serious risk the health or safety of the foreign national if the work permit was issued (s. 203(2.02)). Amendments were also made to make payment of prevailing wage and affects on labour disputes stand-alone factors that, if not met, will result in the refusal of an LMIA application (s. 203(1.1)). Finally, employers who have not used the TFWP within six years prior to their application for an LMIA will be subject to additional requirements, including demonstrating that in the two years prior to the application, they have made reasonable efforts to provide a workplace free of abuse, and that they are not affiliated, as defined by the IRPR, with an ineligible employer or an employer in default of any amount payable with respect to an administrative  monetary penalty (s. 203(1)(f)).

The amendments also included the expansion of Employment and Social Development Canada and Immigration, Refugees and Citizenship Canada’s powers to require “any individual or entity” to provide any document in their possession that relates to the employer’s compliance with conditions under the regulations (s.209.7(1)(d), and the expansion of the definition of abuse to include reprisals against temporary foreign workers for reporting potential non-compliance (s. 196.2(1)).

In theory, these changes do appear to provide greater protections for temporary foreign workers, particularly the most vulnerable who need clear information regarding the employment conditions they should anticipate receiving and what their options are if they do not receive what they have been promised. The changes also ensure that the financial burden for recruitment and work permit applications generally remain on the employer, as the entity that requires the temporary foreign worker to address a labour issue. However, in practice, some of these changes have created added difficulties for many temporary foreign workers seeking entry to Canada under the IMP.

This article was also published in the Lawyers’ Daily at the following link: