March 7, 2016
Canadian Employer Compliance Regime: Ten Important Questions!
Since 2011, the Canadian Temporary Foreign Worker Program (TFWP)/International Mobility Program (IMP) has undergone a significant evolution to a program of last resort, which has been heavy on enforcement or more specifically, Canadian employer compliance. At the Ontario Bar Association Institute on February 2nd, 2016, I presented a paper on Canadian Employer Compliance Regime, Ten Important Questions! The questions included:
- Compliance Regime 2011-2015 – What are the Changes?
- What are the Legal Means to Review Employer Compliance?
- What are the Enhanced Enforcement Measures as of December 1st, 2015?
- What Legal Authority does ESDC have to Conduct an ECR?
- What Will Become of Ministerial Revocations, Suspensions and Refusals?
- Why are Key Terms in the TFWP Undefined?
- Are ESDC Officers Constrained by Policy?
- Are Administrative Monetary Penalties Capable of Attracting Charter Scrutiny?
- Are the Enforcement Measures Too Legally Broad?
- Should Employers Be Concerned About Collateral Provincial Proceedings?
These are all important questions. Given the breadth of these changes, I have dedicated a new chapter in the next update of Canadian Citizenship and Immigration Inadmissibility Law, 2nd Edition on the Employer Compliance Regime. One example of the myriad of issues these questions raise is under section 209.6, where an Officer or the Minister may compel an “employer to report at any specified time and place to answer questions and provide documents that relate to compliance with those conditions.”
There is nothing in the Regulations that speaks to the reasonability of the reporting requirement, nor are any limits placed on the documents that are to be produced, nor the questions that may be asked – except that they are to relate to compliance with the conditions set forth in sections 209.2 and 209.3 of the Regulations. The difficulty with this limitation is two-fold. First, the conditions are undefined, making it difficult to ascertain where the limits are on the examination. Second, the conditions address whether “substantially the same but not less favourable” “wages and working conditions” are being provided, but what is meant by this requirement is not publicly available or defined in law.
This is a fascinating area of evolving law and policy and it is an almost certainty that Federal and Provincial courts will be called upon to weigh in on defining the scope and legal authority of this new regime. Our firm remains heavily involved in a number of cases involving the compliance regime and each experience informs our understanding of the process that it is still so new.