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Investigative and Enforcement Powers | dRN Law LLP

Investigative and Enforcement Powers

Employers are required to comply with certain conditions when they employ a temporary foreign worker through the Temporary Foreign Worker Program or the International Mobility Program. There are various means by which Employment and Social Development Canada (Service Canada) and Immigration, Refugees and Citizenship Canada (Immigration Canada) may review or inspect an employer’s compliance with the said conditions. 

An employer may be selected for a review or inspection due to:

  • An allegation or complaint;
  • A history of non-compliance; or
  • Random selection.

The Government of Canada now has a team of inspectors dedicated to investigating employer non-compliance and has vowed that one in four employers will be subjected to an inspection each year. Further, there is now a tip hotline and an online reporting tool to anonymously and easily report suspected employer non-compliance and ESDC has a mandate to investigate each and every allegation of employer non-compliance regardless of the merit of the allegation. 

Temporary Foreign Worker Program


Employer Compliance Reviews

Under the Temporary Foreign Worker Program, an employer or prospective employer is required to apply for a Labour Market Impact Assessment (LMIA), before a foreign national can apply for a work permit. 

When an employer submits an application for an LMIA, they may be selected for an employer compliance review (ECR) to verify their compliance with a previously issued positive LMIA. Service Canada has the authority to review an employer’s compliance for up to six years prior to the receipt of the new LMIA application.  

Service Canada will typically call an employer to inform them that they have been selected for an employer compliance review. Service Canada will then follow up the call with a letter sent to the employer via mail with the details of the said review. The letter will typically include the following information:

  • The LMIA that is the subject of the review;
  • The condition(s) which are under review and the documentation that Service Canada is requesting to verify the employer’s compliance with the said condition(s); and
  • The deadline for submission of the said documentation to Service Canada. 

The employer usually has 30 calendar days from the date of the letter to provide a response.

If an employer is selected for an employer compliance review, its pending LMIA application(s) will be placed “on hold” until Service Canada has completed the review.

Inspections 

Service Canada has the authority to conduct an inspection to assess an employer’s compliance for up to six years from the date on which the foreign national commenced work in Canada.

Service Canada has the authority to:

  • Conduct site visits without a warrant;
  • Interview the employer and ask relevant questions; and
  • Interview any employee (with their consent) and ask relevant questions.

If an employer is selected for an inspection, they are required to provide “all reasonable assistance” to the inspector(s) which includes the following:  

  • Reporting at any specified time and place to answer questions and provide documents;
  • Providing any documents or information required as part of the inspection; and
  • Attending any inspection at the worksite.

Reviews under Ministerial Instructions

The Minister of Citizenship and Immigration (the Minister) has the authority to issue ministerial instructions. The Minister can issue ministerial instructions compelling Service Canada to suspend or revoke previously issued positive LMIA or LMO confirmations or to refuse to process pending LMIA applications.

For example, on April 24, 2014, the Minister announced an immediate moratorium on LMIA applications for the food services industry. At the time, Service Canada immediately ceased processing any new or pending LMO applications related to the food services industry.

International Mobility Program


Employer Compliance Inspections

If a foreign national is applying for an employer-specific work permit under the International Mobility Program, their employer is required to submit an "offer of employment” (also known as an employer compliance application) to Immigration Canada via the Employer Portal before the foreign national can apply for a work permit. 

Employer compliance inspections are currently conducted by Service Canada on behalf of Immigration Canada and are usually paper based. Service Canada has the authority to review an employer’s compliance for up to six years from the date on which the foreign national commenced work in Canada. 

Similarly to employer compliance reviews, Service Canada will typically call an employer to inform them that they have been selected for an employer compliance inspection. Service Canada will then follow up the call with a letter sent to the employer via mail with the details of the said inspection. 

The letter will typically include the following information:

  • The reason(s) for the inspection, including details of any allegation(s) or complaint(s);
  • The condition(s) which are under review and the documentation that Service Canada is requesting to verify the employer’s compliance with the said condition(s); and
  • The deadline for submission of the said documentation to Service Canada. 

The employer usually has 30 calendar days from the date of the letter to provide a response.

In addition to paper-based inspections, Service Canada also has the authority to conduct on-site inspections on behalf of Immigration Canada. An inspection may be conducted at a corporate office and / or a worksite and Service Canada is not required to provide advance notice of the inspection to an employer. 

If an employer is selected for an inspection, the employer is required to provide “all reasonable assistance” to Service Canada. If an employer is non-responsive or refuses to cooperate during an inspection, they may be found to be non-compliant.