While many of the recent changes to the Temporary Foreign Worker program have proven unpopular among employers, the changes are facing their first real opposition with a federal court challenge filed last week.
Employment and Social Development Minister Jason Kenney announced sweeping reforms to the heavily criticized Temporary Foreign Worker (TFW) program in June of this year, including significant changes to the LMO process by which employers get permission from the government to hire temporary foreign workers.
Among the changes instituted in June was the replacement of the Labour Market Opinion (LMO) process with a new and more stringent Labour Market Impact Assessment (LMIA) process. In order to increase the transparency of the TFW program and to ensure that the program is being used in the way it was intended, changes to policy enforcement for employers using LMIAs were also introduced. Alongside fines of up to $100,000 for misuse of the TFW program, a “blacklist” which makes public the names of employers who are being investigated for abusing the program and who have had their LMIAs revoked was introduced.
A couple from Labrador who found themselves on the government’s LMIA blacklist when their LMIA was temporarily suspended is now challenging the program in the courts. An LMIA suspension is temporary pending investigation, but during the investigation period the LMIA cannot be used by foreign workers to obtain a work permit from Citizenship and Immigration Canada (CIC).
The couple’s franchises, including Jungle Jim’s Restaurant and Greco Pizza, employ 20 temporary foreign workers approved under 5 LMIAs. 3 of their 5 LMIAs were suspended by Employment and Social Development Canada (ESDC), after finding that “there are reasonable grounds to suspect that the employers provided false, misleading or inaccurate information in the context of the request for that opinion.”
The couple’s court challenge covers a number of complaints about the new TFW program procedures and enforcement. The couple are arguing that ESDC and CIC violated their right to due process by not warning them that their LMIA could be suspended, failing to provide them with the allegations against them, and not allowing them an opportunity to respond and defend themselves against the allegations. They also were not informed that their company name would be published online on the ESDC’s blacklist.
The program changes themselves are also under attack, with the couple’s claim also arguing that the government changing public policy results in employers being unaware of the standards they are expected to meet to maintain their LMIAs, which is unfair to employers. The claim also questions the applicability of changes to the TFW program to employers who received their LMIAs prior to the reforms, asserting that “the presumption of the law is that new legislation does not apply retroactively, unless parliament explicitly provides for this retroactive application.”
The reforms to the Temporary Foreign Worker program have proven to be unpopular within a number of different Canadian industries, including the film and television industry, which will ensure all eyes are on this case as it moves through Canada’s courts.
FWCanada is a Montreal-based immigration law firm that provides professional legal services on Canadian immigration. For more tips and updates on Canadian immigration follow FWCanada on Facebook, Twitter, and Linkedin.
