Legal news and trends for Canadian in-house counsel and c-suite executives
Issue link: https://digital.canadianlawyermag.com/i/50873
talk of publishing "blacklisted" com- pany names on a public web site. The companies would also not be allowed to hire the same foreign worker for more than four years — that worker must wait another four years before reapplying. "The goal of the program is to address short-term labour market pressures," said Lariviere. If they want to work here permanently, they have to apply for permanent residency and citizenship. "At this point there are no exceptions," he said, but added "things are still being discussed." "From a regulatory perspective, you have to do what you say you're going to do," says Jennifer Nees, a senior associate with Bomza Law Group. "If you don't, there are going to be con- sequences — because right now there really aren't." And that's a good thing, she says, because it will hold employers accountable. The downside, she says, is the four- year cap on the labour market opinion — which helps determine the market need for foreign employees. That isn't a lot of time. An inter-company trans- feree under NAFTA or a senior execu- tive could be brought into Canada for a seven-year term, for example. For some foreigners it may not be possible to process a permanent resi- CANADA'S C anada has a long-term labour problem — the number of births per woman to maintain zero population growth is 2.1, and for more than 20 years Canada has had a lower rate than that. Add to that an aging baby boomer population, and you've got a declining birth rate. "I was in Fort McMurray a couple of years ago and people were offering $15 an hour to work at McDonald's," says Jeffrey Lowe, president of Lowe & Co. "Canada needs foreign workers, though some places need them more than oth- ers, in particular Fort McMurray, Edmonton, and Grande Prairie where you have a booming economy — they tend to boom and bust with the oil industry." The tobacco industry in Ontario and Quebec, or the fruit industry in British Columbia couldn't survive without sea- sonal agricultural workers, he says, primarily Mexican workers who come up for harvest and then go back home. The Temporary Foreign Worker Program is supposed to be like a thermostat that can be turned up and down, depending on demand. The problem is wages here are much higher than in India or Dubai, so it doesn't really work out like that. "The policy goal, I think, would be that they want people to fish or cut bait — you either immigrate or you don't," says Lowe. The problem is, with some of the low-skilled workers, they'd be only too happy to immigrate but they may not have enough points to do so, whereas the changes to the TFWP would target high-skilled westerners who can take it or leave it. — VH 32 • APRIL 2011 INHOUSE dence application within four years, unless they start it the second they come to Canada, which is also an issue. "You might not know until year two or three that Canada is going to fit, or maybe you've had kids," says Nees. "You're making people make these life decisions the second they come into the country." The most significant areas relate to compliance requirements and enforce- ment, says Alan Diner, head of the global mobility and executive transfer practice group with Baker & McKenzie LLP. Under the existing provisions, the feds could take action — there are fines and even imprisonment for contravention of the Immigration and Refugee Protection Act — but there isn't a strong tradition of doing so. Now Service Canada has some teeth to enforce compliance (about half of all foreign workers require a labour market opinion and have to go through Service Canada). If a company is found to be in vio- lation, and it's wilful, it will be barred from bringing in a foreign worker for two years and the company's name could be published on the blacklist. "For corporations, that's huge," says Nees. "That could affect your ability to get contracts . . . there are a lot of reper- cussions that companies have never had to face before." And at this point there is no appeals process. The new enforcement mechanisms are administrative tools, says Diner, which will arguably be easier to enforce than previous mechanisms. No longer will companies have to go to court and prove contravention of a federal act. What still needs to be addressed, however, is who is going to make the decision that you'll be published on this blacklist, he adds. The concerns "The regulations before didn't really offer any oversight or any real mecha- nism to hold the employer account- able," says Daniel Rowntree, a partner in the business law group and member of the business immigration practice area at McMillan LLP. "We're seeing these measures brought in as a means to that end, so reducing the potential for exploitation of foreign workers is something any employer would be sup- portive of." But it may add to the time and com- plexity it takes to process an application. "There's going to be a lot more we're going to need to include as part of our standard application package in order to prevent a delay or a denial," he says. LABOUR PROBLEM