Canada-British Columbia Immigration Agreement 2015 - Annex B

Annex B: Foreign Workers

2015

1.0  Preamble

1.1  Pursuant to the Department of Employment and Social Development Act (hereinafter referred to as the “DESD Act”), the powers, duties and functions of the Minister of Employment and Social Development extend to all matters relating to human resources and skills development in Canada or the social development of Canada over which Parliament has jurisdiction and which are not by law assigned to any other Minister, department, board or agency of the Government of Canada; and whereas the Minister of Employment and Social Development is authorized, pursuant to section 10 of the DESD Act to enter into agreements with provinces or territories for the purposes of facilitating the formulation, coordination and implementation of programs and policies related to the powers, duties and functions conferred by that Act. Pursuant to the Immigration and Refugee Protection Act (IRPA) and the Immigration and Refugee Protection Regulations (IRPR), the Department of Employment and Social Development provides Labour Market Impact Assessments (LMIAs) to employers and to the Department of Citizenship and Immigration in respect of offers of employment to foreign nationals.

1.2  Whereas subsection 8(1) of the IRPA and 5(1) of the Department of Citizenship and Immigration Act (hereinafter referred to as the “DCIA”) authorizes the Minister of Citizenship and Immigration, with the approval of the Governor in Council, to enter into agreements with provinces for the purpose of the IRPA and for the purpose of facilitating the formulation, coordination and implementation - including the collection, use and disclosure of information - of policies and programs for which the Minister is responsible; and whereas section 204(c) of the IRPR authorizes the issuance of work permits under section 200 of the IRPR to foreign nationals who intend to perform work pursuant to an agreement entered into by the Minister of Citizenship and Immigration with a province; this Annex constitutes an agreement in accordance with subsection 5(1) of the DCIA, subsection 8(1) of the IRPA and section 204(c) of the IRPR. This Annex shall be governed by the provisions of the 2015 Canada-British Columbia Immigration Agreement (CBCIA) in any matters not specifically addressed in this Annex.

1.3  For the purposes of this Annex, “Canada” means Canada as represented by the Minister of Citizenship and Immigration and the Minister of Employment and Social Development, unless otherwise indicated. British Columbia (BC) means BC as represented by the Minister of Jobs, Tourism and Skills Training and Minister Responsible for Labour.

2.0  Purpose and Objectives

2.1  The overarching purpose of this Annex is to allow Citizenship and Immigration Canada (CIC), Employment and Social Development Canada (ESDC) and BC to better work together to ensure that the Temporary Foreign Worker Program (TFWP) and the International Mobility Program (IMP) operate in the national interest while supporting provincial priorities, and that employers consider Canadians first for available jobs, where applicable.

2.2  More specifically, the objectives of this Annex are to:

2.2.1  outline the roles and responsibilities of CIC, ESDC, and BC in support of the TFWP and the IMP;

2.2.2  provide a mechanism for BC to recommend LMIA exemptions in accordance with this Annex, or any Appendix to this Annex, and recommend occupations eligible to receive priority LMIA processing in accordance with section 8.0 of this Annex; and

2.2.3  increase federal-provincial collaboration in the administration of the TFWP and the IMP through the implementation of common principles with respect to the protection of foreign workers.

3.0  Shared Principles

3.1  Canada and BC agree that:

3.1.1  the key objectives of the TFWP and the IMP are to enable Canada to pursue the maximum social, cultural and economic benefits of immigration and to ensure that the work performed by foreign workers continues to promote Canada’s economic and labour market interests;

3.1.2  collaboration is required to support BC’s key provincial economic development priorities and address BC’s unique labour market needs in a manner that is consistent with the overall national objectives of the TFWP and IMP;

3.1.3  enhanced cooperation and coordination between Canada and BC will support the common goals of improving the integrity of the TFWP and the IMP in BC;

3.1.4  measures to strengthen the LMIA process are required to ensure the robustness and integrity of the TFWP;

3.1.5  an enhanced role of BC to recommend occupations for priority LMIA processing will help support regional economic goals;

3.1.6  increased protection of Foreign Workers is essential to their successful participation in workplaces and communities and to maintaining the integrity of the TFWP and the IMP; and

3.1.7  information sharing between Canada and BC is required to administer, enforce, and maintain the integrity of the TFWP and the IMP. 

4.0  Definitions

4.1  In addition to the terms defined in the 2015 CBCIA, the following definitions apply to the terms of this Annex:

1. “Annex” means this Annex and the Appendices attached to it;
2. “Exceptional and Unforeseen Event” is a temporary situation during or following an event that poses a significant risk to people’s lives, health, general safety, property and/or the environment;
3. “Highly Mobile Capital” is uncommitted corporate funds that can easily move across provincial, territorial and/or national boundaries and is subject to a corporate positive investment decision;
4. “High Wage Occupation” means a position at or above the BC median wage;
5. “In-demand Occupation” means high wage occupations, recommended by BC and approved by ESDC, and which have been identified using the methodology developed as per section 8.3 of this Annex;
6. “International Mobility Program” or “IMP” means the functions under the IRPA and the IRPR that allow the Government of Canada to authorize foreign nationals to work temporarily in Canada, without the requirement for a LMIA;
7. “Labour Market Impact Assessment” or “LMIA” is the opinion provided by ESDC to employers or CIC in accordance with section 203 of the IRPA. In assessing LMIA requests, ESDC considers whether the employment of a foreign worker is likely to have a positive or neutral effect on the Canadian labour market. The LMIA is used to support the application of a foreign national for a work permit when required under the IRPR;
8. “Significant Investment Project” means a new endeavour in an existing firm’s operations, or the entrance of a firm that is beginning operations in BC, that will result in a substantial improvement to the provincial labour market or economy, without displacing jobs for Canadians;
9. “Foreign Worker” means a foreign national who has been authorized to work temporarily in Canada under the IRPA and the IRPR; and
10. “Temporary Foreign Worker Program” or “TFWP” refers to the ESDC program under which an employer who wishes to hire a foreign worker must obtain a LMIA.

5.0  Roles and Responsibilities

5.1  CIC is responsible for:

5.1.1  Administering the IMP and issuing work permits under the TFWP in accordance with the IRPA and the IRPR and any amendments thereto; and

5.1.2  Assessing and rendering decisions on proposals by BC for Significant Investment Projects or Exceptional and Unforeseen Events in accordance with the criteria outlined in sections 6.0 and 7.0 of this Annex.

5.2  ESDC is responsible for:

5.2.1  Administering and enforcing the TFWP in accordance with the IRPA and the IRPR and any amendments thereto.

5.2.2  Supporting the assessment of recommendations by BC for LMIA exemptions under Significant Investment Projects and/or Exceptional and Unforeseen Events as outlined in sections 6.0 and 7.0 of this Annex; and

5.2.3  Assessing and rendering decisions on recommendations by BC for occupations to be eligible for priority LMIA processing and reviewing the list of occupations as outlined in section 8 of this Annex.

5.3  BC is responsible for:

5.3.1  Submitting proposals with recommendations for LMIA exemptions for Significant Investment Projects in accordance with identified criteria in section 6.0 of this Annex.

5.3.2  Recommending LMIA exemptions to address urgent labour needs, not already provided for under the IRPR, on a temporary basis, as a result of an Exceptional and Unforeseen Event, in accordance with identified criteria in section 7.0 of this Annex.

5.3.3  Recommending High-Wage, In-demand Occupations that would be eligible for priority LMIA processing, in accordance with identified criteria in section 8.0 of this Annex.

5.3.4  Reviewing, and proposing updates to the list of occupations eligible for priority LMIA processing, on an annual basis in accordance with section 8.0 of this Annex.

6.0  Significant Investment Projects

6.1  A Significant Investment Project must involve a situation that is not well-suited to the LMIA process and is not captured by existing LMIA exemptions and/or work permit exemptions under the IRPR.

6.2  Proposals for LMIA exemptions for Significant Investment Projects must be submitted in writing by BC to the CIC and ESDC Focal Points identified in section 14.0 of this Annex.

6.3  Proposals for LMIA exemptions for Significant Investment Projects must meet the elements outlined in Appendix A to this Annex.

6.4  Proposal(s) for Significant Investment Projects will be assessed by Canada in accordance with Appendix A to this Annex, and will be subject to ongoing bilateral discussion between Canada and BC.

6.5  Proposals for Significant Investment Projects and any amendments thereto, will be approved at the Assistant Deputy Minister level for CIC and BC.

6.6  The review of Significant Investment Projects approved pursuant to this Annex will take place no more than one year after the date of implementation of the project, and every two years thereafter for long-term projects, or as per the schedule agreed to by BC and CIC.

7.0  Exceptional and Unforeseen Events

7.1  BC may recommend LMIA exemptions that are not otherwise covered under existing LMIA exemptions or work permit exemptions in the IRPR, to address urgent labour needs, on a truly temporary basis, as a result of an Exceptional and Unforeseen Event, such as a natural or industrial disaster.

7.2  Requests for LMIA exemptions to address urgent labour needs must be provided in writing by BC to the CIC and ESDC Focal Points identified in section 14.0 of this Annex.

7.3  Requests for LMIA exemptions to address urgent labour needs must meet the elements described in Appendix B to this Annex.

7.4  Request(s) for LMIA exemptions to address urgent labour needs will be assessed by Canada in accordance with Appendix B to this Annex, and will be subject to bilateral discussion between Canada and BC.

7.5  Requests for LMIA exemptions to address urgent labour needs, and any amendments thereto, will be approved at the Assistant Deputy Minister level for CIC and BC.

8.0  Provincial Involvement in the Labour Market Impact Assessment Process

8.1  A process to allow BC to recommend High Wage, In-demand Occupations for priority LMIA processing (10-day processing service standard) may be developed within six months of this Annex coming into force.

8.2  Under this process, BC agrees to respect federal TFWP principles and objectives, and Canada’s responsibility in delivering the TFWP pursuant to the IRPA and the IRPR.

8.3  BC and ESDC will jointly establish an evidence-based methodology to support the identification of a list of In-demand Occupations for priority LMIA processing. The methodology must include the following criteria:

8.3.1  Available information that provides evidence of labour market shortages for the occupation; and

8.3.2  Wage offered for the occupation is above the BC median wage for all occupations as established by the annual Labour Force Survey.

8.4  Requests for recommended occupations eligible for priority LMIA processing will be provided in writing by BC to the ESDC Focal Point identified in section 14 of this Annex.

8.5  ESDC reserves the right to limit the number of occupations on the list of In-demand Occupations based on its operational ability to meet the 10-day processing service standard.

8.6  ESDC and BC will meet at least once annually to review recommended updates to the list of occupations for priority LMIA processing.

8.7  The list of occupations for priority LMIA processing will be approved once annually at the Director General level for ESDC and BC.

8.8  All approved In-demand Occupations for BC will be posted on ESDC’s website.

9.0  Foreign Worker Protection

9.1  Canada and BC agree to collaborate on programs and initiatives to enhance the knowledge of, and access to, provincial services for Foreign Workers in BC.

9.2  Canada and BC agree to collaborate to inform employers hiring Foreign Workers about their obligations under the applicable federal and provincial laws, including those that regulate employment and recruitment of employees.

9.3  Canada and BC will jointly identify and assess current challenges and best practices with respect to Foreign Worker protection and will collaborate in the development of principles, measures, and mechanisms to increase Foreign Worker protection.

9.4  If Canada or BC determines that there is a real and substantial risk to a foreign worker as a result of an employer not complying with federal or provincial laws, Canada and BC will jointly undertake actions to mitigate such risk, including, where appropriate, issuing a new LMIA through the priority LMIA process, or issuing a new work permit without the need for an LMIA provided that the Foreign Worker meets all other requirements of the IRPR.

9.5  Canada and BC will establish clear and transparent criteria and procedures to assist in meeting the obligations outlined in section 9.4 of this Annex.

10.0  Dispute Management and Resolution Procedures

10.1  Canada and BC are committed to working together to implement this Annex. Under this partnership, all parties contribute with their respective policies, programs, capacity, and expertise and recognize and respect each party’s different roles and responsibilities under this Annex.

10.2  In the case of a Dispute under this Annex, the Focal Points identified in section 14.0 of this Annex will attempt to resolve the matter through information sharing, communications and informal discussions.

10.3  In the event that the Focal Points are unable to resolve the Dispute expeditiously, it will be referred to Assistant Deputy Ministers, accompanied by relevant facts and steps taken to reach resolution. Such procedures will provide equal opportunities for representation by each signatory, establish clear time limits, and ensure clarity for the implementation of final decisions. Further, in the event resolution is not reached within 30 days of being raised with Assistant Deputy Ministers, the parties will jointly determine next steps.

10.4  CIC, ESDC or BC may refer the matter to the Deputy Ministers by providing a written notice to the signatories.

10.5  CIC, ESDC and BC will exchange all relevant information and engage in bilateral discussions in an attempt to clarify and resolve the Dispute. Deputy Ministers will:

10.5.1  Provide equal opportunities for representation;

10.5.2  Attempt to resolve disputes within 30 days; and

10.5.3  Ensure clarity for the implementation of final decisions.

10.6  Should the Dispute be resolved, Deputy Ministers will oversee the drafting of a short report identifying the issues that have been resolved, specific actions and timelines required to implement the resolution.

10.7  If Deputy Ministers are unable to resolve the Dispute within 30 days from the date of its referral to them, they will determine the appropriate course of action for its resolution, including elevating the Dispute to Ministers.

10.8  Ministers will provide advice and direction to their officials on an appropriate course of action to resolve the Dispute.

10.9  This Dispute management process shall not in any way limit the final authority of the Ministers or the designated officers of CIC or of ESDC respecting the interpretation and administration of the IRPA or the IRPR in accordance with their respective authorities/responsibilities.

11.0  Exchange of Information

11.1  CIC and ESDC shall develop separate mechanisms to facilitate information sharing with BC, including the sharing of Personal Information, as required.

12.0  Governance

12.1  Canada and BC agree to:

12.1.1  meet in support of ongoing discussions with regard to the TFWP and the IMP, as required, and to oversee the implementation of this Annex; and

12.1.2  meet annually to review this Annex. More frequent discussion or consultation regarding this Annex may take place among the Focal Points, or delegates, as needed and as mutually agreed to by Canada and BC.

13.0  Duration and Amendments

13.1  In accordance with section 10.7.2 of the General Provisions of this Agreement and with section 13.2 of this Annex, this Annex will be valid for five (5) years from the date of this Annex coming into effect.

13.2  This Annex will take effect on the date that it is signed by the last of the signatories and when the General Provisions of the Canada-British Columbia Immigration Agreement are signed by both Parties.

13.3  Canada and BC agree to review the effectiveness of this Annex no later than twelve (12) months prior to its expiry.

13.4  Upon the mutual written consent of CIC, ESDC and BC, the term of this Annex can be extended at any time prior to its expiry, subject to any required approval or authorization including the approval of the Governor in Council.

13.5  This Annex may be amended at any time by the mutual written consent of CIC, ESDC and BC, subject to any required approval or authorization including the approval of the Governor in Council.

13.6  CIC, ESDC or BC may terminate this Annex at any time by providing at least twelve (12) months’ notice in writing to the other signatories.

13.7  Unless expressly terminated, all provisions of this Annex and any amendments to it will continue to operate and be effective, notwithstanding any termination of the General Provisions of the 2015 CBCIA itself.

14.0  Focal Points

14.1  The Focal Points for the purpose of communication and notification pursuant to this Annex are:

1. For CIC: the Director, Temporary Resident Policy, Immigration Branch, 365 Laurier Avenue West, Ottawa, Ontario, K1A 1L1;
2. For ESDC: the Director, Program and Policy Design, Temporary Foreign Worker Program, Skills and Employment Branch, 140 Promenade du Portage, Gatineau, Quebec, K1A 0J9; and
3. For BC: the Director, Immigration Policy, Policy and Stakeholder Relations Branch, Labour Market and Immigration Division, Ministry of Jobs, Tourism, and Skills Training and Responsible for Labour, 1106 Cook St., PO Box 9213 Stn Prov Govt, Victoria, BC, V8W 9H7.

15.0  Notices

15.1  The Focal Points referenced in section 14.1 of this Annex undertake to give one another notice of any change in policy, regulations or legislation relating to their respective programs that is likely to affect this Annex.

15.2  In addition to those identified in section 11.1 of the General Provisions of the 2015 CBCIA, and the Focal Points referenced in section 14.1 of this Annex, any notice to be delivered under this Annex should also be sent to the signatory concerned as follows:

Deputy Minister
Employment and Social Development Canada
140 Promenade du Portage
Gatineau, Quebec K1A 0J9

for the Government of Canada

for the Government of British Columbia

Appendix A: Proposals for Significant Investment Projects

A proposal for Significant Investment Project LMIA exemptions must include the following information:

1. Objectives
2. Description of the project activities, including a description as to whether and how they meet each of the following criteria:
   1. Involve Highly Mobile Capital whose labour is drawn from a global talent pool;
   2. Result in a quantifiable significant investment in the BC economy;
   3. Demonstrate local government support;
   4. Limited to High Wage Occupations;
   5. No significant displacement of employment of Canadians and permanent residents;
   6. Employers participating in the project will remain in compliance with any applicable federal or provincial laws; and
   7. Result in knowledge transfer to Canadians and permanent residents (where applicable).
3. Description of the proposed occupations to be eligible for LMIA exemptions within the Significant Investment Project, the duration of the proposed LMIA exemptions, the anticipated number of positions required, and the specific locations in which Foreign Workers would be hired to work.
4. Expected Outcomes/Benefits
5. Implementation Plan
6. Evaluation Plan

Appendix B: Elements for Exceptional and Unforeseen Events

1. Canada and BC agree that request(s) for LMIA exemptions to address urgent labour needs in the case of an Exceptional and Unforeseen Event must include the following elements:
   1. Purpose/Rationale, including a description of how the LMIA exemptions will demonstrate that:
      1. Foreign Workers are needed for work in response to an Exceptional and Unforeseen Event where restoration/reconstruction of a community or area is required due to significant loss/damage; and
      2. Reasonable efforts have been made to reach out to other provincial or territorial jurisdictions for available workers.
   2. Description of the proposed occupations to be eligible for LMIA exemptions, the anticipated number of positions required, and the specific locations in which foreign workers would be hired to work.
   3. Expected Outcomes
2. Work permits issued in response to an Exceptional and Unforeseen Event should generally not exceed 120 days in duration in order to address short-term and urgent labour needs, and should be issued within the first twelve months following the occurrence of the Exceptional and Unforeseen Event. In rare circumstances under which the response to the Exceptional and Unforeseen Event is ongoing and the LMIA process would hinder restoration/reconstruction efforts, work permits can be renewed according to terms agreed to by CIC and BC.
3. Canada and BC will review the use of LMIA exemptions for any Exceptional and Unforeseen Event according to timelines appropriate to the situation.