Application of consequences where an employer is found non-compliant with the conditions

As of December 1, 2015, Immigration Refugees and Citizenship Canada (IRCC) has the regulatory authority under R209.996 to apply administrative tools, including warning letters, administrative monetary penalties and varied ban lengths to certain employers where an officer has determined, based on information obtained during an inspection and any other relevant information, that the employer committed a violation by failing to comply with one of the conditions set out in the provisions listed in column 1 of Table 1 of Schedule 2 and the failure to do so was not justified under subsections 209.2(3) or (4), or 209.4(2). These authorities build on the employer compliance measures introduced on December 31, 2013, including the Ministerial Instructions related to the revocation of work permits and suspended processing of work permit applications and regulatory conditions imposed on employers, and are tied to the overall objectives of the Temporary Foreign Worker and International Mobility programs.

Failure to comply with conditions occurred before December 1, 2015

If the failure to comply with the conditions occurred before December 1, 2015, the Regulations as they read before December 1, 2015 [see note], continue to apply. The employer will not be able to hire temporary workers through the Temporary Foreign Worker Program or the International Mobility Program for a period of two years starting on the date the decision was made.

Once the inspection is completed, the officer reviews all information and documents on file, including evidence gathered during inspection and information provided by the employer. If the officer has concerns that the employer is non-compliant with the conditions, a procedural fairness letter will be sent to the employer to provide any relevant information and justifications as set out in sections 209.2(3), 209.2(4) or 209.4(2) of the Immigration and Refugee Protection Regulations (IRPR). The employer has 30 days from the date on which the letter is deemed received to provide written submission after which a determination can be made. The employer may require an extension to provide written submission. This request can be granted if the employer requested an extension within 30 days from the date the letter is deemed received. The officer may extend the period if there is a reasonable explanation justifying the extension request.

If the employer failed to justify the non-compliance, the officer makes a determination regarding non-compliance with any conditions. As the result, the employer will be notified and the consequence for employers is that their name and addresses will be added to a list posted on the Department’s website [209.91(3)]. Work permits may not be issued to employers added to the list for a period of two years from the date of the determination.

If an employer is added to the public list, existing foreign workers in their employ may have their work permits revoked. If need be, the officer should consult Ministerial Instructions as published on December 28, 2013.

Note: The regulations as they read before December 1, 2015, with regard to consequences of non-compliance with section 209.2 or 209.4 conditions are:

R209.91 (1): If an officer determines, on the basis of information obtained by an officer or the Minister of Employment and Social Development during the exercise of the powers set out in sections 209.6 to 209.8 and any other relevant information, that an employer did not comply with any of the conditions set out in section 209.2 or 209.4 and that the failure to do so was not justified, the Department must notify the employer of that determination and must add the employer’s name and address to the list referred to in subsection (3). [Repealed]

R209.91 (3): A list is to be posted on the Department’s web site that sets out the name and address of each employer referred to in subsections (1) and (2) and 203(5) and the date on which the determination was made in respect of the employer.

The regulation section that stipulates the two year ban is R200(3)(h): An officer shall not issue a work permit to a foreign national if: the foreign national intends to work for an employer whose name appears on the list referred to in subsection 209.91(3) and a period of two years had not elapsed since the day on which the determination referred to in subsection 203(5) or 209.91(1) or (2) was made. [Repealed]

Failure to comply with conditions occurred on or after December 1, 2015

If failure to comply with conditions occurred on or after December 1, 2015, the employer is subject to a range of consequences possible from warnings, to administrative monetary penalties and ban.

The following guidelines should be used and ministerial instructions published on May 7, 2016 should be consulted, as needed.

R209.94 indicates that the purpose of the administrative monetary penalty (AMP) and ban system is to encourage compliance with the provisions of the Act and Regulations and not to punish. Officers should be mindful of this purpose when calculating points to determine consequences. Consequences should be proportionate to the condition breached and commensurate with the benefit the employer would derive from the non-compliance. Modifiers have been included in the Regulations for this purpose. They include:

  • Violations have been classified into three types (see Table 1 of Schedule 2);
  • A distinction is made between individual or small business and large business when determining penalties (see Tables 2 and 3 of Schedule 2);
  • Points may be added to reflect the compliance history and severity of the violation;
  • A violation that affects more than one foreign national constitutes a separate violation for each foreign national negatively affected; and
  • The total number of points may be reduced by four, if the employer makes an acceptable voluntary disclosure.

Inspection, notice of preliminary finding and final determination

To initiate an inspection, Case Management Branch (CMB) may conduct the desk inspection or may request that Employment and Social Development Canada (ESDC)/Service Canada (SC) conduct the inspection activities on behalf of IRCC. An inspection may be initiated from the first day of employment for which a work permit is issued up to a maximum of six years thereafter. For more information on employer inspections under the International Mobility Program refer to Employer compliance inspections.

If an officer assesses, on the basis of information provided by the employer or of any other relevant information or on the basis of evidence gathered during an inspection, that an employer has committed a violation because that employer failed to comply with one of the conditions set out in the provisions listed in column 1 of Table 1 of Schedule 2 and the failure to do so was not justified under subsection 209.2(3) or (4) or 209.4(2), the officer must issue a notice of preliminary finding to the employer [209.993(1)].

The employer is given 30 days from the date the notice of preliminary finding is deemed received [see note] to make written submissions regarding the content of that notice. Once that 30-day period has expired, a senior officer may make a final determination on compliance based on the documents and information obtained during the inspection, the assessment made by the officer who issued the notice of preliminary finding and the submissions made by the employer.

Note: A notice of preliminary finding is deemed to have been received 10 days after the day on which it is sent.

The 30-day period applies regardless whether the notice of preliminary finding was sent to the employer by mail or electronic mail.

The Instrument of Designation and Delegation designates specific positions within IRCC as decision makers in regards to inspections and determinations. For more information, refer to Designation of Officers and Delegation of Authority manual chapter IL 3.

Calculating points for violating conditions in Table 1 [R209.991(1)]

The process for determining the total number of points outlined in R209.991(1) of the IRPR applies in cases where the employer is found to be in violation of a specified condition outlined in Table 1 of Schedule 2 of the IRPR for a violation that occurred on or after December 1, 2015 and the violation is not justified under subsection 209.2(3) or (4) or 209.4(2).

Note: Ascribing points for a violation does not apply where the non-compliance occurred prior to December 1, 2015. In such cases, determinations of non-compliance that are not justified result in an employer’s name being added to the list posted on the Department’s website resulting in a mandatory two-year ban, regardless of the history of the employer and the severity and scope of violations.

Employer conditions

Sanctions are applied only when a final determination is made by a senior officer that an employer failed to comply with one of the conditions set out in provisions listed in column 1 of Table 1 of Schedule 2, and the failure to do so is not justified under subsection 209.2(3) or (4) and 209.4(2). For IRCC, there are nine employer conditions listed in Table 1 for which an AMP or a ban or both may be applied. The nine conditions are:

  • R209.2(1)(a)(i): Be actively engaged in the business in which the offer of employment was made, unless the offer was made for employment as a live-in caregiver.
  • R209.2(1)(a)(ii): Comply with the federal and provincial laws that regulate employment, and the recruiting of employees, in the province in which the foreign national works.
  • R209.2(1)(a)(iii): Provide the foreign national with employment in the same occupation as that set out in the offer of employment and with wages and working conditions that are substantially the same as — but not less favourable than — those set out in the offer of employment.
  • R209.2(1)(a)(iv): Make reasonable efforts to provide a workplace that is free of abuse within the meaning of paragraph 72.1(7)(a) of IRPR.
  • R209.2(1)(b)(i): Be able to demonstrate that any information provided in respect of a work permit application was accurate during a period of six years, beginning on the first day of the foreign national’s employment.
  • R209.2(1)(b)(ii): Retain any document that relates to compliance with cited conditions during a period of six years, beginning on the first day of the foreign national’s employment.
  • R209.4(1)(a): Report at any time and place specified, to answer questions and provide documents that relate to compliance with the conditions.
  • R209.4(1)(b): Provide the officer with any documents that relates to compliance with the conditions.
  • R209.4(1)(c): Attend any inspection, unless the employer was not notified. Give all reasonable assistance to the person conducting the inspection and provide that person with any required document or information.

A violation that is unjustified, of any of the applicable condition outlined above may be subject to a sanction. The sanction is determined through an assessment process that ascribes points for the violation(s), using criteria set out in Tables 4 and 5 of Schedule 2 of the IRPR. Tables 2 and 3 then provide the associated sanction(s) for the points.

Points are ascribed to violations by considering:

  • Compliance history – past violations (Table 4); and
  • Severity of the violation (Table 5);

Four points may also be subtracted if the employer provides an acceptable voluntary disclosure (PDF, 1.83MB) related to the violation before an inspection or enforcement action related to an offence arising out of the contravention of a provision has been initiated. The Regulations define several considerations to determine whether a voluntary disclosure is acceptable. See section on Voluntary disclosure below.

The total number of points is then used to determine the administrative monetary penalty (column 2, 3 or 4 of Table 2 of Schedule 2), or period of ineligibility (column 2, 3 or 4 of Table 3 of Schedule 2). For administrative monetary penalties, the amount will depend on the type of violation and whether it was committed by an individual or small business or a large business. The ban length will depend on the type of violation.

Note: It is important for Case Management Branch officers to consider that a justified violation under R209.2(3) or (4) or R209.4(2) applies both to non-compliance events that occurred before December 1, 2015 or after that date.

Voluntary disclosure

A voluntary disclosure (PDF, 1.83MB) is an unsolicited submission of information by an employer hiring foreign nationals under the International Mobility Program linked to that employer’s potential non-compliance with the conditions listed in R209.2. If the voluntary disclosure is found to be acceptable by an officer [see R209.991(2) and (3)], four (4) points will be deducted from the total points calculated under R209.991(1)(c) for the violation under assessment. If the point value obtained under R209.991(1)(c) is less than four, replacing that value with a value of zero.

Voluntary disclosure provides employers with the opportunity to disclose potential non-compliance of program conditions and promoting compliance which is in line with the principles of proportionality.

Voluntary disclosure only applies to potential non-compliance that has occurred on or after December 1, 2015. The Employer Compliance Voluntary Disclosure Form [IMM 5964 (PDF, 1.83MB)] is available on the IRCC website.

Voluntary disclosure is intended to encourage compliance by promoting regular self-monitoring by employers and disclosure. It is not intended to serve as a vehicle for employers to avoid any regulatory obligations.

General principles

  • A voluntary disclosure can be made for all types of violation (A, B or C).
  • Voluntary disclosure is a way for employers to proactively advise IRCC of potential non-compliance, and in so doing, if accepted, will receive a deduction of 4 points from the total number of points calculated under R209.991(1)(c) for that violation.
  • Not all information disclosed by employers would result in an inspection being triggered or in a determination that a violation was committed. An officer may only determine that an employer committed a violation following an inspection.
  • All disclosures should be made to IRCC using the Voluntary Disclosure form, and IRCC will acknowledge the receipt of voluntary disclosures.
  • If the employer made an acceptable voluntary disclosure in accordance with subsection R209.991 (2) and considering the factors in subsection R209.991(3), and the value obtained under paragraph 209.991(1)(c)
    • (i) is four or more, the officer subtracts four points from the value obtained under that paragraph , or
    • (ii) is less than four, the officer replaces that value with a value of zero.

An employer may be found to have committed more than one violation as a result of an inspection. As to the total number of points in respect of each violation is calculated separately, an acceptable voluntary disclosure, and the associated points’ reduction, is likewise applied to each violation separately. It is possible that an officer can find that the employer provided acceptable voluntary disclosure for some violations, and not for others. The points’ reduction would only apply for violations disclosed via an acceptable voluntary disclosure.

Acceptable voluntary disclosures

In order to determine the acceptability of a voluntary disclosure, officers must assess whether the criteria outlined in R209.991(2)(a) and R209.991(2)(b) are met and consider the factors outlined in R209.991(3)(a)(b)(c)(d) and (e).

To be deemed an acceptable voluntary disclosure, the disclosure must be complete and voluntary:

  • Completeness – R209.991(2)(a): The information and documentation provided must be complete as related to the violation(s) disclosed. For example, the employer should disclose the full scope of the non-compliance and the relevant condition(s) he or she failed to uphold. Omitting key details from a voluntary disclosure would render the voluntary disclosure incomplete.

  • Voluntary – R209.991(2)(b): At the time of the voluntary disclosure, there should be no other inspection underway, nor any enforcement action related to an offence arising out of the contravention of a provision of the IRPA undertaken in respect of the employer making the voluntary disclosure.

Voluntary disclosure considerations

R209.991(3) defines several considerations to determine whether a complete and voluntary disclosure is acceptable. They are:

  • Severity – To ensure proportionate consequences for violations, and uphold the objectives to protect foreign nationals working in Canada and the Canadian economy, a voluntary disclosure should only be accepted for violations that are not severe (not to be confused with Severity Table).

    An officer may wish to consider the following factors when determining the severity of the impact on the foreign national [R209.991(3)(a)]:

    • The number of foreign nationals negatively affected by the violation, even if that number is disclosed by the employer;
    • Whether any abuse of a foreign national took place as part of the violation (physical, psychological, sexual or financial);
    • Duration of non-compliance and remedial or preventative actions to date.

    An officer may wish to consider the economic gain the employer may have obtained as a result of the violation when determining the severity of the impact on the Canadian economy[R209.991((3)(b)].

  • TimelinessR209.991(3)(c): Acceptable voluntary disclosures must be made in a timely manner. In order to assess timeliness, officers may wish to consider the length of time that passed between the employer’s non-compliance and the voluntary disclosure made to IRCC disclosing those actions. For example, a period of up to a one year between the non-compliance and the disclosure may be viewed as timely, depending on the reasons for the delay.

  • FrequencyR209.991(3)(d): Officers should consider the number of times an employer has made voluntary disclosures. Previous violations and their consequences, even if reduced as a result of prior voluntary disclosures, should have resulted in changed employer habits, improved monitoring, and overall reduction of non-compliance. An officer may refuse to accept a voluntary disclosure if, in the officer’s view, the employer is using voluntary disclosures to his or her advantage while making little or no effort to comply with the International Mobility Program conditions in an ongoing manner.

  • NatureR209.991(3)(e): Officers should consider the nature (complexity) of meeting a condition in conjunction with the employer’s particular circumstances. This may include an assessment of the complexity of meeting the condition in conjunction with the employer’s particular circumstances. For example, some occupations may not have accurate or complete National Occupational Classification descriptions of job duties, or some employers may not be fully aware of strategies they can employ to make reasonable efforts to provide a workplace free of abuse.

Calculating points – determining consequence for violation

In order to determine the appropriate consequence for each violation, officers may follow the following process:

1 - Determine the type of violation (Employer Conditions – Table 1 of Schedule 2)

Officers must classify the type of violation before determining the consequence of the violation. The classification of violations into types reflects the view that some conditions have the potential for a lower impact on the Canadian economy or on foreign nationals than other conditions.

Each condition is classified into a type, A, B, or C, in Table 1. The type of violation is relevant when assessing compliance history (Table 4) and when determining the sanction, be it an AMP or ban or both sanctions, based on the total number of points for the violation (Tables 2 and 3).

Conditions related to IRCC are listed in the table below.

Table 1 – Employer conditions
Column 1
Provision
Column 2
Short-form Description
Column 3
Classification
Item # in the IRPR
209.2(1)(b)(i) Be able to demonstrate that any information provided in respect of a work permit application was accurate during a period of six years, beginning on the first day of the foreign national’s employment Type A 1
209.2(1)(b)(ii) Retain any document that relates to compliance with cited conditions during a period of six years, beginning on the first day of the foreign national’s employment Type A 2
209.4(1)(a) Report at any time and place specified, to answer questions and provide documents Type A 5
209.4(1)(b) Provide required documents Type A 6
209.4(1)(c) Attend any inspection, unless the employer was not notified, give all reasonable assistance to the person conducting the inspection and provide that person with any required document or information Type A 7
209.2(1)(a)(ii) Comply with the federal and provincial laws that regulate employment, and the recruiting of employees, in the province in which the foreign national works Type B 8
209.2(1)(a)(iii) Provide the foreign national with the same occupation and substantially the same, but not less favourable, wages and working conditions, as outlined in the foreign national’s offer of employment Type B 9
209.2(1)(a)(i) Be actively engaged in the business in which the offer of employment was made, unless the offer was made for employment as live-in caregiver Type C 15
209.2(1)(a)(iv) Make reasonable efforts to provide a workplace that is free of abuse within the meaning of paragraph 72.1(7)(a) Type C 17

Counting violations where conditions have multiple elements

Certain conditions have multiple elements (see items 9 and 17 of Table 1 of Schedule 2). Unjustified non-compliance with each element of those conditions constitutes a separate violation.

For example, the following conditions have more than one element:

Item 9 of Table 1 of Schedule 2: Provide the foreign national with employment in the same occupation and substantially the same, but not less favourable, wages and working conditions as outlined in the foreign national’s offer of employment. If all three elements in R209.2(1)(a)(iii)/item 9 were violated by an employer, each element, i.e., occupation, wage and working conditions, would be treated as separate violations.

Counting separate violations – number of foreign workers affected [R209.96(1)]

Where multiple foreign nationals were negatively affected by the employer’s non-compliance, every unjustified non-compliance of a condition affecting each foreign national is treated as a separate violation and assessed separately. For example, when wages are underpaid to five foreign workers, five foreign workers were negatively impacted and the incident is counted as five violations.

As per R209.96(2), a failure to comply — that is not justified under subsection 209.2(3) or 209.3(3) — with any one of the following elements of the condition set out in item 9 of Table 1 of Schedule 2, constitutes a separate violation:

  • to provide the foreign national with employment in the same occupation as the occupation that is set out in the foreign national’s offer of employment;
  • to provide the foreign national with wages that are substantially the same as — but not less favourable than — those set out in the foreign national’s offer of employment; and
  • to provide the foreign national with working conditions that are substantially the same as — but not less favourable than — those set out in the foreign national’s offer of employment.

Since points are assessed separately for each violation, the number of violations that occurred should be determined at the start of the points calculation, (that is, before determining severity or consequence). If it is determined that several violations occurred because more than one foreign worker was negatively affected, the assessment of severity (Table 5) should not be determined based on the combined number of violations involving the number of foreign nationals affected, in order to avoid double-counting.

2 - Assess the employer’s compliance history (Table 4)

Employers who commit repeat violations will face proportionate consequences depending on the type of violation (Type A, B, or C).

Once an officer has determined the type of violation in Column 3 of Table 1, the officer must assess the employer’s compliance history. Generally, in Table 4 - Compliance History, the number of points assigned increases for second, third and subsequent violations.

A “previous violation” is determined by IRCC or ESDC/ SC to have occurred following a different inspection (not the inspection results currently being assessed). Previous violations are to be included in the calculation of points under Table 4 as long as the non-compliance that led to IRCC or ESDC’s determination that a violation had been committed, took place on or after December 1, 2015.

  • First violation: Employer has not committed any violations previously (For Type A or Type B first violation, one point is accorded; for Type C first time violation; 2 points is accorded).
  • Second violation: The employer has committed the same type of violation previously (For Type A and B, 2 points accorded; for Type C, 3 points accorded).
  • Third violation or subsequent violation: The employer has committed the same type of violation three or more times (For Type A, 2 points accorded; for Type B, 3 points accorded; and for Type C, 4 points accorded).

If an IRCC officer is assessing the employer’s compliance history under the IMP, previous violations, including those resulting in warnings (see note), that were committed by the same employer under the TFWP should be counted in the assessment.

Note: A previous violation resulting in a warning (no applicable AMP or ban) counts as a violation for the purpose of calculating the compliance history points (Table 4) on any subsequent violations. Such violations will not appear on the list of employers who failed to comply with the conditions. Therefore, IRCC and ESDC/SC should contact each other before ascribing points on employer’s compliance history under both IMP and TFWP.

An officer will consider the classification of the current violation and then consider whether there have been previous violations of the same type. For example, if an employer has been found to be in violation of a Type C condition and they have committed one previous violations of a Type C condition, the employer would be accorded 3 points (Item 6 of Table 4).

There is no expiration on an employer’s previous violation. This means that all previous violations will be considered as long as they took place on or after December 1, 2015.

Table 4 – Compliance history
  Column 1 Column 2
Item Criterion Points
1. For Type A and B violations - a first violation 1
2. For Type A violations - a second or subsequent violation 2
3. For Type B violations - a second violation 2
4. For Type C violations - a first violation 2
5. For Type B violations - a third or subsequent violation 3
6. For Type C violations - a second violation 3
7. For Type C violations - a third or subsequent violation 4

Guidelines for counting violations

If multiple same-type violations were found in the same inspection, this counts as one previous violation for the purposes of Compliance History. Where there were multiple violations in the past, violations would be counted as follows:

  • The calculation for points (for compliance history table only) is parsed by inspection. When determining the number of previous violations for the “violation count”, the officer will look at previous inspections (on or after December 1, 2015) where a violation was found.
  • If multiple same-type violations were found in the same inspection, these violations of same type would count as one previous violation for the purposes of Compliance History.
  • Where the violation affected more than one foreign worker, each violation is counted separately.
  • For example, at the first inspection, there are three suspected type B violations (affected 3 foreign workers). These all count at the first violation since they all are within the same inspection, receiving each 1 point.
  • At the second inspection, there is one suspected type-B violation; therefore, this would be considered the second Type B violation committed by this employer, receiving 2 points.
  • At the third inspection, the two violations type C are both at a second count since they are part of the same inspection and the points are counted per inspection in this option; each receives 3 points for second violation.

3 - Assess the severity of violation [R209.991 (a)(ii)], adding points – Table 5

4 - Total the points to determine the sanction and ineligibility (Table 2 and 3 of Schedule 2)

Once an officer has ascribed the applicable number of points to the criteria in Tables 4 and 5 of Schedule 2, the officer must add those values together to obtain the total number of points per violation.

If the employer made an acceptable voluntary disclosure with respect to the commission of the violation, and the total number of points obtained above is four or more, four points shall be subtracted from the total. If the total value obtained is less than four, the total value shall be replaced with a value of zero.

The size of the business (whether the business is small or large) is a factor that must be assessed when determining the AMP amount (Table 2 of Schedule 2). The size of the business is determined based on the information provided by the employer on their offer of employment.

If an employer’s business size has changed since the offer of employment was submitted to IRCC, this has no bearing on the business size. This is because the employer agreed to uphold certain conditions when they submitted their offer of employment and they are to be treated based on information supplied at that time.

Small business: Any business, including its affiliates, that has equal to or fewer than 100 employees (Canadian citizens, permanent residents and foreign workers), or equal or less than $5M in annual gross revenue.

Large business: Any business with more than 100 employees and more than $5M in annual gross revenue.

As per section 209.93 of the IRPR, the determination of whether a business is “small” or “large” is made based on the job offer information submitted by the employer under R209.11(1)(d).

Where it is determined that an employer has violated multiple conditions, the points for each violation are assessed separately. Certain conditions have multiple elements (see items 9 and 17 of Table 1 of Schedule 2). Non-compliance with each element of those conditions constitutes a separate violation. As well, if more than one foreign national are affected, the points are assessed separately.

Once an officer has determined the total number points for a violation, the applicable AMP is the amount set out in column 2, 3 or 4 of Table 2 of Schedule 2 opposite the total number of points determined, depending on the type of violation and whether the employer is an individual or small business, or large business.

The applicable period of ineligibility is the period set out in column 2, 3 or 4 of Table 3 of Schedule 2 opposite the total number of points determined, depending on the type of violation.

Please see below for examples of how each violation is to be assessed separately by an officer:

Example 1: Occupations, wages and information provided on work permit application is not accurate

  • A Labour Market Impact Assessment (LMIA)-exempt employee slated to work in an IT company as an intra-company transferee based on specialized knowledge. The foreign national works as an IT expert in her home country office of the company, and in the Offer of Employment the employer indicated that the employee will occupy a position as a manager to help a team of IT employees in the Canadian company.
  • Six months after the arrival of the foreign national, a random inspection reveals that the foreign national never assumed the managerial position as per the offer of employment and that she has been doing coding work with a lower salary in Canada (difference of $600 per month in the past 6 months - (2% less of what was agreed-to compensation in the offer of employment) than what was stated in the job offer, and at a salary lower than a Canadian worker would be paid to do the same type of work.
  • Documents obtain during the inspection reveal that the employer had no intention to place the foreign national in a managerial position, therefore misleading both the foreign national and IRCC. In addition, email exchange between the employer and the employee provided by the foreign national herself shows that even though she had raised the issue of her wages and the fact that she was not fulfilling any management tasks, the employer did nothing to fix the problem.
The employer did not respect the following conditions:
  • Wages not the same/less than in job offer, R209.2(1)(a)(iii) – Type B
  • Occupation not the same than in job offer, R209.2(1)(a)(iii) – Type B
Analysis to attribute points:
  • The officer verified the list of employers who did not comply with the conditions. It is the first time the employer has been found to have committed a violation by failing to comply with conditions in IRPR.
  • The officer verified in the Global Case Management System (GCMS) that the employer has no warnings issued under the IMP. If employers previously received a warning letter under IMP, this would not appear on the public list.
  • The officer verified with ESDC that the employer has no warnings in the past and that no inspection activities are underway.
  • It is a small business.
  • The employer derived some economic and competitive benefit from violation (lower wage than he would have given to a Canadian employee).
  • No clear evidence that the employer was subject to an abuse. (an underpayment does not amount to financial abuse).
  • The violation involved some harm to the Canadian labour market, as no advertising was done for a Canadian IT expert; however it is clear in the regulations that ESDC has the mandate to assess the labour market and IRCC has the mandate to assess the Canadian economy. In this case, the impact on the Canadian economy is not significant.
  • Based on the information gathered during the inspection, the CMB officer assesses that when the employer discovered non-compliance, they did not make any reasonable efforts to minimize or remediate the impact of the violation. The employer acted in such a way as to aggravate the effects of non-compliance of the program conditions.
  • Based on the information gathered during the inspection, the CMB officer assesses that when the employer discovered non-compliance, they did not make any reasonable efforts to prevent a recurrence in the future. The employer actively took steps to prevent any corrections.
Assessment of points:
Modifiers Possible Points Points Assessed after first inspection
Violation 1
Wage is not the same as in the offer of employment
(Type B)
Violation 2
Occupation is not the same as in the offer of employment
(Type B)
Compliance History   1 1
The employer derived competitive or economic benefit from the violation 0 to 6 0 0
The violation involved abuse of a foreign national (physical, psychological, sexual, financial): no evidence of abuse 0 to 10 0 0
The violation negatively affected the Canadian economy: no evidence that the violation affected the Canadian economy 0 to 6 0 0
The employer did not make reasonable efforts to minimize or remediate the effects of the violation 0 to 3 2 2
The employer did not make reasonable efforts to prevent recurrence of the violation 0 to 3 2 2
Total Points 5 5
Consequence - AMP $7,000 $7,000
Consequence - ban none none
Total Penalty $14,000
No ban
Name published

Example 2: Wages with acceptable justification – LMIA exempted, multiple foreign nationals

  • Two foreign nationals obtained work permits to work in a construction equipment and tools company. Both employees have specialized knowledge and will work in managerial positions in the company.
  • The employer realized three months after the foreign nationals arrived in Canada that they were not paid appropriately due to an error in their payment system. The foreign nationals were underpaid $500 per month each in these three first months.
  • When he realized the mistake, the employer compensated the foreign nationals with the correct wage difference and he had a discussion with the Human Resources office and the payroll service of the business and problem was fixed.
  • The employer did not disclose the information to IRCC; this inspection was triggered randomly.
The employer did not respect the following conditions:

Wages not the same/less than in job offer, R209.2(1)(a)(iii)– Type B

Analysis:

During the inspection, the employer, owner of a large business, cooperates with IRCC officer and provides all the documentation requested. The employer provides to the officer the information regarding the two foreign nationals who were underpaid, provides proof that they were repaid and proof that the problem was fixed on the payroll system.

He mentions it was an honest mistake due to an administrative error and it was fixed properly. The officer takes into consideration the information provided and determines that this event is a justified non-compliance as per R209.2(3). Therefore this is not considered a failure to comply with conditions and the employer does not get any penalties and no warning. The outcome of this inspection will not be factored in any future inspections of the employer for the purpose of assessing the employer’s compliance history.

Maximum AMP and Permanent Ban

R209.992 provides that when employers commit more than one violation that results in an AMP, the AMP amounts are to be cumulative. The maximum AMP that may be assessed on a notice of preliminary finding or imposed on a notice or final determination must not exceed $1 million. Further, the total AMP imposed in a notice of final determination and all previous AMP amounts provided in notices of final determinations issued within the previous 12 months cannot exceed $1 million.

Example:

  • A non-compliant employer receives an AMP of $500,000 on January 30, 2016.
  • On March 30, 2016, the same employer is selected for a random inspection. Following the inspection, the information is analyzed and on September 1, 2016, an officer finds the employer has violated other conditions in the same year with other foreign nationals (i.e., between January 30 and March 30, 2016).
  • The officer calculates the points. As a result, the employer should receive an AMP of $600,000 under table 2 of the IRPR.
  • Given that the employer has already received a $500,000 AMP in 2016, the employer can only receive an AMP of $500,000 for the new violation, the total maximum amount of AMP in a one year period starting on the date of the first final determination on January 30, 2016).

Ban periods are not cumulative. The longest ban period applies in cases where an employer faces more than one ban period for different violations. For the most egregious cases (15 or more points), employers can be permanently banned from employing a foreign national for whom a work permit is required under the International Mobility Program and the Temporary Foreign Worker Program.

Procedural fairness: Notice of preliminary finding

If it is assessed following an inspection that a violation has been committed because the employer failed to comply with a condition and that failure was not justified under the IRPR as per R209.2(3) or (4)) or 209.4(2), a notice of preliminary finding must be issued to the employer. This notice is provided to address procedural fairness prior to a final determination being made by an officer by allowing employers the opportunity to know the case against them and to respond the officer’s concerns.

R209.993(3) outlines the information which must be contained in the notice of preliminary finding:

  • The name of the employer;
  • The condition(s) with which the employer failed to comply and the corresponding provisions;
  • Relevant facts surrounding the violation and the reasons for the preliminary finding;
  • If applicable, the potential administrative monetary penalty amount and the potential period of ineligibility or issuance of a warning; and
  • Statement that the employer may make written submissions within period set out in R209.994 (i.e., 30 calendar days after the day on which the notice is deemed received – 10 days after the day on which it is sent).

After a notice of preliminary finding is issued, employers have the opportunity to make written submissions within the 30-day period after the notice is deemed received.

A notice of preliminary finding may be corrected or cancelled at any time before a final determination is issued.

Application

  • Officers must include all required information on the notice of preliminary finding as outlined under R209.993(3).
  • Officers are to provide employers with a 30-day deadline, after the day on which it is deemed received, on the notice of preliminary finding to make written submissions. Documents are deemed received 10 calendar days after the notice of preliminary finding is sent to the employer meaning, once officers are prepared to send the employer the notice of preliminary finding, they should include a deadline of 30 days plus 10 days for deemed receipt on the letter sent to the employer.
  • Officers have the authority to correct or cancel information provided in the notice of preliminary finding at any time before a notice of final determination is issued under section R209.996; if new information comes to light (not as part of the written submissions made by the employer), a corrected notice of preliminary finding may be issued and the employer should be given a new 30 day period (plus 10 days for deemed receipt) to make written submissions.
  • If no submission is received from the employer, a final determination of non-compliance may be made based on the information available to the officer making the assessment (and for which the employer was provided an opportunity to respond).
  • If submissions are received from the employer, the information will be assessed by the senior officer making the final determination, who was not connected with the inspection activity or the preliminary finding of non-compliance.

Receiving employer’s submissions

R209.994(1)(b) provides employers with the authority to request a longer period to respond to a notice of preliminary finding. The Regulations provide that employers have 30 days after the day on which the notice of preliminary finding is deemed received to request an extension of that period. An officer has the authority to extend the employer’s period to respond to a notice of preliminary finding if there is a reasonable explanation justifying its extension.

Officers may wish to consider the following considerations when assessing whether there are justified reasons for an extension:

  • Extenuating circumstances beyond the employer’s control that result in the employer’s inability to produce the information in the 30-day, e.g.:
    • the accountant is on temporary leave;
    • there is difficulty contacting a worker by the employer;
    • there is a business emergency that requires immediate attention (e.g., the company supplies helicopters for search and rescue and there has been a large scale accident);
  • Extenuating personal or familial circumstances of the employer (e.g., illness, death);
  • Force majeure (e.g., there has been a fire, flood, earthquake etc.); or
  • Other circumstances beyond the employer’s control.

The officer may use his/her discretion as to the duration of the extension; however, the officer may wish to consider the reasons for the request when determining the length of the extension.

Corrections or cancellations of the notice of preliminary finding

Under section 209.995 of the IRPR, officers have the authority to correct, or cancel the notice of preliminary finding at any time prior to the notice of final determination is issued under section R209.996. Corrections or cancellations could be based on:

  • new information comes to light (not as part of the written submissions made by the employer) or information not previously considered by IRCC (e.g., via information sharing agreements); or
  • an administrative error (e.g., interpretation of the IRPR, inspection policy, an error in the calculation of points, etc.).

When a correction or cancellation is made by IRCC to the notice of preliminary finding, the reason for the change should be clearly documented in GCMS.

Whether a correction is in the employer favour (i.e., consequences for the employer are less than the consequences outlined in the notice of preliminary finding) or not in the employer’s favour (i.e., the consequences for the employer are greater), a new notice of preliminary finding is required to be issued to the employer, followed by a new 30-day period opportunity to respond.

If a cancellation of the notice of the preliminary finding is made, the employer should be informed in writing of the cancellation and the outcome of the inspection should be changed to satisfactory.

Reviewing employer non-compliance file by a senior officer

All written submissions may be provided by an employer during the 30-day period, as per section 209.994(1)(a). For procedural fairness, the officer assessing the new information submitted by the employer should be an officer that has not been involved in the inspection process for that employer, including the preliminary determination of a violation and/or points ‘assessment.

After documenting the employer’s written submission in GCMS, the officer who issued the notice of preliminary finding is to forward the entire inspection file along with the written submissions to the senior officer in Case Management Branch.

No changes or granting of extension

If a CMB officer does not recommend any corrections, cancellations of the NOPF, nor do they grant an extension, then a notice of final determination is issued.

Note: The above instruction also applies should the written submission from the employer arrive after the initial 30-day period, or the previously agreed-to extension period.

Calculating points

The senior officer follows the same calculation method that the first officer followed to calculate points before issuing the notice of preliminary finding. See above instructions for further details on calculating points.

Sending notice of final determination

Once an officer has issued a notice of preliminary finding and the employer has had an opportunity to respond to the findings, a senior officer not connected to the notice or preliminary finding (organizationally distinct) is responsible for assessing all the facts of the case, including the preliminary finding and the employer’s submission(s), if available.

An officer of IRCC must issue a notice of final determination if it is determined that a violation was committed because the employer failed to comply with a condition and that failure was not justified. This determination is final and binding except for judicial review.

If it is determined that the employer is compliant, a letter explaining the decision will be sent to the employer.

After reviewing the written submission provided by the employer or the record of Inspection provided by Service Canada’s Integrity Services Branch, the preliminary finding and the evidence gathered during the inspection, the officer making the final determination may make a determination different than the assessment made in the preliminary finding. A second preliminary finding would not have to be issued nor would a second opportunity to respond be given to the employer.

If, however, the officer making the final determination arrives at a different conclusion (than the officer who made the preliminary finding) based on information other than the written submissions made by the employer and information used to issue the preliminary notice (could be a tip or a new information provided by the foreign national), the employer should be given a second opportunity to respond. If warranted, the officer making the final determination should advise the employer of the new evidence and give them a specified amount of time to respond (reasonable length of time that would depend on the nature of the information that the employer is responding to and other relevant circumstances of the case). That same officer would then review the submissions made by the employer and make the final determination.

If new information comes to light (not as part of the written submissions made by the employer) before the file is transferred to the senior officer for final determination, a corrected notice of preliminary finding may be issued and the employer should be given a new 30 day period (plus 10 days for deemed receipt) to make written submissions. Please refer to above instructions on corrections of the notice of preliminary finding.

If the officer making the final determination, after reviewing the submissions made by the employer concludes that there are issues of credibility, the officer may decide to invite the employer for an interview.

Finally, if information comes to light that another violation was committed by that employer and this violation was not noted on the notice of preliminary finding, a new inspection should be triggered to confirm that violation followed by a separate notice of preliminary finding for that new violation.

Application

R209.996(4) outlines the information that must be included in the notice of final determination:

  • The name of the employer;
  • The conditions and provisions with which the employer failed to comply;
  • The relevant facts surrounding the violation and the reasons for determination;
  • If applicable, the AMP amount and the period of ineligibility and that the violation will be considered in the calculation of the total number of points for any subsequent violation;
  • If applicable, a warning informing the employer that there is no AMP for the violation but that the violation will be considered in the calculation of the total number of points for any subsequent violation;
  • If applicable, statement that the AMP must be paid within 30 days after the day on which the notice of final determination is received by the employer; and
  • How the AMP must be paid.

Warning letters

When to total points are fewer than two (2), the officer will issue a warning letter to the employer.

A warning letter counts as violation for the purpose of calculating points on any subsequent violations (for the purpose of assessing the employer compliance history); however, the employer’s name and the details of the violation do not get posted on a public website.

Documenting rationale for points assessed

The assessment of each criterion for a violation and the reasoning used to determine the points ascribed should be well documented and recorded in GCMS.

Adding the employer to the Public list, if applicable

Immigration, Refugees and Citizenship Canada is responsible for updating and maintaining the List of employers who have been non-compliant with the conditions imposed in IRPR under the Temporary Foreign Worker Program and the International Mobility Program.

Collecting administrative monetary penalties: when employers are in default of payment

When an AMP is imposed, information about the non-compliant employer and AMP will be established in IRCC accounts receivable system by IRCC-Finance.

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