HRTO to Employers: It is illegal to exclude candidates for not being eligible to work in Canada on a permanent basis

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Some employers ask candidates during the recruitment process whether they are allowed to work in Canada on a permanent basis, to help them identify if a work permit is required, either now or in the future. But is this legal?

Recently, the Human Rights Tribunal of Ontario (HRTO) pronounced itself on this issue in Haseeb v. Imperial Oil Limited, 2018 HRTO 957. Imperial Oil required applicants to confirm at various stages of the application process, both verbally and in writing, whether they were eligible to work in Canada on a permanent basis.

Haseeb applied for an entry level Project Engineer position at Imperial Oil while still a student at McGill University. He knew he would be eligible for an open Post-Graduation Work Permit valid for up to three years upon graduation. Believing that his candidacy would not considered if he was truthful, he advised Imperial Oil throughout the recruitment process that he met their permanence requirement. Imperial Oil was impressed by Haseeb and made him an offer containing a request to provide proof of citizenship or permanent resident status. When he was unable to do so, Imperial Oil withdrew the offer.

Imperial Oil maintained that it withdrew Haseeb’s offer not because he was unable to meet the permanence requirement, but because he misrepresented himself throughout the application process. Imperial Oil also defended its permanence requirement, explaining that while it waived the requirement in certain circumstances, there was no reason to do so for new graduates because (i) they do not have unique skills, (ii) there were plenty of candidates who met the permanence requirement to choose from, and (iii) it invested heavily in new employees and did not want to risk losing their investment in the event the new employee could no longer legally work in Canada.

The HRTO ruled in Haseeb’s favour. It found that Imperial Oil’s permanence requirement is discrimination based on citizenship, since it marked candidates as eligible or ineligible to progress further in the selection process based on their answer. As a result of the ruling, it is confirmed that it is illegal for an Ontario employer to exclude a candidate on the basis that he/she is not eligible to work in Canada on a permanent basis.

Ontario employers should review their hiring practices to ensure that there is no discrimination based on citizenship. Ontario employers should also contact both an immigration lawyer and an employment law lawyer to determine how to best mitigate risks associated with hiring a candidate that does not have the right to stay permanently in Canada at the time of their hiring.
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CILF is experienced in advising employers on foreign national applicants and devising both a short term and long term immigration strategy to facilitate the foreign national being able to remain in Canada. CILF was recently named one of Canada’s top 10 boutique immigration firms by Canadian Lawyer Magazine. Contact one of our immigration lawyers today for assistance.

Barbara Jo Caruso addresses CBSA flagpoling project and possible legal challenge in the Law Times

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Barbara Jo Caruso recently spoke to Law Times about Canada Border Services Agency’s flagpoling pilot project. Please click the link below for the full article.

https://www.lawtimesnews.com/author/michael-mckiernan/cbsa-may-face-legal-challenge-over-flagpoling-project-16247/

Canadian Immigration Update – Parental Sponsorship – First Come, First Served

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On August 20, 2018, Immigration, Citizenship and Refugees Canada (“IRCC”) announced that the Government of Canada will accept 20,000 applications to sponsor parents and grandparents – far more than the 5,000 allowed in 2014 when the program reopened. The cap for 2018, which has been met, is 17,000.
Despite increases in the quota, there are still far more interested candidates than there are available spots. Over the last two years, IRCC has employed a lottery system whereby sponsors would be randomly selected to apply after completing an Interest to Sponsor form at the beginning of the calendar year.
Starting in 2019, however, the invitations will be distributed based on the order in which IRCC receives the Interest to Sponsor forms – a first-come, first-served system. Individuals who receive invitations to apply must meet various eligibility requirements, including a minimum necessary income requirement.
It remains to be seen whether the online application system will be able to withstand the overwhelming traffic that is sure to result from candidates attempting to submit an Interest to Sponsor form as quickly as possible. Other government portal rollouts in recent years have been fraught with technical difficulties and periods of downtime. We are concerned that technical issues could undermine the fairness of the invitation process.
We expect further updates from IRCC on this topic in the coming months.
CILF is experienced in dealing with IRCC’s online portals and can help you navigate this critical and time-sensitive application. Contact one of our immigration lawyers today for assistance.

Canadian Immigration Update – Large Monetary Fine for Donkin Mine

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Last week the CBC reported that the employer of personnel at the Donkin Mine in Nova Scotia, Kameron Coal, has been slapped with Service Canada’s largest ever monetary penalties for abusing the foreign worker system. In a slight plot twist, the penalties, which include a fine of $54,000 and a one year ban on accessing the foreign worker program (so cannot bring in foreign workers on work permits), were levied for overpaying workers, rather than underpaying or otherwise mistreating workers. Foreign employees in some cases were being paid 120% of what was advertised in Canada before the Labour Market Impact Assessments were approved and foreign workers were permitted to take the positions. The case highlights the importance of following Labour Market Impact Assessment approvals to the letter.

Before a Labour Market Impact Assessment is sought, an employer must advertise the nature of the position, including all its benefits, to Canadians. If no qualified Canadians are willing to take the job, then an employer can seek foreign workers to fill the role – but only on exactly the same terms as were offered to Canadians in the advertising. The reason for this is that if foreign workers are paid more than was advertised to Canadians – the labour market has not been properly tested. Canadians might have come forward if the higher wage had been advertised. The system protects foreign workers from unscrupulous Canadian employers who try to underpay or otherwise take advantage of them, but it also protects the Canadian labour market and is there to ensure that Canadians are offered positions before temporary foreign workers are brought in to fill roles.

Employers should review the terms of all their LMIA approvals and make sure that any foreign workers on work permits supported by LMIAs are employed under exactly the same conditions as advertised and as approved by Service Canada. If any discrepancies are discovered – seek legal counsel to determine how best to deal with Service Canada. Service Canada is regularly auditing employers who have employees on LMIAs. Payroll and benefits information is being requested and scrutinized. In order to avoid the administrative and monetary penalties that Service Canada can and will levy, strict adherence to Service Canada’s approved terms and conditions is required.
CILF can help – we can provide proactive services and assist in setting up compliance programs to help manage the administration of your incoming and existing foreign workers and provide guidance on establishing compliance best practices. Contact one of our immigration lawyers today for assistance.

Canadian Immigration Update – Canada’s New Biometrics Program

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What is it?

Since 2013, applicants from 29 countries already provide biometrics to Immigration, Refugees and Citizenship Canada (IRCC).

Starting July 31, 2018, the Government of Canada is expanding its biometrics program to applicants from Europe, the Middle East and Africa. When applying for a Canadian temporary resident visa, study or work permit, permanent residence or refugee status, biometrics (fingerprints and photo) must be provided.

Beginning on December 31, 2018, the biometrics program will be rolled out for applicants from Asia, Asia Pacific and the Americas.

Applicants will only be required to provide their biometrics once every 10 years in order to facilitate frequent travel to Canada. There are exemptions for certain groups.

During the initial phase, in-Canada applicants will be exempt from the biometrics requirement due to a lack of facilities within Canada and U.S. nationals will not be required to provide their biometrics when applying for a work or study permit.

Who is exempt?

Exemptions will also be made for following groups of individuals:

  • Canadian citizens, citizenship applicants (including passport applicants), or existing permanent residents
  • Visa-exempt nationals coming to Canada as tourists who hold a valid Electronic Travel Authorization (eTA)
  • Children under the age of 14
  • Applicants over the age of 79 (there is no upper age exemption for asylum claimants)
  • Heads of state and heads of government
  • Cabinet ministers and accredited diplomats of other countries and the United Nations, coming to Canada on official business
  • U.S. visa holders transiting through Canada
  • Refugee claimants or protected persons who have already provided biometrics and are applying for a study or work permit
  • Temporary resident applicants who have already provided biometrics in support of a permanent resident application that is still in progress

Is there a government fee?

The costs for an individual applicant associated with providing his/her biometrics are CAD $85.  Families applying together will incur a maximum total fee of CAD $170.

Groups of 3 or more performing artists and their staff who apply for work permits at the same time will be facing a maximum total fee of CAD $255

If you or your employees require more information about how these changes will impact you, please contact a member of the professional team at CILF.

Top Immigration Talent Join Forces

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Barbara Jo Caruso and Corporate Immigration Law Firm are pleased to welcome respected immigration lawyers Joel S. Guberman and Lainie M. Appleby to our immigration law practice. With offices in Toronto, Ottawa and an affiliate office in Montreal, Joel and Lainie will complement our current legal team by continuing to provide in-depth, sophisticated and bespoke immigration advice to a broad range of clientele.

Joel and Lainie bring many years of Canadian immigration law experience and expertise in US immigration law to our firm. For more information about them, please see their bios linked below.

Joel can be reached at guberman@cilf.ca or at 416-304-9551.

Lainie can be reached at appleby@cilf.ca or at 416-304-9550.

We look forward to assisting you with Canadian and US immigration matters.

Enhanced Security Measures to the USA

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