The Immigration Law Section of the Canadian Bar Association, in a letter to the deputy minister of Immigration, Refugees and Citizenship Canada, suggests improvements to program delivery regarding temporary foreign workers, in the context of the International Mobility Program, or IMP.
In August 2021 the Section commented with general satisfaction on pre-published regulations aimed at better protecting temporary foreign workers working in Canada. However, that same 2021 letter also raised concerns about the obligation for companies to have employment agreements to access the IMP. The latest letter offers additional suggestions to help Canadian compagnies comply with the law when they need temporary foreign workers.
Under current regulations, employers must attest that they have entered into an employment agreement with the foreign national whose conditions match what was in the offer of employment and that is signed by both parties.
The issue is that in many cases, the company completing the IRCC Employer Portal does not have an employment contract with the foreign national. The Canadian employer may have a contract for services with a foreign company that has entered into an employment contract or contract for services with the foreign national.
In such cases, the CBA letter explains, “the foreign company sends an employee(s) to Canada to undertake the work contemplated in the contract for services. These include, for example, management consulting agreements or contracts for repair services not covered by an after-sales service agreement.” The employer, in this case, is the foreign company and the contract is between that company and the foreign national.
The CBA Section points out that the regulations and the guidance offered on IRCC’s Employer Portal are contradictory. The former says the employer is the foreign company but on the portal it’s the Canadian company contracting the services of the foreign company “because it is your Canadian company that is creating the need for the temporary worker to enter Canada.”
This conflict creates a number of direct and indirect problems for Canadian companies, not the least of which is the potential for misrepresentation. But it also fails to address situations where a Canadian employer engages the services of a foreign national who is an independent contractor, not an employee.
“At minimum,” the CBA Section says, “we recommend that a new field be added to the Employer Portal that allows the employer to state that a contract for service with a foreign national applies and the contractual agreement assumes the place of an employment agreement.”
The Section adds recommendations covering situations where a foreign national is in and out of Canada in a cross-border role for a foreign company, and where the foreign national receives a raise, a promotion or an extension of their work permit, which rarely lead the parties to enter into a new employment agreement.
“In prescribing that a Canadian company retaining the services of a foreign national must present a written employment agreement to the foreign national, and setting out the form, terms and nature of that agreement, the Regulations encroach on an area of provincial jurisdiction,” the CBA letter says. “Since most provincial employment laws do not impose similar requirements on Canadian entities when employing Canadian citizens or permanent residents, complying with the regulation can result in a Canadian company having to treat employees differently based on their nationality and immigration status.”
In conclusion, the CBA letter says support for regulatory changes that aim to protect vulnerable temporary foreign workers should be balanced with enough flexibility to cover employment relationships that go beyond a Canadian employer directly hiring a foreign national.