The Temporary Foreign Worker Program: "a Last Resort"?

In the Immigration and Refugee Protection Regulations (IRPR), Parliament established Regulation 203 under Division 2 – Application for Work Permit as a means of permitting Canadian employers to fulfill their labour needs when unable to do so by relying exclusively on the pool of labour available in Canada.

This Regulation allows Canadian employers to apply to Employment and Social Development Canada (ESDC) for the issuance of a positive Labour Market Impact Assessment (LMIA), which would then enable the employer to hire a temporary foreign worker with the skills that the employer needs. The basic test that is set in the Regulation for the issuance of a positive opinion is whether “the employment of the foreign national is likely to have a neutral or positive effect on the labour market in Canada,” and that “reasonable efforts have been made to hire or train Canadian citizens or permanent residents.” This language, on its face, does not suggest that it should be particularly difficult for a Canadian business to apply and obtain a positive LMIA to bring a foreign national with the required skills to Canada. Unfortunately, as all immigration practitioners handling LMIA applications since the 2013 overhaul will openly confess, it is not easy to get LMIA approvals from ESDC.

Rather, ESDC administers the Temporary Foreign Works Program as a program of “last resort for employers to fill jobs for which qualified Canadians are not available.” Alternatively, the purpose of the program is described as operating as a “last and limited resort to address immediate labour needs on a temporary basis when qualified Canadians are not available." It is unclear, however, on what authority ESDC has crafted this higher test as it is not reflected in the statute and has yet to receive a clear endorsement in the two most relevant decisions of the Federal Court (Linamar Corporation v. Canada, 2017 FC 746 and Ahmed v. Canada, 2016 FC 197).

This higher test, coupled with requirements for transition plans, business legitimacy assessments, and so on, have left Canadian businesses struggling to cope with labour shortages. For instance, one recent report notes that 39 per cent of small and medium-sized businesses experience difficult in hiring:

Canada’s small and mid-sized companies must find ways to adapt to a “new norm” of worker shortages that will likely persist for a decade, says Pierre Cleroux, chief economist for the Business Development Bank of Canada.
They represent about 50 per cent of the Canadian economy. So they are very important. Also, they are very important in smaller communities,” Cleroux said in an interview ahead of a report issued Wednesday by the federal Crown corporation.
The BDC’s survey of 1,208 people from small and medium-sized businesses, with at least $500,000 in annual sales, found 39 per cent of them were having difficulties hiring the types of new workers they required.
The bank’s report comes ahead of Statistics Canada’s release on Friday of the labour force survey for the month of August. Last month, its national unemployment rate for July fell to a four-decade low of 5.8 per cent.
A private-sector analysis from the Canadian Federation of Independent Business released last month also found its “job vacancy rate” hit 3.1 per cent in the second quarter — a new high for a statistic calculated since 2004.

Likewise, the ManpowerGroup’s 2018 Talent Shortage Survey notes that talent shortages have reached a 12-year high. In Canada, this shortage is attributed to lack of applicants, a lack of experience, a lack of required hard skills, or a lack of required soft skills in 69 per cent of cases.

Again, the problem is that there is nothing in the statute that speaks to the hiring of temporary foreign workers as “a last resort.”  Instead, the language of the Regulations speaks of issuance of work permits when the need is proven and the other applicable criteria are met, as long as the “employment of the foreign national is likely to have a neutral or positive effect on the labour market in Canada.” This language is a far cry from “as a last resort” which has been clearly established as the legal test by the Administrators of the TFWP. Applying a different criterion not derived from the Regulation is inappropriate as it undercuts the Regulations, created by Parliament to assist Canadian businesses in meeting their labour needs, and ultimately frustrates Canadian businesses’ attempts to effectively meet their labour needs and address a growing skills shortage.

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