In a recent decision with widespread implications for Canada’s business community, the Supreme Court of Canada has ruled that administrative monetary penalties, or “AMPs,” do not violate constitutional rights because they are not criminal in nature.
The case involved adviser penalties” found in the Income Tax Act aimed at professional tax advisers, planners and preparers – including lawyers and accountants. The ruling has broad implications for Canadian employers accessing the foreign labour market. Here is why.
Effective December 1, 2015, employers who violate the rules of the Temporary Foreign Worker Program and the International Mobility Program (which includes intra-company transfers and free-trade agreement work permit categories), could face harsh penalties.
Under the Immigration and Refugee Protection Regulations, the government now has a new arsenal of enforcement tools. Known as Administrative Monetary Penalties, AMPs are a regulatory compliance mechanism that allow for monetary penalties for incidences of non-compliance. Canadian employers who are found to be in violation of program terms and conditions could be subject to financial penalties ranging from $500 to $100,000 per violation, and up to maximum of $1 million in a one-year period. Violations will be weighted using a point system and penalties will be levied under a number of factors. In addition, the existing two-year ban from the programs will be replaced with bans of various lengths – including one, two, five and 10 years. Employers could face a permanent ban for the most serious violations. Employers who are banned will be published on the government web site.
Employers seeking to hire foreign workers are required to apply for a Labour Market Impact Assessment (LMIA) and demonstrate there is a need for the foreign worker to fill the job and that no Canadian worker is available. Employers are also required to include a transition plan to hire Canadians.
Administrative Monetary Penalties (AMP’s) are highly controversial. With planned inspections of 25% of Canadian employers hiring foreign workers in 2015, the introduction of AMP’s into the immigration landscape will lead to increased litigation. In 2014, the government received broad powers to conduct random on-site inspections, compliance reviews (often triggered by subsequent LMIA applications) and compel production of payroll records.
Where a preliminary finding of non-compliance is made, an employer has 30 days to respond. Until a final determination is made, pending LMIA applications will be suspended.
A final determination is made after a review of all factors. Where a negative finding is made (that does not result in a ban), an employer will be prevented from accessing the program until penalties are paid or agreements are reached.
Employers seeking relief from an unfavourable decision will be forced to seek judicial review before the Federal Court under the general leave provisions.
With the latest enforcement tools, employers in the know will carefully consider the merits and risks of accessing the temporary foreign worker program. Those with minimal alternatives must do so with strategic planning and must ensure adherence to comprehensive compliance policies.
Review the schedule of penalties here.
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