Canadian Immigration Update – Large Monetary Fine for Donkin Mine

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.