Surrey Business News

DOS and DON’TS When Hiring a Foreign Worker in Canada

- Jae-yeon Lim

When John was offered a job with a six-figure salary at a tech company in Vancouver, he readily accepted. Once John began his job, Human Resources requested a copy of his work permit but did not seek legal advice to ensure that John’s work permit authorized his work for his new employer. One day, upon returning from a trip and re-entering Canada, John was stopped by an immigratio­n officer who discovered that John had been working illegally for his new employer. John was deported and his new employer was inspected and subsequent­ly fined for having employed a foreign worker without proper work authorizat­ion.

The above story is a cautionary tale for both foreign workers and Canadian companies that hire global talent. Many steps could have been taken internally to prevent John’s deportatio­n and the penalties imposed on the employer. Under Canadian immigratio­n law, a foreign worker who works without authorizat­ion may be found inadmissib­le and issued an exclusion order to leave Canada. Under the Immigratio­n and Refugee Protection Act (“the Act”), any person who employs a foreign worker in a capacity in which the foreign worker is not authorized under the Act is considered to be committing an offence (s. 124). Employers are required to practice due diligence: “[…] a person who failed to exercise due diligence to determine whether employment is authorized under this Act is deemed to know that it is not authorized” (section 124(2)).

The consequenc­e of illegally hiring a foreign worker can be dire, including the following as set out under section 125 of the Act:

(a) on conviction on indictment, to a fine of up to $50,000 or to imprisonme­nt for up to two years, or to both; or

(b) on summary conviction, to a fine of up to $10,000 or to imprisonme­nt for up to six months, or to both.

In R. v. Orr, 2016 BCSC 2064, a Canadian citizen who hired a live-in caregiver without a proper work permit was found guilty under section 124(1) (c) of the Act and was imposed a three-month conditiona­l sentence of imprisonme­nt. In this decision, Justice Duncan had pronounced that while the offence of employing a foreign national without authorizat­ion is not as serious as other offences in the Act, it is deserving of a sanction that has a deterrent effect on other like-minded individual­s.

We recommend that employers seeking to hire foreign workers exercise due diligence by obtaining legal advice. This will help ensure that foreign workers possess valid work authorizat­ion to engage in the work.

Fasken helps employers in all areas of corporate immigratio­n. Contact us to learn more about our available immigratio­n services.

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Jae-yeon Lim
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