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