The Never Filled Blacklist of Canadian Employers

By Author: Admin | October 1, 2013

The Employer blacklist[1] (i.e. those employers who “have failed, without reasonable justification, to provide substantially the same wages, working conditions or employment in an occupation to any foreign worker as those that were set out in their job offer.”) has been in effect since April 1, 2011.  That list remains empty despite 218 temporary foreign workers lodging complaints alleging a violation of employment standards.

One reason is that employment standards are the responsibility of provincial governments, while the blacklist is maintained by the federal government.  Thus essential information sharing between these two levels of government is not taking place.

This structural failure of the Federal and Provincial Governments to communicate is consistent with the fact that despite the economic downturn since 2008 (which was followed by a brief respite from more foreign workers), there has been an increase of temporary foreign workers into Canada. This is in part because of practical policies put in place by a government ideologically conditioned to be sensitive to the interests of Canadian employers. These employers have complained often and loudly about the dearth of available labour -only partially explained by the ‘baby bust’  (i.e. retirees outnumbering young people entering the workforce).

Employers historically enjoyed the conditions of the TFWs, which forbade the foreign worker from working for rivals (without approval), and, until recently, permission to 85% of the prevailing wage. The Harper Government’s policies have, until recent revelations, not allowed a substantial scrutiny of employers. This had led to an empty “blacklist”.

The structural lack of communication has its analogue in the downloading of responsibility and hence expenses from provincial governments to municipal governments – the Federal government seeks to look accountable to the public with a vaunted ‘blacklist’ but relies on another level of government to carry out the necessary fact finding to hold rogue employers accountable. Indeed, until the recent imposition of processing fees imposed on the employer, the HRSDC had no funding to properly process applications.

One solution would be to recoup the cost of investigation on the guilty employer in the form of a fine. Currently the result of being on the blacklist is merely a two year ban on offering a job to a foreign worker.

Canadian employers are used to the crutch of cheap foreign workers.  In fact, ”The programs build employers’ economic and political reliance on the continuation and expansion of guest workers, as they begin to “make investment decisions that assume migrants will continue to be available”.

This has led  to more applications to import higher skilled workers on a temporary basis with less scrutiny in programs such as the intra-company transferee category where the scrutiny of Service Canada’s labour market opinion process is eliminated – thus depriving HRSDC of the ability to determine the impact of allowing a given foreign worker on Canada’s labour market. This was exploited very efficiently by the Royal Bank of Canada.

Given Canada’s demographic circumstances, it is generally preferable to limit foreign workers to those bringing high skills into Canada on a temporary basis (and then subsequently transferring those high skills to Canadian workers).  Low skilled foreign workers should be limited by increasing nominally the price of fast food, thereby attracting Canadian labour.

Given Canada’s historically regionally divergent labour needs and structure, it has made sense to devolve enforcement of most labour issues to the individual provinces. It may make sense as well to devolve issuance of labour market opinions to those entities as well, especially in the more populous provinces.

 Want to learn more about this matter? Call your Toronto Immigration Lawyer today at 416-447-6118!



[1] I prefer the official name of the list – “Ineligible Employers”.

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