In addition to the general concerns over the LMIA process, witnesses spoke of other aspects of the TFW Program that, while often linked to the LMIA, tended to be more stream-specific. This is because, as illustrated above, each stream has its own set of requirements. The following are the main concerns identified by the witnesses with regards to specific aspects of the program streams.

A. High-Wage Stream

1. Transition Plans

Employers who wish to hire temporary foreign nationals in high-wage stream positions have been required to submit Transition Plans with their LMIA applications since June 2014. In their assessment of this requirement, witnesses expressed concerns over the fact that Transition Plans are “ill-suited” or “unrealistic” for companies looking to hire highly specialized individuals, such as top global innovators or specialized health professionals, who often cannot be found domestically. These individuals, they noted, not only fill temporary labour needs but also help train Canadians, thereby lessening the reliance on temporary foreign labour in the long-term. For the high-tech industry, which operates on fixed-term employment contracts and is often in need of securing employees within short deadlines, requirements like the Transition Plan and the LMIA were described as particularly onerous.[38]

The labour shortage of high-skilled workers is well-documented. In a brief submitted by the Canadian Bar Association, it was noted that “[w]hile education and training for Canadians will have some positive impact on the supply of high-skilled workers in the medium and long-term, Canadian businesses will continue to require reasonable access to high-skilled foreign workers.”[39] According to the Canadian Bar Association, this labour shortage is the result of a low birth rate, lack of population growth, as well as a large wave of retiring baby-boomers.[40]

Representatives from organizations that hire workers under this stream, such as the Entertainment Software Association of Canada, Technicolor, Montreal International and the Information Technology Association of Canada, have recognized that, despite significant training initiatives in place, it will take some time before these individuals can contribute to filling the labour gap. These initiatives have included training Canadians from an early age as well as engaging in innovative ways to recruit women in the high-tech industry.[41]

Witnesses suggested a number of options to better address the needs of employers and workers in the high-wage stream, including abolishing the Transition Plan requirement or, in the case of the high-tech industry, reinstating the federal IT Workers Program that exempted designated technology occupations from the LMIA requirement. Should the Transition Plan requirement be kept in place, however, witnesses asked that they be allowed to submit either a company-wide or an industry-wide Transition Plan on a yearly basis. This last measure would ease the administrative burden on both the applicant company as well as on Service Canada officers, witnesses noted. According to the Vancouver Economic Commission, another possible solution could be establishing a High Skilled or High Economic Benefit Professional Worker Program as a dedicated stream for industries employing high-skilled temporary foreign workers, such as the high-tech industry.[42]

Alternatively, rather than requiring a Transition Plan setting out the company’s initiatives to transition to a Canadian workforce, witnesses suggested the TFW Program could be used to increase training opportunities. For example, they spoke of using the program to create mandatory apprenticeship training opportunities for Canadians, which would ensure the transfer of knowledge domestically and lessen the reliance on temporary foreign labour over time. Christopher Smillie, senior advisor for Canada’s Building Trades Unions, suggested this approach could be very useful for Canadian skilled trades workers as, currently, only 19% of Canadian companies actually hire and train apprentices.[43]

B. Low-Wage Stream

1. Cap on the proportion of the workforce that consists of low-wage temporary foreign workers

Witnesses appearing before the Committee also expressed concerns over the fact that employers with 10 or more employees applying for a new LMIA are now subject to a 10% cap on the proportion of their workforce that consists of low-wage temporary foreign workers. For employers who were originally above the threshold, the cap has been phased-in over a three-year period beginning July 2014 and is currently at 20%.

Witnesses from various sectors of the Canadian economy, such the seafood, hospitality and meat processing industries, reported challenges with respect to finding enough Canadians to fill available positions and spoke of the impact that the cap has had on their production levels.

Representatives from the Maritime Seafood Coalition explained that, prior to the introduction of the cap, the Maritime seafood industry had already been suffering from a labour shortage as a result of an aging workforce and outmigration. Sectors such as the lobster industry, for example, had to rely on temporary foreign workers to fill 20% to 25% of their workforce, while the figure was as high as 50% in plants located in rural communities. According to the Coalition’s analysis, this labour shortage persists despite recruitment initiatives by the industry aimed at hiring and retaining Canadians first, such as increased wages, expanded benefits, more flexible work schedules, and, in the case of Prince Edward Island, a bursary to attract university and college students. With the introduction of the 10% cap, a loss of $123 million is estimated by the end of the year 2016. The 10% cap is also expected to hinder the industry’s ability to capitalize on recent trade opportunities, as the reduced production capacity may not be enough to meet rising demands.[44]

HyLife Foods’ representatives appearing before the Committee expressed similar concerns with regards to the meat processing industry, noting that there is a considerable shortage of meat cutting production personnel in rural Manitoba, despite various recruitment and training initiatives. These efforts have included employing people from across Canada, such as mushroom farmers from Ontario and construction workers from Alberta, as well as engaging in various forms of advertising. Most recently, the company has been considering the idea of establishing a meat cutting school in the First Nation reserve community of Sandy Bay. HyLife Foods’ representatives also noted that the cap is calculated in an inconsistent manner, a view that was echoed by the Canadian Bar Association in its brief to the Committee.[45] In this regard, HyLife Foods’ representatives observed as follows:

Calculation of the cap as currently set out in Schedule E may not lead to an actual workforce of 10% (or % as determined) at any one time. The calculation is subject to inconsistent interpretation for reasons including timing of provincial nomination (not available in all provinces) which removes low wage workers from the cap calculation, and the timing of transition of low-wage employees (current, inbound, requested in the LMIA application, and departing low-wage workers) during the processing of the LMIA application and the obtaining of work permits arising out of the LMIA.[46]

While an exemption on the 10% cap was announced in relation to 2016 LMIA applications with respect to low-wage seasonal positions that are no more than 180 calendar days, representatives from the Maritime Seafood Coalition and the Hotel Association of Canada have indicated that a long-term permanent solution is necessary to meet their labour market needs.[47] Speaking of the meat processing industry, which was not included as part of this temporary exemption, representatives from the National Cattle Feeders’ Association have asked that similar considerations be granted in their respect.[48]

Temporary foreign workers employed in Prince Edward Island’s fish processing industry also expressed concerns about the introduction of the cap, noting that it is forcing migrant workers to leave their communities even in circumstances when they would like to stay.[49]

2. Certain low-wage positions in the Accommodation, Food Services and Retail Trade sectors

Witnesses also identified challenges with respect to the fact that, since June 2014, ESDC/Service Canada no longer processes LMIA applications for certain low-wage positions in the Accommodation, Food Services and Retail Trade sectors in economic regions with a 6% or higher unemployment rate. Coupled with the introduction of a cap on the proportion of the workforce that consists of low-wage temporary foreign workers, the inability to fill certain low-wage positions in areas of high unemployment was considered by representatives from the hospitality industry as contributing to the closure of some hotels and to the reduction of hours and days of operation.

According to Anthony Pollard, President of the Hotel Association of Canada, the fact that most communities have an unemployment rate that is above 6% has meant that many hotels do not qualify for an LMIA when seeking low-wage temporary foreign labour in the Accommodation, Food Services and Retail Trade sectors. In his view, this is troubling for the hospitality industry, which has been experiencing a labour shortage despite multiple initiatives to recruit Canadians first, including some targeting Indigenous peoples.[50]

Witnesses also spoke of inaccuracies in the way that the unemployment rate for a particular region is determined, noting that the available labour market data is very high-level and therefore not suited to determining labour market conditions in smaller communities.[51] As Mr. Litwin explained, the 6% unemployment rate estimated for the Vancouver mainland southwest catchment is in fact not representative of the labour market conditions in Whistler where unemployment currently sits at 1.8% and where, due to the seasonality of the hospitality industry, a labour market shortage has been reported since 2012. This labour shortage exists despite initiatives in place to attract and retain Canadians in Whistler, such as subsidized staff accommodations, specialized customer service training programs for First Nations youth, educational partnerships, as well as wage increases. As part of their recruitment initiatives, businesses also participate in job fairs and engage in digital advertising through job sites and social media, he explained.[52]

Reflecting upon possible solutions to address some of the most salient concerns associated with the introduction of a cap on the proportion of the workforce that consists of low-wage temporary foreign workers, as well as with the refusal to process certain LMIA applications in areas of high unemployment, witnesses recommended that greater micro labour market data be collected and that the cap be frozen at levels that are supported by LMIA labour needs. They also suggested that the seafood sector be covered under the primary agriculture stream, as it is currently part of the Canadian Agriculture and Agri-Food Workforce Action Plan. In addition, they recommended that a Seasonal Lodging Worker Program be created to recognize the seasonality of the hospitality industry and that some tourism jobs, such as foreign language tour guides, be moved from the low-skill to the high-skill category.

In a brief submitted to the Committee, Mobilize Jobs offered a different perspective on the employment of low-wage temporary foreign workers, noting that employers need to put more effort towards recruiting Canadian youth. In this regard, the organization wrote:

We strongly believe that most low skilled, low wage roles can be filled with Canadian youth, wherever the positions may be located. We have already proven that Canadian millennials will travel coast to coast to fill roles in BC, Alberta, Saskatchewan, Manitoba, Ontario and the Yukon. As a reference, some of our most popular positions are in rural communities and tourism destinations. If employers continue to not have access to this international pool of workers, they will need to become more and more innovative in order to attract Canadians back to their positions. We have proven it is possible.... We are simply asking that you protect those crucial first jobs that Canadians need in order to start their career.[53]

3. Employer-specific work permits

While employer groups across the sectors raised production-related concerns with regards to the shorter work permit, temporary foreign workers employed in low wage positions and their advocates also identified challenges. According to this second set of witnesses, it was the nature of the work permit itself that was of greatest concern. In their view, employer-specific work permits tying migrant workers to one employer often lead to a power imbalance that is conducive to abuse. In this regard, Professor Ethel Tungohan observed as follows:

[T]ying work permits to employers inherently makes workers vulnerable to abuse. This is because these arrangements magnify the power discrepancy between workers and employers. In many cases, employers force workers into compliance by threatening to terminate their contracts, which means that workers risk not only losing their jobs, but also losing the ability to stay in Canada.[54]

While most temporary foreign workers in the TFW Program are issued employer-specific work permits, representatives from the Canadian Labour Congress noted that the individuals most vulnerable to abuse are those in low-skilled positions who have language barriers, work in isolation, and are indebted to recruiters.[55] Amongst migrant workers, women are at greater risk of suffering abuse due to the employer-specific nature of the work permit, witnesses explained.[56]

During the course of the study, the Committee heard from various temporary foreign workers, especially those employed in caregiving positions, who indicated migrant workers may experience a wide range of abuse, including verbal, physical and sexual abuse. Specific examples provided in this regard included working for no wages, undertaking tasks outside the scope of the employment contract, not receiving vacation pay, as well as being forced to work more hours or days than cited in the LMIA.[57] Former temporary foreign worker Gina Bahiwal also spoke of female migrant workers who hid their pregnancy for fear of losing their employment and status in Canada.[58]

In order to reduce the possibility of abuse due to the employer-specific work permit, witnesses called for open work permits or sector-specific work permits, which would eliminate the direct tie to a specific employer. Witnesses also recommended that the eligibility criteria for accessing settlement services, which currently only applies to permanent resident newcomers, be expanded to all migrant workers. Finally, they suggested that all temporary foreign workers have a pathway to permanent residency.[59]

According to the Canadian Labour Congress, abusive labour practices such as the ones described in this section may also have an indirect impact on the Canadian workforce as employers may lack the incentive to, for example, raise the wage floor for all workers.[60] While calling for the rights of migrant workers to be protected, the organization emphasized the importance of enhancing employers’ recruitment and training of Canadians and permanent residents, rather than facilitating easy access to migrant workers.[61]

C. Primary Agriculture Stream

1. Seasonal Agricultural Worker Program

During the study, the Committee received positive feedback with respect to the SAWP from agricultural organizations and Jamaica, a nation with whom Canada has concluded a bilateral agreement in this regard. In their view, the SAWP provides many cultural and financial benefits and does not need to be reformed. For Canadian agricultural organizations, including the Canadian Agricultural Human Resource Council, programs like the SAWP contribute to filling a labour gap that exists in the agriculture and agri-food industry despite significant recruitment and retention efforts. This labour gap is due to the rural locations where the industry operates as well as to the seasonal, physical and strenuous nature of the work that is required. Rather than reforming the SAWP, employer witnesses recommended that the overall needs of the industry be addressed by removing the agriculture and agri-food industry from the existing TFW Program, and by establishing a dedicated Canadian Agriculture and Agri-Food Workforce Program. In addition to streams dedicated to the agriculture and agri-food sectors, this new program would also encompass the SAWP.[62] Witnesses also called for the National Commodities List to be updated as the exclusion of grains, oilseeds and pulses from the list currently disqualifies many producers from accessing the SAWP or the agricultural stream.[63]

Migrant workers, along with advocacy group and labour organization representatives, offered a different perspective with regards to the SAWP. According to their testimony, specific features of the program place temporary foreign workers in a vulnerable position. In its submission to the Committee, the Migrant Worker Solidarity Network of Manitoba stated that, under the SAWP, employers have discretionary power to repatriate workers when they do not comply with some aspect of the work or for “any other sufficient reason,” as well as to specifically request workers by name to return the following season. The advocacy group also indicated that SAWP workers who are injured at work or become ill often face repatriation and a denial of medical treatment, as provincial health insurance is dependent upon a valid work permit. In addition, the advocacy group explained that migrant workers are subject to employer-specific work permits, a fact that limits their mobility and makes them even more vulnerable.[64]  

In this regard, the Committee was told about Sheldon McKenzie, a migrant worker from Jamaica who died of work-related injuries. According to Marcia Barrett, a representative from Caregivers’ Action Centre, Mr. McKenzie’s family experienced numerous difficulties trying to secure him medical attention in Canada as, under the SAWP, the employer has discretionary power to deport temporary foreign workers in certain circumstances.[65] Further, Gabriel Allahdua, a temporary foreign worker himself, spoke of how the employer-specific work permit and the uncertainty over not knowing whether they will be recalled by the employer for another season, leads to an atmosphere of fear and often drives migrant workers to withstand certain labour violations.[66]

Witnesses also expressed concerns over the impact of the program’s short duration on the migrant worker’s ability to receive certain benefits. According to Mr. Allahdua, though temporary foreign workers under this program make contributions to Employment Insurance (EI) while in Canada, they are not eligible to receive EI benefits.[67] As noted by the Migrant Worker Solidarity Network of Manitoba and the British Columbia Federation of Labour, this is because, in order to receive EI, an individual must be living in Canada and be available for work in accordance with section 18(1)(a) of the Employment Insurance Act. When migrant workers are laid off under the SAWP at the end of the season, they are immediately returned to their home countries and are therefore ineligible to receive EI benefits. Further, witnesses noted that while EI would also provide sick benefits to those who are unable to work for extended periods of time due to medical reasons, SAWP workers, as explained above, are often encouraged to return to their countries of origin to seek medical attention.[68]

Migrant workers and advocacy group representatives speaking about the SAWP identified training, open work permits, access to EI benefits, and pathways to permanent residency as possible solutions. In its brief, the Migrant Solidarity Network of Manitoba also suggested providing provincial health care coverage for SAWP workers upon arrival in Canada, as is currently the case in Manitoba.[69]