As Ontario’s economy grows, businesses increasingly rely on Temporary Foreign Worker Programs (TFWP) to address labour shortages and meet workforce demands. While these programs provide invaluable opportunities for both employers and foreign workers, they are governed by strict laws and compliance obligations. Employers must navigate federal and provincial regulations to avoid penalties, ensure fair treatment of workers, and protect their businesses.

This post explores the legal framework governing Temporary Foreign Worker Programs in Ontario, the key compliance requirements, and common challenges employers face.

What Is the Temporary Foreign Worker Program (TFWP)?

The Temporary Foreign Worker Program allows Canadian employers to hire foreign nationals when qualified Canadian citizens or permanent residents are not available to fill specific roles. Administered by Employment and Social Development Canada (ESDC) and Immigration, Refugees and Citizenship Canada (IRCC), the TFWP requires employers to meet specific criteria before recruiting foreign workers.

There are two key components of the program:

1. Labour Market Impact Assessment (LMIA) – Employers must demonstrate that hiring a foreign worker will not negatively affect Canada’s labour market.
2. Worker Permits and Authorization – Foreign workers must secure valid work permits before commencing employment.

Types of Temporary Foreign Worker Programs

Employers must select the appropriate TFWP stream based on their needs and the nature of the work. The most common categories include:

1. High-Wage Stream:
   For roles offering wages equal to or above the provincial/territorial median wage. Employers must meet stricter advertising and recruitment requirements to prove no local workers are available.
2. Low-Wage Stream:
   For positions paying below the median wage. Employers face additional compliance obligations, such as covering worker travel costs, ensuring adequate housing, and registering with provincial authorities.
3. Agricultural Stream:
   Designed for employers hiring foreign workers to perform on-farm primary agricultural work. The Seasonal Agricultural Worker Program (SAWP) is a popular subcategory under this stream, primarily supporting short-term seasonal needs.
4. Global Talent Stream:
   This fast-tracked stream targets highly skilled professionals in technology and other specialized fields. It aims to help Canadian businesses innovate and compete globally.

Each stream imposes specific requirements on employers, including recruitment efforts, wage compliance, and record-keeping.

Legal and Compliance Issues for Ontario Employers

Hiring temporary foreign workers involves securing approval from federal authorities and significant legal obligations at the federal and provincial levels. Non-compliance can lead to fines, bans from hiring foreign workers, and reputational damage.

1. Labour Market Impact Assessment (LMIA) Requirements

To obtain a Labour Market Impact Assessment (LMIA), employers must:

• Advertise the Position: The employer must demonstrate that they actively sought to hire Canadian workers through mandatory advertising.
• Pay Fair Wages: Employers must offer wages equal to or above the median wage for the position in Ontario.
• Provide Job Details: The terms of employment (job duties, hours, wages, and benefits) must align with those offered to Canadian workers.

Failure to meet these requirements may result in the LMIA being denied, thereby delaying or halting the hiring process. It is also important to note that while most provinces and territories follow the same requirements for an LMIA, Quebec has its own specific process.

2. Compliance with Employment Standards in Ontario

Temporary foreign workers are protected under Ontario’s Employment Standards Act, which sets minimum standards for:

• Wages (minimum wage compliance);
• Overtime pay;
• Breaks and meal periods; and
• Vacation time and statutory holidays.

Employers must provide foreign workers with working conditions equal to or better than those promised during the LMIA process. Misrepresentation of employment terms can result in penalties or suspension from TFWP participation.

3. Housing and Living Conditions

Employers are often required to provide adequate housing for workers hired under the Low-Wage Stream or Agricultural Stream. Specific standards include:

• Ensuring the housing is safe, clean, and compliant with local building codes;
• Covering the costs of accommodation where required (e.g., agricultural workers); and
• Conducting inspections to verify living conditions.

Neglecting housing obligations can harm worker well-being and trigger government investigations.

4. Workplace Safety Compliance

Under Ontario’s Occupational Health and Safety Act (OHSA), employers must:

• Provide a safe work environment for temporary foreign workers;
• Offer proper training, equipment, and hazard prevention; and
• Report workplace injuries and incidents to authorities.

Employers in sectors like agriculture, construction, and manufacturing must take extra precautions, as these industries carry heightened safety risks.

5. Record-Keeping and Monitoring

Employers must maintain accurate records to demonstrate compliance with Temporary Foreign Worker Program conditions, including:

• Worker contracts, wage payment records, and job advertisements;
• Proof of housing (where applicable); and
• Evidence of recruitment efforts to hire Canadians.

Government inspections can occur at any time, and failure to produce proper records can result in financial penalties or disqualification from hiring temporary workers.

6. Human Rights and Anti-Discrimination Laws

Temporary foreign workers are protected under the Ontario Human Rights Code, which prohibits discrimination based on race, citizenship, place of origin, or other protected grounds. Employers must treat all foreign or domestic workers fairly and equitably. Practices like unfair termination, wage disparities, or workplace harassment can expose employers to human rights complaints.

Common TFWP Challenges Employers Face

Despite the clear benefits of the Temporary Foreign Worker Program, employers in Ontario often face challenges navigating the legal and compliance landscape. Some common challenges include:

• Complex Paperwork and Deadlines: Labour Market Impact Assessment applications, worker permits, and ongoing compliance reporting demand precision and timeliness. Errors can delay hiring or lead to rejection.
• Changing Regulations: Federal and provincial laws governing TFWP evolve regularly. Staying current with wage thresholds, safety standards, and new compliance rules requires diligence.
• Cultural and Language Barriers: Employers must accommodate workers’ cultural and linguistic needs while integrating them into their operations.
• Balancing Privacy and Disclosure: Employers must balance the privacy of foreign workers with legal obligations to provide documentation during audits or inspections.

Penalties for Non-Compliance

Non-compliance with Temporary Foreign Worker Program obligations carries serious consequences, including:

• Administrative fines of up to $100,000 per violation;
• Suspension or revocation of LMIA approvals;
• Being blacklisted from hiring foreign workers under the TFWP; and
• Reputational harm that can impact future hiring and business operations.

In some cases, severe violations may lead to criminal charges, especially where worker exploitation, unsafe working conditions, or fraud are involved.

Tips for Ontario Employers to Stay Compliant

To ensure legal compliance and mitigate risks, Ontario employers hiring temporary foreign workers should:

• Consult Legal Counsel: Work with experienced employment and immigration lawyers to navigate TFWP requirements.
• Maintain Accurate Records: Implement systems to track wages, contracts, recruitment efforts, and compliance steps.
• Train HR and Management Teams: Educate staff on workplace safety, Employment Standards, and anti-discrimination policies.
• Conduct Regular Audits: Proactively assess housing, safety, and employment conditions to ensure compliance.

Willis Business Law: Advising Windsor-Essex Employers on Temporary Foreign Worker Program Compliance

The Temporary Foreign Worker Program (TFWP) provides employers with vital access to skilled and unskilled labour, but the program comes with significant legal responsibilities. The knowledgeable employment lawyers at Willis Business Law help employers maintain compliance with TFWP requirements, including Labour Market Impact Assessments (LMIA), employment standards issues, and workplace safety laws. Our robust legal solutions enable employers to streamline the process, mitigate risk, and protect their business interests while ensuring fair and safe working conditions for foreign workers.

Willis Business Law is centrally located in Windsor’s financial district, with a scenic view of the riverfront. The firm is just steps away from key landmarks, including the courts and government offices, ensuring convenience for clients. To schedule a consultation, call 519-945-5470 or reach out online.