Every year, members of the immigration bar gather together to discuss emerging issues and rising trends in the practice of immigration at the Canadian Bar Association’s annual immigration conference. This year, the conference was held in Calgary. Immigration practitioners from across Canada (and around the globe!) met to learn and discuss some of the very real issues facing our rapidly changing industry.
As is usual with a large conference of this nature, there were government speakers, learned practitioners, and animated questions from the floor. Sessions were often so full it was standing room only, an indication times are changing fast. There was a formal dinner and impromptu hallway meetings — and even a surprise guest!
But more on the surprise guest later.
For immigration practitioners, especially business-focused lawyers, this conference fell at an interesting time. Temporary foreign workers, and specifically, Canada’s Temporary Foreign Worker Program, have been in the news once again in an unflattering light. Large, brand name companies have been accused of favouring foreign workers over local staff and a moratorium has been placed on the hiring of foreign workers in an entire market segment.
As with most things, there aren’t simple solutions. Government needs to protect the labour market and ensure solid, Canadian growth. This sometimes conflicts with a business owner’s desire to be able to hire the best person for the job, regardless of nationality. Combine these aims with public perception, and there is a quagmire at hand.
This conflict was definitely felt at the CBA. Practitioners shared tales of foreign workers in limbo, struggling employers facing seemingly insurmountable hurdles with bringing in highly skilled C-suite employees, and government workers being told to toe the line. We were told politely by government officials there are no exceptions to the rules except in rare circumstances and in some instances new processes are meant to bring faster processing times. The rules are meant to make it faster, to make it more transparent, and to hopefully make it more predictable.
It all sounds great and very reasonable.
The problem with this approach? Business isn’t predictable.
Now that does not mean businesses have the right to be cruel, unfair, or exploitative. But corporate needs vary (and change rapidly), decisions are made for all manner of reasons, often hard to articulate outside of a directors’ meeting, and learning curves vary. As immigration practitioners, we spend time with our clients identifying their corporate needs both in the short and long term in order to develop immigration strategies that serve business needs while maintaining good corporate stewardship.
But with the recent cases in the news, it seems public goodwill has been lost, or at least is being seriously tested.
In the recent high-profile food industry cases, the media reported a situation where foreign workers appeared to be favoured over local workers. The main company in question immediately called a review of its temporary foreign worker hiring policy and said in press statements it would work with the government to get to the bottom of things.
Comments on these articles were largely anti-immigrant and anti-foreign worker. Not for the first time, there was a near xenophobic backlash from people who read the headlines and avoid the details of the story, therefore failing to understand the complexities of Canada’s temporary foreign worker system.
This was discussed at length at the CBA conference. All temporary foreign workers cannot be treated in exactly the same way. The issue was raised time and again at both sessions and in those impromptu hallway gatherings.
To the delight of many of the assembled guests in the packed-to-capacity conference room, this sentiment seemed to be shared by a surprise conference guest, Employment and Social Development Minister Jason Kenney.
That’s right. In a room full of immigration lawyers, Kenney took the stage and owned it. He was poised, thoughtful, and downright congenial. He opened the floor to comments from the bar, stating he knew we had a lot to say and he wanted to give us the opportunity to say it. It’s a brave politician who opens himself up this way and is certainly something I admire in Kenney.
I’ve said before while I may not always agree with Kenney, I do admire his business sense. In many ways, the Employment and Social Development Canada beat is better suited to his business mentality and this showed in the open forum he encouraged at the conference.
While he acknowledged there may need to be exceptions to the current restrictive rules (and some bold ways of determining that such as setting a minimum high wage level instead of relying on the government’s own National Occupation Classification system as a determining factor), he also laid out the case as to why bold broad steps are necessary. Exploitation and trafficking are key concerns. While lawyers are quick to point out this is not a typical concern with higher level employees, the government expressed during this conference that sometimes it’s necessary to paint with broad strokes until workable solutions are discovered (I may be paraphrasing here).
The minister acknowledged, and most practitioners would likely agree, there isn’t one Temporary Foreign Worker Program. In fact, the opposite is true. Most of the cases in the press recently have been regarding foreign workers brought in under the labour market opinion stream. In fact, less than 50 per cent of all temporary foreign workers are in Canada under this category. Many more come in under the LMO-exempt categories of NAFTA professional, international experience class, or intra-company transfers, to name a few.
Further complicating matters is the LMO application itself can be used to bring in a graphic designer or the CEO of a Fortune 500 company. While the roles are vastly different with different stakes to the Canadian economy, ESDC treats them the same. The same advertising and recruitment requirements apply to each.
Therefore, when we talk about temporary foreign workers, we have to be clear who we are referring to. And when revamping the program(s), it has to be clear who benefits and why.
The end result remains to be seen, but the consequences of a misstep in the public eye remain disastrous. As discussed at the conference, it only takes one person to cause problems for a company. One disgruntled person who raises an issue to the press or one bad apple in one office of a multi-national company can bring total havoc on the entire system. At that point, it might not matter if the company is right or wrong — public perception matters.
Despite this, as counsel it is our obligation to continue to challenge these issues and have these discussions. Even practitioners who do not practise immigration law can read up on these issues and advocate for fair access and justice. A strong Canada relies on a strong, diverse workforce, which sometimes necessitates the need for a foreign worker.