[i]Sheila Fraser, Report of the Auditor General of Canada to the House of Commons, Chapter 2: Selecting Foreign Workers Under the Immigration Program (Ottawa: Office of the Auditor General of Canada, 2009) <http://www.oag-bvg.gc.ca/internet/docs/parl_oag_200911_02_e.pdf> [Fraser]. See also House of Commons Standing Committee on Citizenship and Immigration, “Temporary Foreign Workers and Non-status Workers” May 2009, 20th Parliament, 2nd Session [“House of Commons Standing Committee Report on Temporary Foreign Workers”] at 27. In November 2009, The Toronto Star published an informative three-part investigative series on temporary foreign worker programs in Canada, see Sandro Contenta and Laurie Monsebraaten, “A Temporary Worker’s Catch-22” The Toronto Star (2 November, 2009) online: TheStar.com <http://www.thestar.com/news/investigations/article/719602>; Sandro Contenta and Laurie Monsebraaten, “Manitoba welcome host for guest workers in Canada” The Toronto Star (3 November, 2009) online: TheStar.com <http://www.thestar.com/news/investigations/article/720163>.

[ii] Temporary status workers should be distinguished here from non-status workers. Non-status workers, sometimes called “illegal workers”, are foreign individuals working in Canada without authorization under the Immigration and Refugee Protection Act, S.C. 2001, c. 27 [IRPA] in the form of a temporary work permit or permanent residency status. While non-status workers are narrowly defined as those employed without legal authorization, these workers can also be seen to exist along a spectrum of “precarious status”, a term used to denote the social production of illegality according to the absence of one or more factors including work authorization, a residency permit, independence from third parties, and social citizenship rights, see Luin Goldring, Carolina Berinstein and Judith K. Bernhard, “Institutionalizing precarious migratory status in Canada” (2009) 13 Citizenship Studies 239 [Goldring, Berinstein and Bernhard].

                The challenges facing non-status workers – particularly those who come to Canada initially as temporary foreign workers – are closely related to questions surrounding pathways to permanent residency for foreign workers, however they are not explore in detail in this paper. For an early overview of the issue see Marina Jimenez, “200,000 illegal immigrants toiling in Canada’s underground economy” The Globe and Mail (15 November 2003) Section A1.

[iii] “House of Commons Standing Committee Report on Temporary Foreign Workers”, supra note 2 at 11. See Yessy Byl, Entrenching Exploitation: The Second Report of the Alberta Federation of Labour Temporary Foreign Worker Advocate (Edminton: 2009) <http://www.afl.org/upload/TFWReport2009.pdf> [Byl, “Entrenching Exploitation”]. See also House of Commons Standing Committee on Citizenship and Immigration, Evidence, 37th Parl. 2nd sess., No. 016 (12 May, 2009) (Pura Velasco, Caregivers Support Services).

                Lower-skilled occupations in this paper are defined according to the National Occupational Classification Matrix (2006) published by Human Resources and Social Development Canada (HRSDC). Specifically, lower-skilled workers refer to those in NOC C (“occupations usually require secondary school and/or occupation-specific training) and D (“on-the-job training is usually provided”) classifications, see HRSDC, “National Occupational Classification Matrix 2006” online: <http://www5.hrsdc.gc.ca/noc/English/NOC/2006/html/Matrix.html>.

[iv] “Other non-governmental actors” refers to the possibility that actors in addition to private employers, such as non-governmental and community service organizations, may play important roles in both the nominee selection process and in providing protections and services for workers.

[v] See Part III, below, for a full description of the legal and institutional framework for PNPs in Canada.

[vi] Not include special provisions for live-in caregivers as part of the federal TFWP.

[vii] For an overview of these challenges, see Fraser, supra note 1; see also “House of Commons Standing Committee Report on Temporary Foreign Workers”, supra note 2 at 27.

[viii] The significance of how the TFWPs and PNPs in Canada interact and are interrelated may too often be glossed over by official policy-makers. See for example House of Commons Standing Committee on Citizenship and Immigration, Evidence, 39th Parl. 2nd sess., No. 0 (2 April, 2009) (Eric Johansen, Director, Saskatchewan Immigrant Nominee Program, “The second reason I’d really stress the importance of the temporary foreign worker program for our province is that it really is a sister program to our nominee program. They need to work hand in glove”) [Johansen Evidence].

[ix] Canadian Charter of Rights and Freedoms, s. 15, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c.11 at s. 6(2).

[x] See Fraser, supra note 1 at 25-27. See also Naomi Alboim and Maytree, Adjusting the Balance: Fixing Canada’s Economic Immigration Policies (2009) online: Maytree <http://www.maytree.com/wp-content/uploads/2009/07/adjustingthebalance-final.pdf >  [Alboim and Maytree] at 36.

[xi] See for example, House of Commons Standing Committee on Citizenship and Immigration, Evidence, 39th Parl. 2nd sess., No. 0 (16 April 2009) (Richard Clarke, President of the Nova Scotia Federal or Labour, “What has been most galling about the changes in the temporary foreign worker program is that these changes have been made without public debate. No party ever ran on a platform of promising easier access to cheap, exploited foreign workers. There was never a debate in Parliament. Instead, it appears that the business community asked for changes to this program and those changes were made”).

[xii] An exception is Alboim and Maytree, supra, note 10 at 34.

[xiii]IRPA, supra note 2.

[xiv] In fact, the “House of Commons Standing Committee Report on Temporary Foreign Workers”, supra note 3 at 6 recommended that the long term goal for policy in this area should be for the government to attenuate temporary foreign worker programs so they target specific work shortages, reducing the number of temporary foreign workers admitted to Canada overall. 

[xv] Citizenship and Immigration Canada (CIC), “Facts and Figures: Immigration Overview – Permanent and Temporary Residents” (2008) online: Citizenship and Immigration Canada <http://www.cic.gc.ca/english/pdf/research-stats/facts2008.pdf> [CIC, “Facts and Figures 2008”] at 49. The total entry of temporary foreign workers in 1998 was 100,436 workers.

[xvi]Ibid. at 66. A total of 16,663 lower-skilled workers came to Canada in 1999.

[xvii]Ibid. at 67.

[xviii]Ibid. at 62.

[xix]Ibid.

[xx]Ibid.

[xxi]Byl, “Entrenching Exploitation”, supra note 3 at 7.

[xxii]Constitution Act, 1867 (U.K.), 30 & 31 Victoria, c. 3 [Constitution Act, 1867] at s. 91(25).

[xxiii]CIC, “How to Hire a Temporary Foreign Worker (TFW): A Guidebook for Employers” (2009) online: Citizenship and Immigration Canada <http://www.cic.gc.ca/EnGLIsh/resources/publications/tfw-guide.asp>. See Immigration and Refugee Protection Regulations, S.O.R/2002-227 [IRPR] at ss. 203(3), 198(2)(a)(i), 200(1)(c)(iii).

[xxiv]IRPA, supra note 2. See also Human Resources and Skills Development Canada (HRSDC), “Temporary Foreign Workers Program” (2009) online: HRSDC <http://www.hrsdc.gc.ca/eng/workplaceskills/foreign_workers/index.shtml>.

[xxv]Judy Fudge and Fiona MacPhail, “The Temporary Foreign Worker Program in Canada: Low-Skilled Workers as an Extreme Form of Flexible Labour” (2009) 31 Comparative Labour Law and Policy Journal 5 [Fudge and McPhail] at 12.

[xxvi] See HRSDC, “Pilot Project for Occupations Requiring Lower Levels of Formal Training (NOC C and D)” (2009) online: Human Resources and Skills Development Canada
<http://www.rhdcc-hrsdc.gc.ca/eng/workplaceskills/foreign_workers/lowskill.shtml>.

[xxvii]IRPR, supra note 23 at ss. 201.

                Exceptions to this rule include seasonal agricultural workers, whose maximum term is eight months, and live-in caregivers, who can receive permits for up to three years plus three months. After working for 24 months within a 36-month period, caregivers may apply for permanent residency status – a provision that is unique among foreign worker programs, see IRPR at s. 113(1)(d). See also Sandra Elgersma, “Temporary Foreign Workers” (7 September 2007) Parliamentary Information and Research Service, Library of Parliament, Political and Social Affairs Division [Elgersma].

[xxviii] Byl, “Entrenching Exploitation”, supra note 3. The federal government’s practice of renewing permits has been the topic of some confusion and dispute following the release of the Alberta Federation of Labour’s report in 2008. See Fudge and McPhail, supra note 25 at footnote 72 for further discussion. These practices will likely change dramatically under the recently proposed amendments to the IRPR, see infra note 29.

[xxix] Canadian Gazette, “Regulations Amending the Immigration and Refugee Protection Regulations (Temporary Foreign Workers)” (10 October 2009) Vol. 143, No. 41, online: Canada < http://www.gazette.gc.ca/rp-pr/p1/2009/2009-10-10/html/reg1-eng.html> (proposed amendment to IRPR, supra note 23 at s. 200[3][g]).

[xxx] Alboim and Maytree, supra note 2 at 44 (“It is a concern, however, that the Canadian Experience Class excludes temporary workers who work in unskilled or low-skill jobs, even though this has recently been an area of significant growth in the Temporary Foreign Worker Program. The result is that about 40% of those recruited to Canada as temporary workers in 2007 will not qualify for the Canadian Experience Class. This means one of three things: people will continue to be employed in Canada on temporary status with no access to services and no possibility of family reunification; they will leave when their visas expire, requiring employers to recruit and train other temporary workers to replace them; or they will go underground and become undocumented workers vulnerable to abuse”).

[xxxi] On the issue of federal responsibility to address these gaps, the House of Commons Standing Committee Report, supra, note  at 38-39 had this to say:

Regulating includes setting standards and enforcing those standards. The federal government has no jurisdiction to enact laws in these areas (except in limited cases that are generally not applicable to temporary foreign workers.) However, the Committee believes that the federal government has a role to play in employer monitoring and compliance in the context of the temporary foreign worker program. The federal government established the program, authorized the employer to hire a foreign employee, approved various working conditions for the employee (such as wages), and authorized the employee to enter Canada and work for the employer. Accordingly, we believe that the federal government has a continuing responsibility to ensure that the program is functioning properly.

[xxxii] Byl, supra note 3 at 2.

[xxxiii] Fudge and McPhail, supra note 25 at 21, citing primarily Richard Trumper and Lloyd Wong, “Canada’s Guest Workers: Racialized, Gendered, and Flexible” in Sean Hier and Singh Bolaria, eds., Race and Racism in 21st Century Canada: Continuity, Complexity, and Change” (Toronto: University of Toronto Press, 2007) at 155-157. See also Ontario Federal of Labour and the Canadian Federation of Labour, “Submission to the Ministry of Labour Consultation on Foreign and Resident Employment Recruitment in Ontario”, August 21, 2009 [OFL/CFL Submission] at 3 (“There is little doubt migrant workers are disproportionately racializied”).

[xxxiv] See Audrey Macklin, “Foreign Domestic Worker: Surrogate Housewife or Mail Order Servant?” (1992) 37:2 McGill Law Journal 681 [Macklin] at 686 (referring to the “quadruple whammy” of class, gender, ethnicity, and citizenship). See also Kerry Prebisch a