[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 and Luz Maria Hermoso Santamaria, “Engendering Labour Migration: The Case of Foreign Workers in Canadian Agriculture” in Evangelia Tastsoglou and Alexandra Z. Dobrowolsky, eds, Women, Migration And Citizenship: Making Local, National and Transnational Connections (London: Ashgate, 2006).

[xxxv] House of Commons Standing Committee on Citizenship and Immigration, Evidence, 39th Parliament, 2nd Session, April 10, 2008 (“…authorities more readily grant permanent residence based on job qualifications, whereas it is not immediately [sic] granted for workers who occupy less skilled jobs. Discrimination based on social condition must absolutely be banished from these programs.” Nicole Filion, Coordinator, League des Droit et Libertes).

[xxxvi]House of Commons Standing Committee on Citizenship and Immigration, Evidence, 37th Parliament, 2nd Session, February 12, 2003 No. 028 37th (Allan Wise, Settlement Facilitator, International Centre – Citizenship Council of Manitoba).

[xxxvii] CIC, “Facts and Figures 2008”, supra note 15 at 6.

[xxxviii]Ibid.

[xxxix]Ibid. at 62.

[xl] CIC, “Annual Report to Parliament on Immigration, 2009” (2009), online: Citizenship and Immigration Canada <http://www.cic.gc.ca/english/resources/publications/annual-report2009/index.asp> [“CIC Annual Report 2009”] at 22.

[xli] More accurate labels would therefore be “federal-provincial/territorial agreements” and “provincial and territorial immigrant nominee programs”. Since a main focus of this paper is not on the Yukon Territory’s programs, the territorial label is dropped for simplicity.

[xlii]IRPA, supra note 2 at s. 8(1) (“The Minister, with the approval of the Governor in Council, may enter into an agreement with the government of any province for the purposes of this Act”) and s. 10(2) (“The Minister must consult with the governments of the provinces respecting the number of foreign nationals in each class who will become permanent residents each year, their distribution in Canada taking into account regional economic and demographic requirements, and the measures to be undertaken to facilitate their integration into Canadian society”).

                The federal government’s accord with Quebec is not considered in detail in this paper. That accord, which was signed in 1991, provides for a provincial immigration scheme that gives Quebec much greater control over selecting immigrants to settle in the province compared to other agreements.

[xliii] See for example “Canada-Ontario Immigration Agreement” Citizenship and Immigration Canada (21 November 2005), online: Citizenship and Immigration Canada
<http://www.cic.gc.ca/EnGLIsh/department/laws-policy/agreements/ontario/can-ont-index.asp> [Canada-Ontario Immigration Agreement] at s. 3.2 (defining an objective of the agreement “to foster effective partnerships between Canada and Ontario for the recruitment, selection and admission of immigrants and temporary residents, as well as the settlement and integration of immigrants in Ontario”).

[xliv] “CIC Annual Report 2009”, supra note 40 at 21.

[xlv] See for example, “Canada-Manitoba Immigration Agreement” Citizenship and Immigration Canada (June 2003), online: Citizenship and Immigration Canada <http://www.cic.gc.ca/english/department/laws-policy/agreements/manitoba/can-man-2003.asp> [Canada-Manitoba Immigration Agreement] at Preamble.

[xlvi] Alboim and Maytree, supra, note 10 at 5 and 34.

[xlvii]Ibid. at 35.

[xlviii]Aaron Pettman, “Government Programs and the Garment Industry” in Raymond Wiest, ed., The Winnipeg Garment Industry: Industry Development and Employment (Winnipeg: Manitoba Research Alliance on Community Economic Development in the New Economy, 2005) at 23.

[xlix] Dan Lett, “Immigration Plan Gets Green Light” Winnipeg Free Press (Winnipeg: Thompson Canada Ltd.) 25 January 1996, Section B7.

[l]Ibid.

[li] Audrey Macklin, “Public Entrance/Private Member” in Brenda Cossman and Judge Fudge, eds., Privatization, Law, and the Challenge to Feminism (Toronto: University of Toronto Press, 2002) at 234.

[lii] See Part IV, below.

[liii] Rosemary Clews, “Exploring and Overcoming Barriers to Immigration in New Brunswick” St. Andrews, New Brunswick (2004) online: <http://atlanticportal.hil.unb.ca:8000/archive/00000078/01/Clews_English.pdf> at 282.

[liv]“Canada-Ontario Immigration Agreement” Annex C, supra note 43 at s. 1.1.

[lv] See for example, ibid. at ss. 4.2 – 4.4.

[lvi] Fraser, supra note 1 at 25.

[lvii]Ibid. at 25-26.

[lviii] See for example, “Canada-Ontario Immigration Agreement” Annex C, supra note 43 at s. 4.7(b).

[lix] CIC, “Foreign Worker Manual” (November 10, 2009), online: Citizenship and Immigration Canada <http://www.cic.gc.ca/english/resources/manuals/fw/fw01-eng.pdf> at 43. For those provinces whose PNP agreements contain explicit language referencing this power, the statutory authority is IRPR, supra note 23 at s. 204(c). For all other provinces with PNP agreements, the same power is recognized pursuant to IRPR, supra note 23 at s. 205(a).

[lx] See Alboim and Maytree, supra, note 10 at 35 (criticizing these variations as lacking clear justifications and as being unevaluated); c.f. Part IV, below.

[lxi] Fraser, supra note 1 at 25 (“Provincial nominee programs have become highly diverse and complex over time, with selection criteria that vary substantially from one province to another. At the time of our audit, they included more than 50 different categories, each with its own selection approach and criteria. PNP agreements do not require provinces and territories to obtain CIC’s approval when they create new PNP categories; they are required only to inform CIC”). See also “House of Commons Standing Committee Report on Temporary Foreign Workers”, supra note 3 at 10.

[lxii] Alboim and Maytree, supra, note 10.

[lxiii]Kurtis Kitagawa, Tim Krywulak and Douglas Watt, Renewing Immigration: Towards a Convergence and Consolidation of Canada’s Immigration Policies and Systems (2008) online: The Conference Board of Canada <http://www.conferenceboard.ca/documents.aspx?did=2758> [Kitagawa, Krywulak and Watt] at 22.

[lxiv]Ibid. at 34.

[lxv]Ibid.

[lxvi]Ibid. at 26.

[lxvii]”Hog Workers Approve Contract That Aids Foreign Workers” CBC News Online (5 January 2010), online: CBC New Online <http://www.cbc.ca/canada/manitoba/story/2010/01/05/mb-foreign-workers-contract-maple-leaf-manitoba.html> [CBC, “Hog Workers Contract”].

[lxviii]”Canada-Ontario Immigration Agreement” Citizenship and Immigration Canada (21 November 2005), online: Citizenship and Immigration Canada <http://www.cic.gc.ca/EnGLIsh/department/laws-policy/agreements/ontario/can-ont-index.asp>Annex G: Temporary Foreign Workers (2008) [“Canada-Ontario Immigration Agreement”]; “Agreement for Canada-Alberta Cooperation on Immigration Annex B: Temporary Foreign Workers” Citizenship and Immigration Canada (2008), online: Citizenship and Immigration Canada < http://www.cic.gc.ca/english/department/laws-policy/agreements/alberta/can-alberta-annex_B-2008.asp>.

[lxix]IRPR, supra note 23 (“A work permit may be issued under section 200 to a foreign national who intends to perform work pursuant to … (c) an agreement entered into by the Minister with a province or group of provinces under subsection 8(1) of the Act” at s. 204).

[lxx]“Canada-Ontario Immigration Agreement Annex G”, supra note 68 at ss. 3.5, 3.7; “Canada-Alberta Agreement Annex B”, supra note 68 at ss. 4.3.3, 4.4.

                It remains uncertain whether and how governments in Ontario and Alberta are utilizing these powers to streamline the temporary work permit process for foreign workers. Ontario’s agreement provides that its authority must be exercised to “promote economic development opportunities” in the province, “such as securing significant business or industrial investments, encouraging business competitiveness and productivity, advancing scientific research and development, and encouraging the commercialization of research.” This language signals an emphasis on high-skilled workers, researchers and business entrepreneurs. By comparison, Alberta’s authority appears somewhat broader and may also encompass low-skilled workers. It may be exercised whenever a temporary foreign worker will “contribute significantly to Alberta’s economic development goals.” See “Canada-Ontario Immigration Agreement Annex G”, ibid., at ss. 3.3; “Canada-Alberta Agreement Annex B”, ibid., at ss. 4.3.1.

[lxxi]Dominique Gross, “Temporary Foreign Workers in Crisis: Should They Stay, or Go?” The Globe and Mail (Toronto: 30 April, 2009).

[lxxii] House of Commons Standing Committee on Citizenship and Immigration, Evidence, 39th Parliament, 2nd Session, 9 April 2008, 39th (Jenna Hennebry, “With respect to the private interests that I see driving policy here, I was just at the Metropolis Conference in Halifax. It was contended there that the farm worker program is not expanding, it is employer-driven. This is what keeps being said. What concerns me is that this means there’s no cap on foreign workers, and it means we have an employer-driven immigration system, putting nation building in the hands of the private sector–not to mention the role of the third party recruiters in this process.”) [Hennebry Evidence].

[lxxiii] Alboim and Maytree, supra note 10.

[lxxiv] See Byl, supra note 3 (“A key feature of PNPs is that they are employer driven. The employer starts the process and recommends foreign workers for the program. their role of pre-selection shapes significantly the makeup of workers accepted into the program. It also creates an impression among workers that they are beholden to the employer, even though once in the PNP stream, the worker has few specific obligations to the sponsoring employer. The Advocate has heard reports of unhappy employers threatening to withdraw workers from the PNP” at 17).

[lxxv] House of Commons Standing Committee on Citizenship and Immigration, Evidence, 39th Parliament, 2nd Session, No. 22 3 April 2008, (Evidence of Kenneth Zaifman, Zaifman Immigration Lawyers, “In some cases, we may even be prepared to off-load that responsibility in its entirety to responsible corporations, in the sense that if they’re responsible for the selection, for the hiring, for the recruitment, for the process, it might then address the abuses on the fringe of the program. Because immigrants who come to Canada are no different from Canadians: they will gravitate to responsible employers if they can meet the requirements, and many of them can.”)

[lxxvi]T. Carter, M. Morrish and B. Amoyaw, “Attracting immigrants to smaller urban and rural communities: lessons learned from the Manitoba Provincial Nominee Program” (2008) 9 Journal of International Migration and Integration 161 [Carter, Morrish and Amoyaw] at 167-168.

[lxxvii] Statistics Canada, “Population and Dwelling Counts – 2006 Census” online: Statistic Canada <http://www12.statcan.gc.ca/census-recensement/2006/dp-pd/hlt/97-550/Index.cfm?TPL=P1C&Page=RETR&LANG=Eng&T=101>

[lxxviii] Carter, Morrish and Amoyam, supra note 76 at 167.

[lxxix] CIC, “Facts and Figures 2008”, supra note 15 at 49.

[lxxx]Ibid. at 64.

[lxxxi]Manitoba Labour and Immigration, “Manitoba Immigration Facts: 2008 Statistical Report” (Winnipeg: 2009) online: Manitoba Labour and Immigration <http://www2.immigratemanitoba.com/asset_library/en/resources/pdf/mif08.pdf> at 9 (including principles, spouses and dependents).

[lxxxii]T. M. Derwing and H Krahn, “Attracting and retaining immigrants outside the metropolis: is the pie too small for everyone to have a piece? The case of Edmonton, Alberta” (2008) 9 Journal of International Migration and Integration 185 at 187.

[lxxxiii]Ibid.

[lxxxiv]CIC, “Facts and Figures 2008”, supra note 15.

[lxxxv] Canadian Association of Professional Immigration Consultants (CAPIC), “Temporary Foreign Worker Program: Ontario Regulation of Recruiters” Policy Paper (18 September 2009). Online. Available at <http://www.capic.ca/policy%20papers/TFWP%20Regulation.pdf> [CAPIC] at 5 – 6.

[lxxxvi]Ibid.

[lxxxvii] House of Commons Standing Committee on Citizenship and Immigration, Evidence, 39th Parliament, 2nd Session, 1 April 2008. HCSCCI (Evidence of Yessy Byl, Alberta Federation of Labour Temporary Foreign Worker Advocate).

[lxxxviii] See for example Byl, supra note 3 (“Only 4% of foreign workers are accepted into the program, even though the bulk of foreign workers come with the expectation and hope of permanent settlement, which was deliberately fostered by brokers and the government” at 2).

[lxxxix] The experience of live-in caregivers in Canada is apostate. Currently, Ontario regulates recruitment activities for live-in caregivers but has declined to extend similar protections to other foreign workers. The Employment Protection for Foreign Nationals Act (Live-in Caregivers and Others), S.O. 2009, c. 32 [EPFNA], which came into force in March 2010, prevents recruiters from charging fees to caregivers and prohibits employers from recovering recruitment costs from workers.  Recruiters and employers can no longer seize caregivers’ passports and identity documents – often used as means of exerting control – and are prohibited from penalizing individuals from inquiring about or asserting their rights. There have been no indications to date, however, that the Ontario government plans to include other temporary foreign workers, who are also vulnerable to recruiter abuses, under this new scheme of protections.

[xc]S.M., 2008, c. 23 [WRPA].

[xci] Government of Alberta, “Alberta Immigrant Nominee Program (AINP)” (2010) online: Alberta <http://www.alberta-canada.com/immigration/immigrate/ainp.html> [AINP Website].

[xcii] Government of Alberta, “Employer-Driven Application – Semi-Skilled Worker Category (AINP 001)” (May 2009) online: Alberta Employment and Immigration <http://www.alberta-canada.com/immigration/media/IA-AINP_ainp001.pdf>.

[xciii] Nominations for front desk agents in the hospitality industry, for example, are limited to one per property location per year.

[xciv] Note that it is possible for employers to submit nominations for individual workers concurrently with their application for nominee allocations form the province.

[xcv] Nominee program streams for higher-skilled workers tend to operate much differently than low-skilled streams. Employers are generally able to nominate high-skilled workers who do not have previous work experience in Canada, but possess the desired education and training. These workers might be recruited and nominated directly in their home countries, entering Canada only once they have successfully acquired permanent residency status through the nominee process. TFWPs may still play a role for these nominees – for those who come to Canada initially through one of the high-skilled TFWP streams, for example – but the lack of a necessary link between TFWPs and PNPs for high-skilled workers is a primary reason why the PNPs may generate significantly different employment-related outcomes for those in the higher and lower-skilled groups.

[xcvi] Byl, supra note 3 at 18.

[xcvii] Ibid. (“Most employers respond to this limitation by refusing to participate because they feel they cannot simply choose one person when they often have ten or more temporary foreign workers employed at their restaurant” at 18).

[xcviii] Government of Manitoba, “Manitoba Provincial Nominee Program” (2010) online: Manitoba <http://www2.immigratemanitoba.com/browse/howtoimmigrate/pnp/pnp-general.html> [MPNP Website]. Manitoba’s PNP contains four priority assessment streams and one general nominee category. The four priority streams are Employer Direct, International Student, Family Support, and Strategic Initiatives, the latter stream being a small discretionary program with undefined criteria.

[xcix] Additionally, some minimum settlement funds may be required by the province to demonstrate workers’ ability to settle permanently, however this requirement appears to be flexible based on the income of individuals workers.

[c] Byl’s experience in Alberta suggests that the provincial government has a standing policy to revoke a nomination if the nominated worker is laid off at any point prior to attaining permanent residency status through CIC, see Byl, supra note 3 at 18.

[ci]Employers do of course bear some share of the cost, see CBC, “Hog Workers Contract”, supra note 67.

[cii] AINP Website, supra note 91.

[ciii] House of Commons Standing Committee Report on Temporary Foreign Workers, supra, note 3 at 27.

[civ] Johansen Evidence, supra note 8. See CIC, “Evaluation of the Immigrant Settlement and Adaptation Program” (2009) online: Citizenship and Immigration Canada  <http://www.cic.gc.ca/english/resources/evaluation/isap/intro.asp>.

[cv] Hennebry Evidence, supra note 72.

[cvi]AINP Website, supra note 91.

[cvii] Jill Bucklaschuk, “An Overview of Temporary Foreign Workers in Brandon, Manitoba” Brandon University Rural Development Institute Discussion Paper (2008).

[cviii] House of Commons Standing Committee on Citizenship and Immigration, Evidence, 39th Parlialment, 2nd Session, No. 22, 3 April 2008 HCSCCI (Evidence of Rory McAlpine, VP Government and Industry Relations, Maple Leaf Foods).

[cix] See Macklin, supra note 34.

[cx] “Agreement between Maple Leaf Foods, Inc. and United Food and Commercial Workers Union, Local No. 832” Expiring December 31, 2014 [“Maple Leaf Foods Collective Agreement”]; “Agreement between Springhill Farms and Freezerco and United Food and Commercial Workers Union, Local No. 832” Expiring December 31, 2015 [“Springhill Farms Collective Agreement”] (on file with the author).

[cxi] See “Maple Leaf Foods Collective Agreement”, ibid. at s. 33.01 and “Springhill Farms Collective Agreement”, ibid. at s. 49.01.

[cxii] See “Maple Leaf Foods Collective Agreement”, ibid. at s. 33.04 and “Springhill Farms Collective Agreement”, ibid. at s. 49.03.

[cxiii]G. Clement, “The Manitoba Experience” in Charles M. Beach & Jeffery G. Reitz, eds. Canadian Immigration Policy for the 21st Century (Kingston: John Deutsch Institute for the Study of Economic Policy, 2003).

[cxiv] Agricultural Employees Protection Act, 2002, S.O. 2002, c. 16 [AEPA] [the Labour Relations Act “does not apply to employees or employers in agriculture” at s. 18]. In Fraser v. Ontario (Attorney General), [2008] ONCA 760 (CanLII) the Ontario Court of Appeal struck down the AEPA as an unjustifiable infringement on workers’ freedom of association under s. 2(d) of the Canadian Charter of Rights and Freedoms. That case is currently on appeal to the Supreme Court.

[cxv] Of course, national unions such as UFCW will have certain advantages in coordinating policies more broadly than specific workplaces and localities. But this advantage only serves to underscore the importance of coordination by provincial and federal governments, in order to work with unions on a wider scale.

 

 

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