As of December 31, 2014, there were 353,448 foreign workers in Canada, compared to 101,662 in 2004 and 52,092 in 1995.¹ The number of foreign workers is expected to continue increasing in the near future. In its 2015-2016 Report on Plans and Priorities, Immigration, Refugees and Citizenship Canada (“IRCC”) has targeted 150,000 to 210,000 new foreign worker entries into each calendar year.²

The occupations filled by foreign workers vary by regional labour requirements. For example, in 2014, British Columbia’s top five occupations under the Temporary Foreign Worker Program were:

1. farm workers;
2. nannies;
3. greenhouse workers;
4. actors and comedians; and
5. producers, directors and
6. choreographers.³

The influx of foreign workers into Canada over the past decade has raised a number of unique considerations in employment law.

Work permit approval or timing of approval is never certain. Employees and employers should turn their mind to what happens if a work permit is denied or delayed, and agree on what happens to their contractual relationship in such a situation.

Many foreign workers have work permits which only allow them to work for one specific company. Employees and employers in these exclusive working relationships should think about what the foreign worker may need if the employer ends the contract early. Because the worker is restricted from alternative employment, employers can help workers transition through an unexpected or premature departure with relocation (or repatriation) allowances and reasonable severance provisions.

Well drafted employment contracts are becoming more important, both to ensure the employees understand the terms of their employment and to protect employers against expensive and lengthy wrongful dismissal claims.

Questions employment counsel may ask their clients when reviewing foreign worker contracts include:

• Does the contract address what happens if the work permit is denied? Will the company owe the worker any money?
• Does the contract address what happens if the worker is denied Canadian professional licensing requirements, or if the worker loses eligibility part-way through the contract?
• Does the contract guarantee any length of work?
• Does the contract contain valid termination provisions to limit severance exposure?
• Is the company providing the worker with relocation allowances? If so, are there any circumstances such as a premature resignation where the worker is required to pay back relocation allowances?

Workers and employers who think about these issues and write their agreements down in a contract reduce their chances of costly disputes if the employment relationship ends.

Working together, immigration and employment counsel can ensure their clients have fair employment contracts that take the unique considerations of foreign workers into account.

1. Facts & Figures 2014: Immigration Overview – Temporary Residents, Sections 1.1 and 1.2. | ↩
2. Report on Plans and Priorities 2015–2016 | ↩
3. Annual Labour Market Impact Assessment statistics 2007-2014 | ↩