Category Archives: Immigration

Time to Remove “Canadian Experience Required” From Your Help Wanted Ads

Help Wanted: Canadian Experience Required.

Statistics Canada reports that recent immigrants to Canada face disproportionately high rates of unemployment and underemployment and has identified a lack of Canadian experience as one of the most common barriers for newcomers looking for meaningful employment in Canada. Yet, job ads often require job applicants to have “Canadian experience” in order to apply.

This summer, the Ontario Human Rights Commission (“OHRC”) launched its Policy on Removing the “Canadian experience” Barrier (the “Policy”).  The OHRC Policy recognizes that the requirement for recent immigrants to Canada to have “Canadian experience” represents a significant barrier for these individuals to find work that corresponds to their education, skills, and experience. As the Policy notes, newcomers to Canada “cannot get a job without Canadian experience and they cannot get Canadian experience without a job.” The OHRC has taken the position that a strict requirement for Canadian experience is prima facie discrimination, and can only be used where that experience can be shown to be a bona fide occupational requirement.

The Ontario Humans Rights Code (the “Code”) states that “[e]very person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability”. The OHRC Policy states that requiring Canadian work experience is a form of indirect discrimination as it adversely affects people who were not born and raised in Canada.

To show that Canadian experience is a bona fide occupational requirement, the employer must meet the following three-part test:

  1. the requirement was adopted for a purpose or goal that is rationally connected to the function being performed;
  2. the standard was adopted in good faith in the belief that it is needed to fulfill the purpose or goal; and
  3. the standard is reasonably necessary to accomplish its purpose or goal because it is impossible to accommodate the claimant without undue hardship to the employer.

The OHRC identified a number of best practices, including that employers should:

  • Frame job qualifications or criteria in terms of competencies and job-related knowledge and skills, rather than using “Canadian experience” which is an arbitrary term with no clear definition.
  • Use competency-based methods to assess an applicant’s skill and ability to do the job.
  • Provide newcomers with on-the-job training, supports and resources that will enable them to close “skills gaps” (i.e. acquire any skills or knowledge they may be lacking).
  • Give an applicant the opportunity to prove his/her qualifications through paid internships, short contracts or positions with probationary periods.

The Policy helps to highlight the disconnect between Canada’s general immigration policy of bringing high-skilled immigrants to work in Canada and the barriers in place with respect to high skilled-work once these individuals arrive in Canada.

While not law, the OHRC’s policies are given deference by courts and tribunals, and employers would be well advised to review their internal hiring processes in light of this Policy.

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Filed under Duty to Accommodate, Employment, Human Rights, Immigration, Workplace Policies

Citizenship and Immigration Canada Proposes Regulatory Changes to the Temporary Foreign Worker Program

By Henry J. Chang

Background

In early April 2013, it was reported that forty-five Royal Bank of Canada (“RBC”) employees in Toronto would be losing their jobs because the company had outsourced several technology services to iGate, a California-based firm that specializes in sending jobs offshore.  RBC faced a severe public backlash over the incident.  Questions were also raised regarding how iGate had brought its own employees into Canada under the Temporary Foreign Worker Program (“TFWP”), so that they could be trained at RBC offices. Continue reading

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Filed under Employment, Immigration

Revised Federal Skilled Worker Program Open for Business Starting May 4, 2013

The Federal Skilled Worker Program (“FSWP”), on hold since July 1, 2012 (except for those applying under the Arranged Employment or PhD streams), will once again be accepting applications as of May 4, 2013. Changes to the Program will modify all three streams.

FSWP Streams

Three streams are available under the FSWP:

  1. Eligible Occupation Stream: Applicant has at least one year of continuous work experience in one of the 24 eligible occupations (see below)
  2. Arranged Employment Stream: Applicant has a qualifying offer of arranged employment with Labour Market Opinion, if applicable
  3. PhD Stream: Applicant has completed at least 2 years of study at a Canadian postsecondary institution towards a PhD or has graduated from a PhD program within 12 months of the date of application

Minimum Language Threshold

Starting May 4, 2013, all applicants are required to meet Canadian Language Benchmark level 7 in English or French as evidenced by language test results obtained from a designated third-party organization. Language test results may be submitted up to two years from the date of issuance.

Educational Credential Assessment

Applicants who wish to submit postsecondary education acquired outside of Canada in support of their application must have their education assessed by one of the four organizations designated by CIC. Assessments received from these designated organizations must be issued after April 17, 2013 and will be accepted up to five years after the date of issuance.

Eligible Occupations

Applicants may apply under the Eligible Occupation Stream if they have at least one year of continuous work experience in one of the occupations listed below:

  1. Engineering managers
  2. Financial and investment analysts
  3. Geoscientists and oceanographers
  4. Civil engineers
  5. Mechanical engineers
  6. Chemical engineers
  7. Mining engineers
  8. Geological engineers
  9. Petroleum engineers
  10. Aerospace engineers
  11. Computer engineers (except software engineers/designers)
  12. Land surveyors
  13. Computer programmers and interactive media developers
  14. Industrial instrument technicians and mechanics
  15. Inspectors in public and environmental health and occupational health and safety
  16. Audiologists and speech-language pathologists
  17. Physiotherapists
  18. Occupational Therapists
  19. Medical laboratory technologists
  20. Medical laboratory technicians and pathologists’ assistants
  21. Respiratory therapists, clinical perfusionists and cardiopulmonary technologists
  22. Medical radiation technologists
  23. Medical sonographers
  24. Cardiology technicians and electrophysiological diagnostic technologists, n.e.c. (not elsewhere classified)

Cap on Applications

From May 4, 2013 to April 30, 2014, Citizenship and Immigration Canada (“CIC”) will accept:

  • 5,000 applications submitted under the Eligible Occupations Stream, 300 applications per eligible occupation;
  • 1,000 applications submitted under the PhD Stream;
  • There is no cap on applications submitted under the Arranged Employment Stream.

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Filed under Employment, Immigration