Business enterprises are constantly in need of qualified workers and in many instances, positions can not be filled by the local labour force. Employers must then look abroad to find those most suitable, and resort to filing applications on behalf of temporary foreign workers at Citizenship and Immigration Canada offices, visa posts, or with Human Resources and Skills Development Canada (HRSDC) to obtain the appropriate permit or labour market opinion that will enable the foreign worker to engage in employment in Canada.
The Immigration and Refugee Protection Act (“IRPA”) in force since June 28, 2002 contains a number of provisions dealing with misrepresentations made by foreign nationals or by other persons with respect to applications for immigration status. Employers should be particularly careful when hiring foreign workers to ensure that no misrepresentation is made to the authorities by any party to an application. The spectre of potential liability is very real under the new immigration legislation.
Section 40(1) of the IRPA specifically states that a permanent resident or a foreign national is inadmissible for misrepresentation for “directly or indirectly misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of the Act”. This provision appears to be directed against an applicant attempting to misrepresent to gain any immigration status. Although this particular section of the legislation has not been dealt with by the courts in the context of an employment situation, it must be noted that Section 40(2) allows the authorities to consider an individual to be inadmissible for a period of two years following the final determination of the application, after the misrepresentation is discovered and the decision communicated to the applicant.
A different provision, but one that may affect employers more directly is found in Section 127 of IRPA which states:
“No person shall knowingly
(a) directly or indirectly misrepresent or withhold material facts relating to a relevant matter that induces or could induce an error in the administration of this Act;
(b) communicate, directly or indirectly, by any means, false or misleading information or declarations with intent to induce or deter immigration to Canada”
…
This broad language appears to be a deliberate attempt to encompass almost any form of misrepresentation or withholding or information by anyone, including an applicant, employer or third party representative.
Counselling or aiding misrepresentation, directly or indirectly, or withholding material facts relating to a relevant matter that “induces or could induce an error in the administration of the Act” is an offence under Section 126, and the punishment for persons found guilty of a contravention could be a fine not exceeding $100,000 or imprisonment not exceeding five years, very serious consequences for a breach. The matter arose in R. v. Tongo, a case dealing with organizing the entry of illegal immigrants into Canada. In that case, a British Columbia Provincial Court judge held that the IRPA establishes a number of general offences to discourage persons from engaging in activities such as employing illegal migrants or withholding relevant information. Although the case dealt with transporting illegal migrants, it is noteworthy that the court chose to make a general statement endorsing Parliament’s policy goal of attempting to curtail illegal immigration and misrepresentation.
Employers should be cautious when assigning a foreign worker to perform specific duties within the organization. Section 124(1)(c) of the IRPA states that it is a contravention of the Act to “employ a foreign national in a capacity in which the foreign national is not authorized under this Act to be employed”. It is therefore critical that employers who intend to reassign foreign workers to different duties or positions within the organization obtain legal advice prior to doing so, and take active steps to file the appropriate documentation to obtain changes to the terms and conditions attached to the Work Permit or Labour Market Opinion, if one was obtained.
Employers may find solace in the fact that the legislation recognizes a defence of “due diligence” and states that no one can be found guilty of an offence for a contravention if reasonable steps were taken to prevent it. That argument arose in an obscure reported case in the Northwest Territories; R v. Perez where a person who had an expired visitor’s visa and an application pending for permanent residence in Canada had also applied for an extension of a Work Permit, but had not received it before continuing his employment. Immigration officers visited the workplace and the accused was charged with working without authorization, but was acquitted because the court recognized that he had “honest and reasonable belief” that he was not working without authorization. The court noted in that case that the accused took reasonable care in the circumstances to avoid committing an offence and, therefore, was not liable.
However, the British Columbia Court of Appeal was less inclined to be forgiving in R. v. Mohammed Rafik Kahan, where the appellant plead guilty to three indictable offences relating to misrepresentation of his identity as he attempted to enter the country using a forged Canadian passport. The evidence in that case disclosed that the appellant was a “fraud artist” who had also obtained a false United Kingdom passport. He was convicted of misrepresentation and use of false documents and sentenced to twenty three months in jail. In a strongly worded judgement, the court determined the sentence to be a fit one and even somewhat in the low range.
The misrepresentation provisions of the legislation highlight the duty of care and due diligence that employers must exercise when hiring foreign workers. Employers who grossly exaggerate the qualifications of potential foreign workers, or misrepresent their circumstances or type of employment offered, may expose themselves to liability. Exercising caution and obtaining the appropriate legal advice is the most prudent course of action in situations involving the employment of foreign nationals.
Sergio Karas, is a certified specialist in Canadian citizenship and immigration law by the Law Society of Upper Canada. He can be reached at karas@karas.ca.
