The Ontario Bar Association Citizenship and Immigration Section recently met with representatives of Opportunities Ontario, the province’s Provincial Nominee Program (“PNP”). During this meeting, they provided insight into the level of recruitment activities that would be expected from an employer who files a PNP application on behalf of a prospective employee.
The Opportunities Ontario website states that positions being considered for approval by Opportunities Ontario must “not affect the settlement of any labour dispute or affect the employment of a person involved in such a dispute, or adversely affect employment or training opportunities for Canadian citizens or permanent residents of Ontario.” It also states that, as the PNP is designed in part to assist employers who are having difficulty recruiting qualified, skilled workers in Ontario, “applications from employers who are seeking positions for foreign workers residing abroad, or foreign workers who are visiting Canada, will receive priority processing if those employers have tried to recruit Canadian citizens or permanent residents located in Ontario for those positions before applying to the program.”
It was previously believed that Opportunities Ontario would not attach too much significance to this requirement, since this standard was significantly lower than the standard applied by Human Resources and Skills Development Canada (“HRSDC”) in the context of a Labour Market Opinion (“LMO”). However, recent comments by Opportunities Ontario suggest that they are applying a stricter interpretation than previously believed.
The following issues were discussed by Opportunities Ontario during the meeting:
- The reference to “priority processing” is in the context of longer processing times for employers who apply without demonstrating recruitment efforts. This has meant that these employers application may take longer to process, as additional documentary information may be requested to determine if approval of the position for a foreign national will negatively affect employment and training opportunities for Canadian citizens and permanent residents in Ontario. In other words, employers who do not provide evidence of recruitment may have their applications denied rather than simply “delayed.”
- The simplest way to demonstrate that the test is met is through recruitment efforts. Where prospective nominees are visiting Ontario or abroad, the application recruitment efforts have not been made and the employer is otherwise unable to demonstrate that the position will not affect the settlement of any labor dispute or affect the employment of a person involved in such a dispute, or adversely affect employment or training opportunities for Canadian citizens or permanent residents of Ontario, the application could be denied. Although it is still possible to obtain an approval without evidence of recruitment efforts, this suggests that Opportunities Ontario expects evidence of recruitment in most cases.
- The recruitment requirement may be relaxed in certain cases. The following examples were provided:
- If the employee is on an open market post-graduation work permit and the student is applying in the International Student with Job Offer Stream, the recruitment requirement is relaxed. However, if the work permit is through an international agreement such as SWAP/Working holiday/International Experience Canada and the work permit has been issued without an assessment of the labor market impact then recruitment efforts by the employer will need to be demonstrated.
- If an applicant on an open work permit has worked for the employer for a period of time, then that may be considered when assessing the extent of the recruiting efforts required.
- If an employer can demonstrate that an employee has a specific skill set, such as highly specialized knowledge or specific and relevant managerial experience, then the employer can explain why recruitment efforts in Ontario were not pursued. Opportunities Ontario will consider such applications on a case by case basis. However applications on the basis that the only specific qualification is that an applicant speaks a particular language are not likely to be approved. This suggests that the recruitment requirement may be relaxed (on a case-by-case basis) for executive, managerial, or specialized employees who are working for the employer under certain LMO-exempt work permits, such as a NAFTA Intracompany Transferee or perhaps even NAFTA Professional.
- In terms of what evidence of recruitment is required, an employer must provide an explanation of what recruitment efforts were made and the results thereof. There is no set requirement for the type of recruiting conducted but it must be reasonable for the position. Job Bank, recognized internet sites, local newspapers, etc. are all reasonable. Recruitment efforts within the last year prior to submitting the application should be sufficient.
In summary, it would appear as though evidence of recruitment efforts is generally required, although these efforts are lower than what would be required for an LMO application. In addition, the recruitment requirement can be relaxed (on a case-by-case basis) in cases where it can be explained that the approval of the applicant would not negatively affect employment and training opportunities for Canadian citizens and permanent residents in Ontario.
Based on the above, employers seeking to obtain an Ontario nomination certificate on behalf of a foreign national should either submit evidence of their recent recruitment efforts or be prepared to demonstrate why this evidence is not necessary to establish that the approval of the applicant would not negatively affect employment and training opportunities for Canadian citizens and permanent residents in Ontario.
Blaney McMurtry LLP
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