Vol. 149, No. 5 — March 11, 2015

Registration

SOR/2015-53 February 27, 2015

DEPARTMENT OF EMPLOYMENT AND SOCIAL DEVELOPMENT ACT

Regulations Amending the Department of Employment and Social Development Regulations

P.C. 2015-233 February 26, 2015

His Excellency the Governor General in Council, on the recommendation of the Minister of Employment and Social Development, pursuant to paragraph 43(b) (see footnote a) of the Department of Employment and Social Development Act (see footnote b), makes the annexed Regulations Amending the Department of Employment and Social Development Regulations.

REGULATIONS AMENDING THE DEPARTMENT OF EMPLOYMENT AND SOCIAL DEVELOPMENT REGULATIONS

AMENDMENT

1. Section 3 of the Department of Employment and Social Development Regulations (see footnote 1) is amended by adding the following after paragraph (h):

COMING INTO FORCE

2. These Regulations come into force on the day on which they are published in the Canada Gazette, Part II.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issues

Employment and Social Development Canada (ESDC) currently has the authority to share information with the Canada Border Services Agency (CBSA) for the administration and enforcement of ESDC’s programs, including the Temporary Foreign Worker Program (TFWP). However, the CBSA may only use ESDC information for the administration and enforcement of the program for which it was obtained. The proposed amendment would authorize ESDC to share information collected under any ESDC program (other than under the Canada Pension Plan or Old Age Security Act) with the CBSA for the administration and enforcement of the Immigration and Refugee Protection Act (IRPA).

Information about individuals who are suspected of engaging in unlawful activity may be held by Citizenship and Immigration Canada (CIC), ESDC, or the CBSA, all of which have a role to play in enabling the entry of foreign nationals under the IRPA. While the necessary authorities are currently in place to allow broader information sharing between CIC and the CBSA and between ESDC and CIC (under section 3 of the Department of Employment and Social Development Regulations [DESDR]) a similar authority does not exist for information sharing between ESDC and the CBSA.

ESDC’s primary program related to the IRPA is the TFWP. Since the launch of the TFWP tip line in April 2014, hundreds of tips have been received by ESDC that require follow-up. Existing limited information-disclosing authorities between ESDC and the CBSA hinder the Government’s ability to investigate these tips, take action and prevent abuse of the TFWP under the IRPA.

Background

The TFWP allows employers to hire foreign workers as a last resort to meet their short-term labour and skills needs when qualified Canadian citizens or permanent residents are not available, while respecting international trade agreements and other partnerships. The TFWP is jointly managed by ESDC and CIC, with the support of the CBSA, under the authority of the IRPA and the Immigration and Refugee Protection Regulations (IRPR).

The TFWP refers to the streams of work under which employers who wish to hire a foreign national require an opinion (Labour Market Impact Assessment [LMIA], formerly known as a Labour Market Opinion) from ESDC. This opinion outlines, among others, whether the employment of a foreign national is likely to have a neutral or positive effect on the Canadian labour market. Information collected and used by ESDC to assess requests for LMIAs includes employer business and personal information, foreign nationals’ personal information and employer compliance information (including Employer Compliance Review or Inspection results).

The CBSA performs an important role in the administration and enforcement of the TFWP, by determining the admissibility of foreign nationals, issuing work permits at ports of entry (POE), investigating and removing foreign nationals who work illegally or are otherwise in Canada without status and investigating and prosecuting alleged offences under the IRPA.

Without this amendment, ESDC only has the authority to disclose information to the CBSA for the purposes of the administration and enforcement of the TFWP (e.g. to support issuance of LMIA-required work permits at the POE, enforcement related to misrepresentation on the request for an LMIA). The CBSA cannot generally use this information, or any information from another ESDC program, for any other purpose related to the administration and enforcement of the IRPA, such as the location and removal of foreign nationals in contravention of the IRPA. There is a mechanism to facilitate the disclosure of information in the public interest on a case-by-case basis; however, due to the increased volumes in reports and complaints about suspected abuse of programs administered and enforced by ESDC, a more efficient mechanism for the disclosure of information is required.

ESDC is the steward of large repositories of personal information, including sensitive personal data, and Canadians rely on ESDC to effectively manage and protect this information.

The disclosure of personal information held by ESDC is governed by the Department of Employment and Social Development Act (DESDA) and the DESDR, which set out conditions that go beyond the requirements of the Privacy Act and impose specific conditions to the disclosure and any further release of personal information to third parties. ESDC also adheres to Treasury Board Secretariat (TBS) privacy policies, directives, and related guidelines. Information-sharing agreements (ISAs) and internal privacy policies and guidelines outline the necessary measures for the protection of personal information for its collection, use, and/or disclosure and are core considerations for all programs. ESDC has a well-established Privacy Impact Assessment (PIA) process that serves as a comprehensive assessment of the privacy risks of any new or modified activity or program.

The Privacy Act protects the privacy of individuals’ personal information held by most government institutions, including the CBSA, and provides individuals with a right of access to that information. In addition to the requirements of the Privacy Act, the CBSA adheres to requirements for the protection, use and disclosure of information pursuant to the IRPA and the related regulations, as well as TBS privacy policies, directives, and related guidelines. The CBSA has internal policies and procedures for the collection, use and disclosure of personal information. These include a Privacy Code of Principles, as well as a more detailed policy on the disclosure of personal information pursuant to section 8 of the Privacy Act, and finally a rigorous PIA process to assess the privacy compliance and privacy risks of new or modified programs.

Objectives

The objectives of the amendments to the DESDR are to

Description

The amendments would add the CBSA to the list of federal institutions in section 3 of the DESDR, and enable ESDC to disclose information collected under its programs (other than pursuant to the Canada Pension Plan or the Old Age Security Act) to the CBSA for the purposes of the administration and enforcement of the IRPA.

“One-for-One” Rule

The “One-for-One” Rule does not apply to this proposal, as there is no change in administrative costs to business.

Small business lens

The small business lens does not apply to this proposal, as there are no costs to small business.

Consultation

Following two roundtable discussions with employer associations and union representatives to discuss reforms to the TFWP, there was a consensus that employers who abuse the TFWP and break the rules should face tough consequences.

On June 20, 2014, the Minister of Employment and Social Development announced a broad reform of the TFWP to reduce employer use and reliance on foreign nationals and ensure greater compliance with Program requirements. This included a commitment to establish new conditions for information sharing. Along with the announced changes, the Government of Canada published an extensive overview of the Program changes, “Overhauling the Temporary Foreign Worker Program,” on the departmental Web site, which reiterates the commitment to better information disclosure between ESDC and the CBSA. There has been no reaction from the public on this particular issue.

A survey of Canadians attitudes about governance and the public service conducted by the Environics Institute and the Institute on Governance (IOG) as part of the 2014 Americas Barometer study conducted every two years found that with respect to sharing information across federal departments, most Canadians are reasonably confident that the federal government is protecting the personal information it collects about them, and support the idea of sharing that data between departments to improve service. While greater sharing of citizen information across government entities might potentially entail greater risks to privacy protection, a clear majority (64%) of Canadians think the benefits outweigh the risks, compared to fewer than 4 in 10 (36%) who disagree.

ESDC will engage the Office of the Privacy Commissioner (OPC) on the identification and mitigation of privacy risks associated with this amendment as well as any subsequent ISA and supporting PIAs. The CBSA will not use ESDC information for any broader purposes until such time that a privacy analysis is completed and the ISAs and PIAs are formally approved.

Rationale

The expanded authorities for information sharing between ESDC and the CBSA will enhance Program integrity by helping to ensure that both institutions are able to detect and share information on unlawful activities related to their respective mandates and responsibilities.

The amendments to the DESDR will enable ESDC to share information it collects with the CBSA to facilitate CBSA investigations of alleged criminal contraventions of the IRPA. With the coming into force of the amendment, ESDC will have the authority to disclose information to the CBSA, with the aim of detecting and deterring non-compliance with IRPA requirements by bolstering the CBSA’s enforcement capacities. For the TFWP in particular, this will demonstrate to Canadians that the Government of Canada is serious about ensuring jobs for Canadians first and protecting the Canadian labour market.

Canadians will not incur any costs associated with this regulatory change and are not required to change their behaviour in any way. However, employers and Canadians will benefit from ESDC’s ability to detect and prevent non-compliance with ESDC programs based on the Government’s increased ability to collect and disclose information. For example, this amendment will enable the Government of Canada to better identify employers who may be abusing the TFWP and help to ensure that non-compliant employers face sanctions, including possible criminal prosecution under the IRPA.

ESDC and the CBSA will incur some incremental costs to support information-sharing activities such as data analysis and information technology (IT) systems upgrades. The Canadian public will benefit from enhanced confidence in the integrity of ESDC programs, including the TFWP, and the knowledge that unlawful activity will be investigated and where appropriate, sanctions will be applied.

Implementation, enforcement and service standards

With the coming into force of the anticipated amendment, ESDC will have the authority to disclose information to the CBSA; however, the information will only be disclosed once the PIA and an ISA have been finalized. The PIA will assess the privacy framework for the collection, use and disclosure of personal information related to the implementation of the regulation along with any associated privacy risks. The ISA between ESDC and the CBSA will outline the purposes, modalities and protections relating to the information to be shared.

The CBSA, in entering into ISAs with ESDC, will have to demonstrate that any information to be obtained from ESDC is specifically required for the enforcement of the IRPA. As with information obtained from ESDC, all information disclosed will be subject to the requirements for the protection, use and disclosure of information pursuant to the IRPA and the related regulations, as well as the DESDA and the related regulations, Privacy Act, TBS privacy policies, directives, and related guidelines.

ESDC’s governance structure is comprised of several executive committees that play a key role in supporting the legislative mandate, and the policy, program and service delivery priorities of the Department. The Privacy and Information Security Committee (PISC) addresses matters related to privacy and the protection of personal information, including the review of PIAs and ISAs. The PIA and ISA process both involve a standard privacy review function, including strategic meetings with key internal stakeholders, regular consultation with the Privacy Management Division, Legal Services and Corporate Security, with Deputy Minister approval.

Internal privacy policies and guidelines ensure that the measures for the protection of personal information are in place for the collection, use, and/or disclosure of personal information and are core considerations for all programs. For the purposes of the TFWP, this includes employer business and personal information, foreign national’s personal information and employer compliance information (including employer compliance review or inspection results).

Where ESDC intends to disclose information to the CBSA for the administration and enforcement of the IRPA beyond the TFWP, it will be lawful and in accordance with all the TBS directives. The directives outline specific restrictions on the collection, use, and disclosure of the information by government institutions and specifies the processes for establishing authorization for a new collection or use of information.

The regulatory amendments to the DESDR come into force upon publication in the Canada Gazette, Part II.

Contact

Colin Spencer James
Director
Temporary Foreign Worker Program
Skills and Employment Branch
Employment and Social Development Canada
140 Promenade du Portage, Phase IV
Gatineau, Quebec
K1A 0J9
Telephone: 819-654-3225
Fax: 819-997-5979
Email: colin.s.james@hrsdc-rhdcc.gc.ca