Key findings of the Auditor General of Canada

• Inspections provided little assurance of protection for the health and safety of agricultural temporary foreign workers.
• Employment and Social Development Canada (ESDC) did not address longstanding concerns about worker accommodations.
• ESDC did little to meet the commitments to improve living conditions for agricultural temporary foreign workers that it had made in previous years.[1]

Summary of recommendations and Deadlines

Introduction

A. Background

The 2021 Fall Reports of the Auditor General of Canada were tabled in the House of Commons and referred to its Standing Committee on Public Accounts (the Committee)[2] for study on 9 December 2021. One of those reports was entitled “Health and Safety of Agricultural Temporary Foreign Workers in Canada During the COVID-19 Pandemic.” This report summarizes the report of the Office of the Auditor General of Canada (OAG) and sets out the Committee’s recommendations for ESDC.

B. Audit Parameters

The main parameters of the OAG’s performance audit are summarized in Table 1.

Table 1 – Audit Parameters

Audited Organizations	Employment and Social Development Canada (ESDC)
	Agriculture and Agri-Food Canada
Objectives	The OAG examined whether ESDC managed the Temporary Foreign Worker Program to protect agricultural workers from COVID‑19 in 2020 and 2021, with a focus on the amended Immigration and Refugee Protection Regulations and the department’s inspections, which were meant to verify whether employers followed the new COVID‑19 regulatory requirements that came into force in April 2020. The OAG also examined whether Agriculture and Agri-Food Canada verified that the recipients it funded under two of its COVID‑19 support programs met program terms and conditions.
Audit Period	The period to which the audit conclusion applies is January 2020 to June 2021. However, the OAG also examined certain matters that preceded the start date of this period. The OAG continued to monitor the backlog in agricultural inspections up to 10 September 2021 and included this information in its report.

Source: Office of the Auditor General of Canada, Health and Safety of Agricultural Temporary Foreign Workers During the COVID-19 Pandemic, Report 13 of the 2021 Reports of the Auditor General of Canada.

C. Roles and responsibilities

The roles and responsibilities of both departments regarding agricultural temporary foreign workers are described in Table 2.

Table 2 – Roles and Responsibilities

Employment and Social Development Canada

Manage the Temporary Foreign Worker Program. Assess employers’ applications to hire workers and inspect whether employers comply with program requirements and the applicable provisions of the Immigration and Refugee Protection Regulations (the Regulations). Verify, through its inspections during the pandemic, employers’ compliance with the regulatory amendments made in April 2020 to help prevent the spread of COVID‑19 and protect temporary foreign workers.

Agriculture and Agri-Food Canada

Manage the Mandatory Isolation Support for Temporary Foreign Workers Program. Manage the Emergency On‑Farm Support Fund jointly with the provinces and a third-party delivery agent.

Source:  Office of the Auditor General of Canada, Health and Safety of Agricultural Temporary Foreign Workers During the COVID-19 Pandemic, Report 13 of the 2021 Reports of the Auditor General of Canada.

D. Audited Programs

The audit included a review of the programs in Table 3.

Table 3 – Audited Programs

Temporary Foreign Worker Program	This program allows approved employers who continue to meet certain criteria to remain eligible for the program and use it to hire temporary foreign workers. ESDC conducts inspections to verify employers’ compliance with requirements and determine consequences of non-compliance. In July 2020, the department received $16.2 million in funding to conduct more agricultural inspections and inspect for a broader range of requirements applicable throughout the agricultural season, particularly those related to workers’ accommodations.
Mandatory Isolation Support for Temporary Foreign Worker Program	This program committed $142 million to helping employers cover the costs associated with the quarantine of temporary foreign workers; it ended in August 2021.
Emergency On‑Farm Support Fund	This program was created in July 2020 as a temporary measure to help employers improve workers’ health and safety on their farms, including by improving accommodations; it ended in February 2021.

Source: Office of the Auditor General of Canada, Health and Safety of Agricultural Temporary Foreign Workers During the COVID-19 Pandemic, Report 13 of the 2021 Reports of the Auditor General of Canada.

E. Meeting of the Committee on Public Accounts

On 31 March 2022, the Committee held a hearing on the OAG’s report with the following in attendance:

• OAG – Karen Hogan, Auditor General of Canada, and David Normand, Principal.
• ESDC – Jean‑François Tremblay, Deputy Minister; Lori MacDonald, Senior Associate Deputy Minister, Employment and Social Development and Chief Operating Officer for Service Canada; Mary Crescenzi, Assistant Deputy Minister, Integrity Services Branch, Service Canada; Nisa Tummon, Assistant Deputy Minister, Program Operations Branch, Service Canada; and Brian Hickey, Director General, Temporary Foreign Workers Program, Skills and Employment Branch.
• Agriculture and Agri-Food Canada – Chris Forbes, Deputy Minister.[3]

Findings and recommendations

A. 2020 and 2021 Inspections

According to Jean‑François Tremblay, Deputy Minister, ESDC, Canada welcomed 77,000 agricultural temporary foreign workers under the Temporary Foreign Worker Program in 2020–2021 and 70,000 in 2021–2022.[4]

The department must conduct inspections to verify that workers’ accommodations continue to align with what was approved by the provincial, territorial, or local authority in their housing inspection reports. Prior to the COVID‑19 pandemic, ESDC had committed to improving its inspections, including to better safeguard workers’ rights to safe and adequate housing.[5]

In April 2020, the Immigration and Refugee Protection Regulations were amended due to the pandemic. Under the new requirements, employers had to provide housing to workers that allowed them to remain two metres apart from others during their quarantine, in addition to separate accommodations for workers who became infected or showed symptoms. Employers were also required to pay wages during workers’ quarantines.[6]

Over the course of the pandemic, the department conducted:

• Quarantine inspections: they focused on assessing employer compliance with the new COVID-19 requirements of the Regulations. They were conducted from 24 April to 12 October 2020, and from 22 March to 30 June 2021.
• Post-quarantine inspections: they focused on the post-quarantine period and assessed for compliance with both the new and existing requirements. They were conducted from 13 October 2020 to 21 March 2021.
• Outbreak inspections: if the department became aware of an outbreak at any point in the season, it inspected whether employers provided each sick or symptomatic temporary foreign worker with their own separate bedroom and bathroom to isolate. These inspections were conducted between 24 April 2020 and 30 June 2021.[7]

The consequences for employers who did not follow these requirements included monetary penalties ranging from $1,000 to $1 million. Employers could also be barred from hiring temporary foreign workers for a time frame ranging from one year to permanently.[8]

According to Mary Crescenzi, Assistant Deputy Minister, ESDC:

Over the two-year period, we identified more than 330 employers who were in contravention. It could range anywhere from receiving a warning letter to a monetary penalty or a permanent ban.

In total, there was more than $2 million of administrative monetary penalties that were administered, and the list of non-compliant employers can be found on the IRCC website.[9]

According to the OAG, the 2020 and 2021 inspections “provided little assurance of protection for the health and safety of agricultural temporary foreign workers.”[10]

1. Poor-Quality and Incomplete Quarantine Inspections

In 2020, the department evaluated almost all employers as compliant with COVID-19 regulatory requirements, even though most quarantine inspections that the OAG reviewed had little or no evidence to support that assessment. In total, the OAG found problems in about 73% of the quarantine inspections it reviewed.[11]

In December 2020 and February 2021, the OAG notified the Deputy Minister and senior officials at ESDC that the preliminary audit had identified significant concerns with the quarantine inspections conducted in 2020. Despite this, the quality of the department’s quarantine inspections worsened during spring and summer 2021, with problems in about 88% of the 2021 quarantine inspections reviewed by the OAG.[12]

For example, the OAG reviewed “a 2021 inspection that had been inactive for more than 2 months … [in which] quarantine accommodations for 10 workers were being assessed. Only 1 photo of 1 bedroom was obtained from the employer. Information on the number of accommodations being used to quarantine these workers and how these accommodations allowed for required physical distancing was not collected.”[13]

In addition to inspecting compliance with health and safety requirements, quarantine inspections also looked at the payment of wages to temporary foreign workers during the mandatory 14‑day quarantine period. The OAG found that “32% of quarantine inspections that [it] reviewed contained insufficient information to assess wages—either inspectors verified wage payment for fewer workers than required by the department’s policies or there was no proof of wage payment on file at all. Yet, in these cases, inspectors found employers to be compliant.”[14]

2. Quality Problems and Delays with Outbreak Inspections

Approximately 60% of outbreak inspections reviewed by the OAG did not contain enough information to determine whether sick or symptomatic workers were provided with separate accommodations in order to isolate as required. Although the department initiated outbreak inspections quickly, about 80% of those inspections sat inactive for at least one to two months, by which point workers’ isolation periods had long passed.[15]

3. Poor Performance on Post-Quarantine Inspections

Post-quarantine inspections were meant to verify compliance with both COVID-19 regulatory requirements and regularly mandated requirements—most notably those regular requirements that applied to workers’ accommodations and that applied to most of the time that workers spent in Canada during the pandemic.

According to the OAG, poor-quality evidence and backlogs were also issues in post‑quarantine inspections. The department completed about half of its post-quarantine inspections. The OAG also found quality issues in those that the department did complete.[16] Karen Hogan, Auditor General of Canada, described certain inspections as follows:

The temporary foreign worker program inspection regime is one that’s supposed to ensure that the employer continues to meet the minimum standards prepandemic and even in those post‑quarantine inspections.

What we saw was that the inspectors were not gathering any evidence to demonstrate that they were still meeting those basic requirements. They weren’t asking questions about standard living conditions and occupancy limits. In the absence of having evidence, you can’t conclude that those questions were asked. That’s not a question of virtual or in person. That’s a question of quality and rigour in an inspection.[17]

4. Large Backlog of Agricultural Inspections

For the first six months of the pandemic, inspections focused on quarantine inspections in the agricultural sector and the six new COVID‑19 requirements. The OAG found that a backlog “began to accumulate when the department shifted its focus to the post-quarantine inspections that it had committed to conducting by the end of the 2020–21 fiscal year.”[18] 

5. Many Factors Behind Inadequate Inspections

According to the OAG, many factors could explain the inadequate inspections:

• The urgency of the new requirements and the effects on workers’ health was not well understood;
• Inspectors’ workloads and capacity were poorly understood;
• Inspectors lacked support;
• Interviews with workers were of poor quality; and
• Quality control was poor.[19]

Jean-François Tremblay, ESDC, summarized the problems with the inspections:

Despite our best efforts, the Auditor General’s report made it apparent that there were fundamental flaws in a number of areas in ESDC’s management of the program, and in the design of the program itself. Chiefly, as the department rolled out its new inspection regime in 2020—and doubled its inspection workforce from about 100 to 200 inspectors, and continued to hire and train inspectors in preparation for the 2021 season—there was an undesired impact on workload. Simply put, the quality of the documentation of inspections was not satisfactory to support the department’s final decisions.

ESDC owns these shortcomings, but with the delivery of any program, particularly during an unprecedented crisis, there are going to be risks. People were doing their jobs, but because of the situation and the challenges of the pandemic, the program came up short in some areas.[20]

Mr. Tremblay added that there were signs of improvement in late 2021 and early 2022, after the audit period:

ESDC’s internal audit team conducted a review of 60 compliant inspection files completed in September through December 2021, and concluded that there had been a 45% increase in files that met departmental inspection requirements since June 2021.

We continue to make positive progress as we prepare for the 2022 agricultural season. By the end of February 2022, the prepandemic inventory of inspection cases, active at the onset of COVID-19, had been reduced by 92%. As part of our plan to ensure timely inspections, we have streamlined inspections and balanced inspection workload with departmental capacity. We are aiming for a rate of 90% of inspection files without substantive errors by no later than September.[21]

However, according to Karen Hogan, these improvements still had not been observed by the end of the audit period (30 June 2021):

[D]uring our audit, we did look at some of the internal audits that had occurred. We found that those internal audits had identified similar issues with quality of evidence, just as we found, yet there was no improvement in any of the inspection files that we reviewed. It leads you to believe that oversight mechanisms, while there, were still somewhat ineffective at influencing change.[22]

6. Little Assurance for Agriculture and Agri-Food Canada that All Funded Employers Met Program Terms and Conditions

Employers receiving financial support under Agriculture and Agri-Food Canada’s Mandatory Isolation Support for Temporary Foreign Workers Program and the Emergency On‑Farm Support Fund were required to comply with the new requirements under the Immigration and Refugee Protection Regulations implemented during the pandemic. Most notably, the Mandatory Isolation Support for Temporary Foreign Workers Program was meant to offer financial support to employers to help cover the costs of quarantining workers.[23] This program ended in August 2021.

Due to the problems related with ESDC’s inspections, “Agriculture and Agri-Food Canada did not know whether there were employers it supported under these programs that may not have met these terms and conditions.”[24] According to Chris Forbes, Deputy Minister, Agriculture and Agri-Food Canada:

[W]e would continue to work with ESDC. When we understand that there are those situations of non-compliance in this or any other program, we obviously ensure that no funds are delivered to recipients who are not eligible.

We do ask that employers who are participants in the program keep any records for, I think, six or seven years. Certainly if we find new information from work done by ESDC, we can always go back and revisit the situation with those who have received a payment when they were, in fact, ineligible.[25]

As the OAG did not make any recommendations to Agriculture and Agri-Food Canada, neither will the Committee.

7. Recommendations

The OAG made four recommendations regarding ESDC’s inspections. Its first recommendation is as follows:

Given the importance of rigorous assessment of employer compliance with the Immigration and Refugee Protection Regulations, Employment and Social Development Canada should, without delay,

• re-examine its system for identifying and assigning inspections to factor in the collective workload capacity of its inspectors to complete them in a timely manner
• train and support its inspectors to collect sufficient and appropriate evidence, as outlined in the department’s policies and procedures
• improve its quality control system to monitor the progress and quality of inspections at various stages of completion and to ensure timely follow-up and application of appropriate corrective actions or consequences, as outlined in the department’s policies and procedures.[26]

Then, the OAG made the following recommendation regarding employer compliance with the measures taken by public health agencies:

Given Employment and Social Development Canada’s responsibility to assess employer compliance with all amendments made to the Immigration and Refugee Protection Regulations in response to the COVID‑19 pandemic, including the requirement that employers not prevent temporary foreign workers from complying with applicable provincial public health laws related to COVID‑19, the department should

• obtain information from provincial and territorial authorities on applicable public health laws in order to facilitate a risk-based approach to inspecting employer compliance with this requirement
• inform, train, and support its inspectors in using a risk- based approach, in order to detect possible instances during their inspections where employers may be preventing workers from complying with applicable public health laws.[27]

The OAG’s third recommendation relates to housing requirements:

Employment and Social Development Canada should take immediate action to ensure that its post-quarantine inspections and its regular program inspections post-pandemic verify that employer-provided accommodations meet applicable requirements throughout the temporary foreign workers’ stay, in accordance with its inspection policies. In particular, the department should

• verify that the condition and description of accommodations do not differ from those outlined in housing inspection reports approved by the provincial, territorial, or local authority
• verify that the accommodations do not exceed occupancy limits and that there are no reasonable grounds to believe that the accommodations pose any significant risk to workers’ health and safety.[28]

The OAG’s fourth recommendation relates to inspections and is as follows:

Given long-past quarantine and outbreak periods, Employment and Social Development Canada should use a risk-management approach and consider information currently on file to assess the relevance and value of completing backlogged inspections. It should then balance the completion of inspections underway with the need to undertake and complete new ones in a timely manner.[29]

According to its detailed action plan, ESDC has already taken the following measures:

• Establish a strengthened process to monitor and assess the quality of inspections.
• Establish a national workload management strategy, including: 1) a methodology to align capacity and the assignment of workload, taking into account program’s objectives and Immigration and Refugee Protection Regulations requirements; 2) a workload oversight network, to monitor, analyze and coordinate workload priorities based on a risk approach.
• Establish a new platform that serves as a one-stop shop to provide user-friendly access for inspectors to updated guidance and tools.
• Deliver updated training to support the inspection process.
• Strengthen guidance and develop and provide additional training for inspection staff.
• Establish a dedicated secretariat within ESDC to coordinate and triage multi‑stakeholder issues affecting the Temporary Foreign Worker Program.
• Strengthen the department’s review process of the Labour Market Impact Assessment, including the Housing Inspection Reports so that overcrowding concerns can be addressed prior to temporary foreign worker arrival.[30]

Speaking before the Committee, Jean-François Tremblay, ESDC, confirmed that all inspectors received the supplementary training and that there were new guidelines to ensure that if ever a worker’s health and safety is at risk, necessary action is taken within 24 hours and no later than 48 hours.[31]

In addition, by June 2022, the department also plans on “[a]dvancing efforts in establishing additional information sharing agreements with provincial and territorial stakeholders and amend existing agreements if required.”[32]

Also, the National Workload Strategy “will be a key tool to balance the completion of active inspections with the introduction and timely completion of new inspection cases. The department will also use program data to inform future enhancements to the operational model.”[33] According to Mary Crescenzi, ESDC, “[w]ith regard to the pre-COVID backlog, we pleased to indicate that our workload strategy reduced the pre-COVID backlog by 92%.”[34]

As a result, the Committee recommends:

Recommendation 1 – On late inspections

That, by 31 October 2022, Employment and Social Development Canada provide the House of Commons Standing Committee on Public Accounts with a report on: 1) the action plan of its national steering committee for improving and monitoring inspections, including statistics on in-person and virtual inspections; 2) progress related to communication with provincial and territorial authorities regarding the public health laws in force; 3) its national workload strategy; and 4) the measures taken to strengthen the procedure for reviewing housing inspection reports.

B. Living Conditions for Temporary Foreign Workers

The OAG noted that “despite having made commitments since 2018 to make changes to its Temporary Foreign Worker program in order to improve workers’ living conditions, [ESDC] made little progress toward establishing minimum accommodation requirements as an eligibility requirement for the program. In addition, … because the department’s inspections during the pandemic did not complete the required checks on workers’ basic living conditions, the department did not enforce existing requirements for accommodations.”[35]

1. No Concrete Progress on Program Changes to Improve Workers’ Living Conditions

The department committed to improvements through establishing minimum eligibility requirements for the program regarding employer-provided accommodations but achieved little progress on its commitments.[36] In June 2021, seven months after the consultations on its proposed minimum housing requirements ended, the department had neither completed its analysis of the responses received nor established timelines or an action plan to advance the development of these requirements.[37] The OAG therefore made the following recommendation:

Given Employment and Social Development Canada’s repeated commitments over the years to improve workers’ living conditions through the Temporary Foreign Worker Program, the department should expedite the development and implementation of minimum accommodation requirements as an eligibility condition of this federal program, in consultation with provinces, territories, and other jurisdictions.[38]

In addition to its other measures, ESDC intends to “engage provinces, territories and program partners on new program participation requirements, potentially through the pre-publication of proposed regulatory changes.”[39] The department will also “[i]nitiate roundtable discussions with stakeholders to solicit on-going input on the Temporary Foreign Worker Program.”[40] Lastly, ESDC will also pursue the “Migrant Worker Support Program, which will provide $49.5 million over 3 years for migrant support organizations.”[41]

The OAG recommended that ESDC make its consultation process faster and expedite the development and implementation of minimum accommodation requirements. Consequently, the Committee recommends:

Recommendation 2 – On the development and implementation of minimum accommodation requirements

That, by 31 December 2022, Employment and Social Development Canada provide the House of Commons Standing Committee on Public Accounts with a report on the development and implementation of minimum accommodation requirements as a condition of eligibility for this federal program and on the concrete measures taken as a result of the consultations with the provinces, territories and other stakeholders.

2. No Knowledge of Whether the Emergency On-Farm Support Fund Improved Worker Accommodations

According to the OAG, little information was available on what the Emergency On‑Farm Support Fund achieved. Agriculture and Agri-Food Canada was able to track how much of the funding went to on-farm housing ($13.9 million of the $35 million earmarked for the Fund) but was not able to assess whether this funding improved workers’ health and safety.[42] The OAG also found that “the program’s performance indicators focused on farm productivity and were not linked to accommodation improvements. Agriculture and Agri-Food Canada established 1 performance indicator to measure improved worker safety, but it did not collect any information to report against it.”[43] The program ended in February 2021.

The OAG did not make any recommendations in this regard, so the Committee does not wish to make any to Agriculture and Agri-Food Canada either. However, the Committee is very concerned with the program’s lack of information regarding its results and expects better evaluations going forward.

3. Little Assurance that Inspections Helped Protect Vulnerable Temporary Foreign Workers

The Temporary Foreign Worker Program is not among the programs tracked to demonstrate progress on achieving the targets of the United Nations’ 2030 Agenda for Sustainable Development.

In addition, departments are expected to factor in and respond to systemic inequality considerations using a gender-based analysis plus (GBA+) lens. The OAG did not see evidence that the department considered disaggregated data to help inform inspection decisions to support temporary foreign workers, who make up a vulnerable group. The OAG therefore made the following recommendation:

As the federal lead for Goal 8 of the United Nations’ Sustainable Development Goals, Employment and Social Development Canada should use a gender-based analysis plus lens to develop new performance indicators for the Temporary Foreign Worker Program that would contribute to advancing the United Nations’ 2030 Agenda for Sustainable Development and to promoting a safe and secure working environment for temporary foreign workers. The department should also monitor and track progress against these indicators and report on its progress.[44]

According to its action plan, with regard to the new Migrant Worker Support Program, “the department will conduct a survey of temporary foreign workers and funded community organizations in order to understand the impact of the enhanced supports.”[45] In addition, the department “will look for opportunities to integrate the results of this data collection into its gender-based analysis plus reporting in the Departmental Results Report and other public channels.”[46]

Consequently, the Committee recommends:

Recommendation 3 – On the adoption of a gender-based analysis plus lens

That, by 31 May 2023, Employment and Social Development Canada provide the House of Commons Standing Committee on Public Accounts with a report on the department’s use of a gender-based analysis plus lens to develop, monitor and report on performance indicators for the Temporary Foreign Worker Program.

C. Additional Outcomes-Related Recommendation

The Committee wants to ensure that processes in the public administration not only be adequate, but also effective – i.e. that they help programs to meet their objectives and improve concrete outcomes for individuals and businesses.

In the case of the Temporary Foreign Workers Program, an expected outcome is that workers have access to safe and adequate housing. Concerns were expressed on this topic.[47] The Committee is of the opinion that housing inspections are a way to ensure their quality and avoid overcrowding; therefore, it recommends:

Recommendation 4 – On outcomes of the Temporary Foreign Workers Program

That, by 30 April 2023, 2024, 2025 and 2026, Employment and Social Development Canada provide the House of Commons Standing Committee on Public Accounts with annual reports presenting statistics for the previous fiscal year on: 1) the percentage of accommodations that were inspected; 2) the number of inspections in the backlog; 3) the percentage of inspections where problems were found, if possible according to the seriousness of the problems; and 4) any other indicator the department may possess on the living conditions of temporary foreign workers.

Conclusion

The Committee notes that the OAG, in its audit report, found that Employment and Social Development Canada’s inspections for the Temporary Foreign Worker Program gave little assurance regarding the health and safety of Canada’s agricultural temporary foreign workers during the 2020 and 2021 agricultural seasons. This meant that Agriculture and Agri-Food Canada could not rely on these inspections to identify employers for whom it had approved funding as part of two programs it developed in response to the pandemic and who did not meet the terms and conditions of those programs, the purpose of which was to provide temporary foreign workers with health and safety measures and ensure that they could quarantine safely.

As a result, the Committee is making four recommendations to ensure that Employment and Social Development Canada follows the OAG’s recommendations and reports to the Committee with evidence of progress made. The Committee also wishes to follow-up on the progress made on living conditions for those employed under the Temporary Foreign Workers Program.