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A letter arrives asking for payroll records, time sheets and the employment agreement for a worker you hired three years ago. What you send in the next few weeks decides whether the file closes quietly or becomes a penalty and a hiring ban.
Arrange a Call →A Notice of Preliminary Finding gives the employer 30 days to respond. That response is the last practical opportunity to put evidence and statutory justifications before the decision-maker before a final determination is issued.
It is a federal review of whether an employer met the conditions in sections 209.2 to 209.4 of the Immigration and Refugee Protection Regulations after hiring a foreign worker. ESDC inspects Temporary Foreign Worker Program employers and IRCC inspects International Mobility Program employers. Inspectors can demand records, interview the employer and workers, and attend the work site, and may act on suspicion, past non-compliance or random selection.
Tell us briefly what is going on. A lawyer reviews every enquiry and replies within 24 hours on business days.
A lawyer replies within 24 hours on business days. Urgent? Call +1 416 333 6200, answered 24/7. Submitting this form does not create a solicitor-client relationship.
Under section 209.5 of the Immigration and Refugee Protection Regulations, an inspection of an employer may be conducted where an officer has reason to suspect that the employer is not complying or has not complied with a condition, where the employer has previously been found non-compliant, or where the employer is chosen as part of a random selection. Nobody has to complain. Many employers who receive a document demand assume a disgruntled worker is behind it and construct their response around that theory. Often no such person exists.
Two federal bodies inspect. Employment and Social Development Canada reviews employers who hired through the Temporary Foreign Worker Program and the conditions in section 209.3. Immigration, Refugees and Citizenship Canada reviews employers who hired under the International Mobility Program and the conditions in section 209.2. Both rely on the general obligations in section 209.4, which require the employer to report at the specified time and place to answer questions, to provide the documents required, and to attend and give access to the work site. Non-cooperation is itself a violation.
The review period often reaches back years, which is why the six-year retention obligation is not administrative trivia. An employer that cannot produce payroll journals, time records or the original offer of employment is not merely disadvantaged on the substantive issue; it has failed the recordkeeping obligation as well.
| Condition | What the inspector compares | Typical evidence |
|---|---|---|
| Actively engaged in the business | Whether the business named in the offer is genuinely operating | Registrations, leases, financial statements, remittances |
| Same occupation | Duties actually performed against the occupation filed | Job description, work schedules, supervisor statements |
| Substantially the same wages | Wage actually paid against the wage offered | Payroll journals, pay statements, T4 slips, deduction records |
| Substantially the same working conditions | Hours, overtime, rest periods, benefits and location | Time sheets, schedules, benefit plan records |
| Compliance with employment and recruitment law | Ontario ESA and foreign national recruitment protections | Vacation and holiday pay records, recruiter agreements |
| Abuse-free workplace | Policies, training and response to complaints | Workplace policies, training logs, investigation records |
| Recordkeeping | Whether six years of documents exist and are producible | The complete file, retained from day one of employment |
Most adverse findings come from the wage and working conditions rows, and most of those are inadvertent. A worker offered forty hours a week is regularly scheduled thirty. An hourly rate is correct but a deduction not mentioned in the offer is taken. Overtime is paid at a rate that satisfies the employer's internal policy but not the Employment Standards Act, 2000. A worker offered a downtown location has been at a suburban site for two years. Each of these is a measurable variance between the offer as filed and the employment as delivered.
A written request identifies the workers under review, the period covered and the documents required, with a deadline. Extensions are sometimes available but must be requested before the deadline passes, with a reason.
Reconstruct what was offered and what was delivered for each worker before anything is sent. Producing records without first understanding what they show is how employers volunteer findings against themselves.
Documents are produced with a covering explanation. Officers may interview the employer, the foreign national and other employees, and may attend the work site. A warrant is required to enter a dwelling-house.
If the officer considers a condition breached, a written preliminary finding sets out the alleged violation, the points assessed and the proposed penalty or ban. The employer has 30 days to respond.
Evidence, corrections already made, compensation already paid, and any applicable statutory justification are put forward. This is the stage where outcomes actually change.
The final decision records compliance, compliance with justification, or non-compliance with the consequences imposed. Non-compliant employers are published by name and address.
The Regulations recognise defined justifications for what would otherwise be a breach. They include a change in federal or provincial law, a change to the provisions of a collective agreement, a dramatic change in economic conditions that affected the employer's business and did not target the foreign national disproportionately, an error made in good faith in interpreting an obligation where the employer subsequently provided compensation or made sufficient effort to do so, an accounting or administrative error followed by compensation, and circumstances beyond the employer's control. A justification must be advanced with evidence; asserting good intentions is not enough.
Voluntary disclosure and self-correction are weighed in the employer's favour. Where an employer identifies an underpayment, calculates the shortfall, pays the worker with interest where appropriate, documents the correction and discloses it, the outcome is very different from the same facts uncovered by an inspector three years later. The point-based penalty framework expressly takes into account whether the employer voluntarily disclosed the non-compliance before the inspection began and the compliance history of the employer.
The practical tool is a periodic internal audit. For each foreign worker, put the offer as filed beside the payroll record, the schedule, the actual duties and the actual location, and identify every variance. Where a variance exists, decide whether it is lawful, whether it requires compensation, and whether it requires a new filing. Employers hiring at volume should run this exercise annually, and always before any corporate reorganisation, site closure or acquisition that will move workers.
The same facts can also produce an Employment Standards Act claim by the worker, an Ontario Ministry of Labour investigation, and a reprisal complaint. Coordinate the immigration response with the employment law analysis rather than answering the federal demand in isolation. Statements made to one regulator are rarely invisible to another.
The instinct on receiving a document demand is to send everything immediately and appear cooperative. Cooperation is required, but speed without preparation is not cooperation, it is exposure. The obligation is to provide the documents required within the time specified, and where the volume is large or the records are held across systems, an extension request made before the deadline with a genuine reason is ordinarily better received than an incomplete production sent on time.
Before anything is produced, reconstruct what was promised. For each worker under review, retrieve the LMIA or the Employer Portal offer, extract the wage, hours, occupation, location and benefits as filed, and put them beside the payroll and scheduling records for the same period. If there is a gap, the employer needs to know its size and its explanation before an inspector does. An employer that produces records it has not read is effectively asking the inspector to characterise its own business.
The production itself should be organised, indexed and accompanied by a covering explanation that identifies what is being provided, how the records are kept, and where a document does not exist and why. Where a variance is evident, it is generally better to disclose it with the calculation and the remediation than to leave it to be discovered. Silence on a visible gap is not neutral; it reads as concealment when the officer finds it.
Officers may interview the employer, the foreign national and other employees. Preparation is legitimate and necessary; coaching is not. The proper preparation is to ensure that whoever speaks for the employer knows the facts: what the position was, what the worker was offered, what they are paid, what hours they work, where they work, who supervises them, and what records exist. A manager who guesses, or who describes an idealised version of the role, creates inconsistencies between the interview and the documents that are difficult to unwind later.
Employers must not attempt to influence what a foreign national says. Pressuring a worker, suggesting answers, or hinting at consequences risks a reprisal allegation and an abuse-related finding, which sits in the most serious category of violation and can attract the longest bans. The safe course is to tell workers that an inspection is happening, that they should answer honestly, that cooperation is expected, and that no adverse consequence will follow from anything they say.
Where a site visit occurs, ensure someone with authority is available, that the records requested are on hand, and that access is given without argument. Section 209.4 requires the employer to attend and to give access to the premises or place. Obstruction, delay and refusal are themselves violations, and they convert a narrow wage question into a broad compliance failure.
Employers frequently ask whether counsel can answer for them. There is no right to have a lawyer speak in place of the people who know the facts, and an officer is entitled to interview them. What counsel does is prepare those people, manage the correspondence, ensure any undertaking given during an interview is recorded and honoured, and follow up in writing where an answer given orally turns out to be incomplete or wrong. Correcting an inaccurate answer promptly and in writing is far better than leaving it in the record.
Keep a contemporaneous note of everything. Record who attended, what was asked, what was produced, what was said and what was promised. Inspections run over months, personnel change, and an employer's recollection of an exchange six months earlier is rarely reliable. If a preliminary finding later mischaracterises what happened during the inspection, a contemporaneous note is often the only material capable of correcting it.
We take instructions from the employer, take control of communications with the inspecting authority, reconstruct the record before anything is produced, prepare the production with a covering legal explanation, prepare the people who will be interviewed, and draft the response to any preliminary finding. Where a variance is real, we quantify it, arrange remediation, and present the correction as part of the response rather than waiting for it to be discovered.
Inspection mandates are quoted by phase: initial review and production, interview preparation, and preliminary finding response. Where the same facts also raise Employment Standards Act, 2000 issues or a potential claim by the worker, we run the employment analysis alongside the immigration one so that nothing said to one regulator creates a problem with another, and so that any remediation is structured once rather than twice. Preventive audits are quoted per worker file. If you have received a document demand or a preliminary finding, the deadline is real and short. Contact our business immigration group before the response date rather than after it.
Our lawyers offer a introductory call for most matters. Call, email, or book online. Do not sign anything before speaking with us.
55 University Ave, Suite 1100
Toronto, ON M5J 2H7
2 Sheppard Ave East, Suite 303, Toronto, ON M2N 5Y7
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Lexaltico LLP
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The difference is practical rather than technical. A page explaining that spousal support is usually indefinite after a twenty year marriage is accurate as a general statement and may be wrong about you, because of a domestic contract you signed, a period of separation you have forgotten, or an income that is not what a tax return says it is.
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