Law Cans Episode 1 – Douez v. Facebook (Forum Selection Clauses) with Chris Rhone

Doez v. Facebook is a 2017 Supreme Court of Canada decision in which the Supreme Court had to determine the enforceability of a forum selection clause.  The case involved a class action lawsuit brought in British Columbia alleging that Facebook’s Sponsored Stories breached their privacy.  Facebook argued that because its Terms of Use stated that users had to litigate any claims in California that the British Columbia courts lacked jurisdiction.

Christopher Rhone is a Partner at Branch MacMaster LLP Barristers & Solicitors. He represented Ms. Doez, the plaintiff, at the Supreme Court.

 

0:30 – The distinction between civil and commercial litigation.

1:50 – Could Ms. Douez sue Facebook in British Columbia despite its Terms of Service specifying that people would have to litigate disputes in California?

3:30 – Why is Ms. Douez arguing that Facebook breached her privacy rights under British Columbia law? What was Facebook’s Sponsored Stories product?

9:40 – An overview of the Pompey test for determining forum selection clauses, which consists of the following two steps.  First, the party must show that a form selection clause is clear and enforceable and that it applies to the cause of action before a court. If this is the case, then second, the other party must show strong cause for why a court should not follow the forum selection clause Reasons to not can include public policy, fairness, convenience, etc.

16:00 – What impact did the size of Facebook have on the Supreme Court’s decision? What is the scope of the ruling? Should people assume that they can sue large, multinational e-technology companies in British Columbia?

23:30 – Chris discusses other times that he has argued before the Supreme Court of Canada.

26:40 – Tips and suggestions that Chris has for people who are deciding is law is for them?

31:10 – Steven and Chris discuss interesting privacy scenarios including where the Canada Border Services Agency was able to determine that someone was working without authorization by going through Google Maps history and where Canada student loan information vanished.

33:05 Steven asks Chris about tips to young lawyers who maybe love the law but who are perhaps unsure of loving the practice?

37:30 Chris describes his side practice as a SPCA litigator in cases where animal owners want to dispute the removal of their pet for violence or inadequate treatment.

Steven and Chris in this episode both mentioned that several of the lawyers that their respective firms, including Steven, are now using standing desks. Some of the models that the lawyers at Steve’s firm use include:

VIVO Height Adjustable Standing Desk Sit to Stand Gas Spring Riser Converter

ERGONEER Latest Model Adjustable Ergonomic Sit to Stand Desk Riser

Mount-It! Dual Monitor Desk Stand Mount for LCD LED Computer Displays Two Articulating Arms Clamp Desk Installation Fits up to 27 Inch Screens Heavy-Duty 44 Lb Capacity VESA 75 and 100


Buying a Business that Has Foreign Workers

As an increasing number of Canadian employers employ foreign workers, and the Government of Canada is taking an increasingly strict approach in enforcing the rules regulating the employment of foreign workers, the issue of how companies can protect themselves when they buy companies that employ foreign workers is becoming increasingly significant.

As well, as explained in detail on the Immigration, Refugees and Citizenship Canada (“IRCC”) website, corporate restructurings, mergers and acquisitions may themselves trigger work permit-related issues for employer compliance.

It is accordingly important for all companies that are considering merging with or acquiring another company to consider whether (a) the transaction will result in the need for new work permits for existing employees and (b) whether the company that will be employing these foreign workers will become liable for any non-compliance of the previous entity.

 

 

Understanding the “Successor in Interest” Concept

While the IRCC website is clear that employers become responsible for compliance post restructuring, merger or acquisition, the issue of whether the new employers become liable for previous non-compliance is more nuanced, and depends on whether the new employer has become the “successor in interest” for the portion of the organization where the temporary foreign workers were employed.

A “successor in interest” occurs where the new company or the purchaser substantially assumes the interests and obligations, assets and liabilities of the original owner and continue to operate the same types of business as the original owner.  There is no fixed definition of what “substantially assumes” entails, but companies should consider whether the new entity post restructuring, merger or acquisition has assumed the current assets, long term investments, property, human resources, patents, accounts payable, current liabilities, long-term liabilities, and continued employment of employees.

If the take-over organization is a successor in interest in that it has substantially assumed the interests, obligations, assets and liabilities of the original organization (wholly or partially) and continues to operate the same type of business as the original organization, the take-over organization remains the “employer” for the purpose of the existing work permit as well.

Are New Work Permits Needed? 

Where the new organization is a successor in interest, a change in ownership structure will not require a new LMIA or offer of employment.  If it is not, then a new LMIA or offer of employment and new work permits are required, and the employees should cease working for the take-over organization until new work permits have been obtained.

Where there is a corporate restructuring, merger or acquisition, the holder of a Labour Market Impact Assessment (an “LMIA”) should contact the Department of Employment and Social Development Canada to inform them of the change.  Whether a new LMIA will be required will depend on a variety of factors, including whether the corporate restructuring, merger or acquisition impacts the prevailing wage, job description and job duties of a foreign worker.

The same is true for IRCC’s International Mobility Program (the “IMP”).  The employers of Intra-Company Transferees, for example, will need to determine whether a qualifying relationship continues to exist following a restructuring, merger or acquisition.  As well, after the restructuring, merger or acquisition the new employer will have to carefully review the terms and conditions on each foreign worker’s work permit to determine whether there are any limitations on changes to job title, location, wages and duties. If there are, then new work permits may be necessary, depending on the work permit program that the foreign worker is employed under.

Liability 

Generally, where the new entity is not a successor in interest, then they assume the responsibility of complying with the Temporary Foreign Worker Program or the IMP on a going-forward basis, but do not assume the liabilities of the previous employer with respect to foreign worker compliance.  Where the new employer is a successor in interest, then they do assume these liabilities.

Steps Companies Should Take

There are several steps that companies can take to minimize risk when acquiring or merging with a company that employs foreign worker.

First, once the restructuring, merger or acquisition is done, then the new company may want to notify IRCC.  For example, if an organization changes its name or address, and there are no other changes to the structure of the company or to its Canada Revenue Agency business number, then the organization should contact IRCC to update their employer compliance portal information.  Where there is a change in CRA number, the employer should ask IRCC to link the new CRA number to their employer portal account. Requesting such changes do not delay the issuance of new work permits.

Second, prior to completing the purchase or merger, the organization should audit the other entity’s compliance with the employment of foreign nationals.  This includes obtaining a list of all foreign workers that the company has employed within the past six years (as this is the period that the government assesses), scrutinize whether the previous company complied with the laws regulating foreign workers and then determine what steps are needed going forward.

Third, the purchasing entity may want to contain in their purchasing agreement wording that indemnifies them of any non-compliance by the previous foreign worker.  For example, we have acted for purchasers where they successfully negotiated indemnifications against the consequences of any government inspections or audits of the new employer regarding the previous entity’s non-compliance, and also to cover the legal fees and costs of any voluntary disclosures to ESDC or IRCC had to be made following the discovery by the new employer of non-compliance by the previous employer.

Finally, where non-compliance is discovered, the purchaser should take detailed records, and consider making a voluntary disclosure to the Government of Canada. This could greatly reduce the consequences of non-compliance.

Conclusion

The consequences of not complying with Canada’s laws and regulations regarding the employment of foreign nationals can be severe, and include fines and prohibitions on hiring foreign workers.  Depending on the circumstances, existing work permits may be revoked. The purchaser of a business could find themselves financially devastated if, for example, the Government of Canada were to find them non-compliant.  For example, an individual who purchases a restaurant where all of the cooks are foreign workers could find themselves swiftly out of business if the previous employer’s non-compliance means that the new employer is both fined and prohibited from employing foreign workers.  As such, it is important that they take steps to protect themselves.

 

 


Assessing the Genuineness of a Work Permit Offer of Employment

Canada’s Immigration and Refugee Protection Regulations (the “IRPR“) states that a work permit application must be refused if an officer determines that the offer of employment is not genuine.

Section 200(5) of the IRPR states that in order to determine whether an offer of employment is genuine an officer should consider (a) whether the offer is made by an employer that is actively engaged in the business in respect of which the offer is made, (b) whether the offer is consistent with the reasonable needs of the employer, (c) whether the terms of the offer are terms that the employer is reasonably able to fulfill, and (d) the past compliance of the employer with federal or provincial laws that regulate employment.

Immigration, Refugee and Citizenship Canada’s (“IRCC“) guidelines contain extensive instructions to officers on assessing the genuineness of the offer of employment on a work permit application.

Actively Engaged

In order to demonstrate that an employer is actively engaged in the business an employer must do all of the following:

  • have an operating business;
  • provide either a good or a service; and
  • have a physical work location in Canada where the temporary worker will work.

The following are some red flags that can trigger an in-depth assessment of whether a company is actively engaged in the business.

  • the business information in the offer of employment raises concerns with respect to the organization’s active engagement in a business (such as being less than 1 year old);
  • there is negative publicly available information regarding the organization; and
  • previous work permit applications were refused because officers had concerns about whether an employer was actively engaged in the business.

The IRCC website contains the following examples of how officers should assess whether an employer is actively engaged in the business:

Example of an employer actively engaged in the business

The owner of a high-end Japanese restaurant in Toronto would like to hire a Japanese sous-chef. His business has been open for 6 years and employs 36 people, including 8 foreign nationals.

An officer may be satisfied that the organization legally exists and has the ability to provide stable employment for the requested period because it does all of the following:

has been open for several years

already employs several people

provides food and drink in a physical space (that is, the restaurant)

Example of employer that may not be actively engaged in the business

The owner of a small Japanese “bento-box” delivery restaurant in Toronto would like to hire a Japanese cook. His business has been open for 5 months and employs 2 other people. He cannot provide the officer with T4s (his business is too new), nor can he provide a lease because he operates his business from home. He pays his employees with cash or in food, which they don’t mind because they are family members. He shows the officer order slips for produce bought last month.

Even if an officer is satisfied that this business may be operational, provides a good and has a work location, it has not “demonstrated the ability to provide stable employment for the requested period” because it is too new and does not pay its employees in a consistent and reliable way.

Reasonable Employment Need

In order for an employer to show that the offer of employment is consistent with the reasonable employment needs of the employer, the employer must demonstrate that the  offer of employment is reasonable in relation to the type of business the organization is engaged in.  Specifically, the occupation should be one that is reasonably expected in that organization’s sector, and the employer must be able to meet the terms of employment that they have offered.  In other words, the employer must be able to satisfactorily explain the role of the temporary worker in their operations and how it covers a reasonable employment need, in terms of both occupation and operation.

The IRCC website contains the following examples of when an employer might not be able to demonstrate that there is a reasonable employment need:

  • An insurance company is hiring a full-time actor.
  • A company has only 10 employees, and this is the sixth supervisor position they have offered in the last year.
  • A hair salon is hiring a management consultant.

Ability to Fulfill 

An employer must be able to demonstrate that the terms of employment are ones that they can reasonably fulfill. They must demonstrate that they are capable of providing, for the duration of the work permit, the hours of work, wages and benefits stated in the offer of employment.

Officers may request the following documents to show whether an employer can fulfill the terms of the job offer:

  • T4 Summary of Remuneration Paid
  • T2 Schedule 100/125
  • T2125 or equivalent
  • worker’s compensation clearance letter
  • business contracts.

The IRCC website contains the following examples of how officers should assess whether an employer is actively engaged in the business:

Positive example

A well-established restaurant chain is hiring a specialty cook. The chain has been in existence for over 10 years and is known for its exemplary food and service.

The restaurant chain is able to demonstrate that it is “capable of providing, for the duration of the work permit, work in line with the occupation, wages offered and acceptable employment standards” because they are well established and have several years of income to prove they can afford the new cook.

Negative example

A new home-based business is hiring a person to prepare food for a new gourmet meal delivery service. The owner of the new business declared a profit of only $10,000 the previous year, but they are going to be paying the temporary worker $45,000 a year.

The new business is not able to show that they have sufficient funds to pay the wages offered, nor do they have business contracts to show that they would be able to meet the terms of the offer based on monies to be received through the contracts.

Compliance with Federal / Provincial Law

Finally, an officer must be satisfied that the employer will be and has been compliant with federal and provincial or territorial laws regulating employment.

The IRCC website contains the following examples of how officers should assess whether an employer is actively engaged in the business:

Positive example

A British Columbia mining company is hiring a temporary worker. There are several news articles referencing the fact that they have won prestigious safety awards in their industry and that they are a top 50 company to work for.

Unless the officer has any indication to the contrary, they could be satisfied that this company has a common practice of compliance with “federal and/or provincial laws regulating employment and recruitment in the province(s) it is intended that the temporary worker will work” based on having won awards for safety and being one of the top 50 companies in Canada.

Negative example

An Alberta mining company has just received a provincial court judgement that they are guilty of involuntary manslaughter because of a lack of safety equipment on their work sites that caused the death of 2 workers.

The Alberta mining company has been found guilty in a provincial court of not complying with provincial and federal laws. Therefore, they do not meet this requirement, and the work permit would be refused.

Other Factors

It is important to understand that in determining whether an offer of employment is genuine, officers can go beyond the prescribed factors described above.  In Singh v. Canada (Citizenship and Immigration), Madam Justice Kane noted that where it appears that an employer is hiring a family member, and that the motivation appears more to help the family member than to fill a vacancy, then the genuineness of a job offer can be doubted.  Madam Justice Kane wrote:

I do not accept the applicant’s argument that the factors in subsection 200(5) are the only factors that can be considered to determine the genuineness of a job offer or that they should be interpreted so narrowly that the Officer’s legitimate concerns about the genuineness of a job offer could not be considered. In addition, paragraph 200(5)(a), whether the offer is consistent with the reasonable employment needs of the employer, is a broad question which would include consideration of a range of relevant factors, including: the nature of the business; the nature of the particular employment offered; the size of the business; the volume of sales; and, the number of employees. In my view, it would not be consistent with the reasonable employment needs of an employer in a specialized area, such as a jewellery business, to offer employment to a person who has not provided objective evidence of their qualifications and experience and whose personal connection to the business owner appears to be a higher priority than the objective and legitimate needs of the employer and business owner for a qualified jewellery appraiser.


Medical Examinations for Live-in Caregivers vs. Applicants in the Caring for Children and Caring for People with High Medical Needs Classes

On August 20th, Citizenship and Immigration Canada released Operational Bulletin 232 – Live-in Caregiver Program: Revised in Canada Medical Examination Procedures.

The revised instructions apply only to the live-in caregiver. Medical examinations for family members remain unchanged. It also does not affect the initial overseas examination to qualify for a work permit as a live-in caregiver.
Continue reading →


Singh v. Canada: The Charter Applies to Refugee Claimants

Singh v. Minister of Employment and Immigration was a 1985 Supreme Court of Canada decision that is to this day arguably the most significant decision that Canada’s Supreme Court has made in the area of Canadian immigration and refugee law.

The Facts

The Appellants were a mixture of Sikh and Guyanese individuals who sought refugee status in Canada during the late 1970s and early 1980s. At the time, the Immigration and Refugee Board did not yet exist.  Rather, asylum claimants submitted refugee claims directly to Canada’s immigration department, who would determine whether someone was a refugee based on advice received from the Refugee Status Advisory Committee.  If the claimant was unsuccessful, they could appeal to the Immigration Appeal Board.  Both the initial claim and the appeal were based on written submissions, and at the initial petition for asylum a claimant would also be questioned under oath by an immigration officer.  Applicants were not allowed to make oral appeals.  Nor could they respond to arguments made against them by the Refugee Status Advisory Committee.

The Appellants in Singh argued that the lack of a hearing violated Canada’s Charter of Rights and Freedoms. 

The Supreme Court’s Decision

The Supreme Court of Canada’s decision was a split one, although all six justices determined that the previous approach which denied an oral hearing could not stand.  Three of the justices based their decision on the Charter.  Three based it on Canada’s Bill of Rights. 

The key and lasting holdings of the Supreme Court of Canada were  that while non-citizens do not have a right to enter or remain in Canada, a refugee who does not have a safe haven elsewhere is entitled to rely on Canada’s willingness to live up to the obligations it has undertaken as a signatory to the United Nations Convention Relating to the Status of Refugees and that the principles of fundamental justice demand, at a minimum, compliance with the common law requirements of procedural fairness.  In the refugee context, this right to procedural fairness includes access to an oral hearing.

In response to the government’s concern that the Supreme Court of Canada imposing a requirement that every refugee claimant in Canada get a full hearing would be prohibitively expensive, the Supreme Court responded by stating the following (which continues to be cited with concern by those who are worried about the cost of “judicial activism”):

… the guarantees of the Charter would be illusory if they could be ignored because it was administratively convenient to do so. No doubt considerable time and money can be saved by adopting administrative procedures which ignore the principles of fundamental justice but such an argument, in my view, misses the point of the exercise under s. 1 [of the Charter]. The principles of natural justice and procedural fairness which have long been espoused by our courts, and the constitutional entrenchment of the principles of fundamental justice in s. 7 [of the Charter], implicitly recognize that a balance of administrative convenience does not override the need to adhere to these principles. Whatever standard of review eventually emerges under s. 1, it seems to me that the basis of the justification for the limitation of rights under s. 7 must be more compelling than any advanced in these appeals.

….

Even if the cost of compliance with fundamental justice is a factor to which the courts would give considerable weight, I am not satisfied that the Minister has demonstrated that this cost would be so prohibitive as to constitute a justification within the meaning of s. 1. Though it is tempting to make observations about what factors might give rise to justification under s. 1, and on the standards of review which should be applied with respect to s. 1, I think it would be unwise to do so. I therefore confine my observations on the application of s. 1 to those necessary for the disposition of the appeals.

To recapitulate, I am persuaded that the appellants are entitled to assert the protection of 7 of the Charter in the determination of their claims to Convention refugee status under the Immigration Act, 1976. I am further persuaded that the procedures under the Act as they were applied in these cases do not meet the requirements of fundamental justice under s. 7 and that accordingly the appellants’ rights under s. 7 were violated. Finally, I believe that the respondent has failed to demonstrate that the procedures set out in the Act constitute a reasonable limit on the appellants’ rights within the meaning ofs. 1 of the Charter. I would accordingly allow the appeals. In so doing I should, however, observe that the acceptance of certain submissions, particularly concerning the scope of s. 7 of the Charter in the context of these appeals, is not intended to be definitive of the scope of the section in other contexts. I do not by any means foreclose the possibility that s. 7 protects a wider range of interests than those involved in these appeals.

The Aftermath

Four years after the Singh ruling, Canada created the Immigration and Refugee Board, which still exists today.  Refugee claimants are entitled to a hearing before the Refugee Protection Division, and, since 2013, also have an appeal to the Refugee Appeal Division.

 

 


Borderlines Episode 17 – Issues with PreClearance at Customs Offices, with Michael Greene

Michael Greene, Q.C. is an immigration lawyer in Calgary. He served as the National Chair of the Canadian Bar Association’s Citizenship & Immigration Section in 2000-2001

In this episode we discuss Bill C-23, the Preclearance Act, 2016.  This episode was recorded in June 2017.

The United States currently operates border preclearance facilities at a number of airports and ports in Canada. These are staffed and operated by U.S. Customs and Border Protection officers. Travelers pass through U.S. Immigration and Customs, Public Health, and Agriculture inspections before boarding their aircraft, ship, or train.

Bill C-23 will:

  • provide United States preclearance officers with enhanced powers, including the ability to carry firearms;
  • establish that the exercise of any power and performance of any duty or function by a United States preclearance officer is subject to Canadian law, including the Canadian Charter of Rights and Freedoms, the Canadian Bill of Rights and the Canadian Human Rights Act;
  • authorizes Canadian police officers and the officers of the Canada Border Services Agency to assist United States preclearance officers in the exercise of their powers and performance of their duties and functions;
  • allows a traveller bound for the United States to withdraw from the preclearance process, unless the traveller is detained;
  • authorize Canada to set up preclearance facilities in the United States;
  • specifies how Canadian immigration law will apply to travellers bound for Canada who are in preclearance areas and preclearance perimeters in the United States, and extends the application of other Canadian legislation that relates to the entry of persons and importation of goods into Canada to those preclearance areas and preclearance perimeters; and
  • deems an act or omission committed in a preclearance area or preclearance perimeter to be committed in Canada, if the act or omission would constitute, in Canada, an offence relating to the entry of persons or importation of goods into Canada.

The Canadian Bar Association’s comments can be found here – http://www.cba.org/CMSPages/GetFile.aspx?guid=1b0e8f11-c92b-4d80-859b-1e06c379a538

A copy of the Agreement on Land, Rail, Marine and Air Transport Preclearance Between the Government of Canada and the Government of the United States of America is embedded below.


When Procedural Fairness Requires a Fairness Letter

One of the most complicated topics in immigration law is determining when procedural fairness will require an immigration officer who is assessing an application to seek clarification in the form of a fairness letter or interview.

As the Supreme Court of Canada noted in Baker v. Canada (Minister of Citizenship and Immigration) the the concept of procedural fairness is eminently variable and its content is to be decided in the specific context of each case. When a visa officer does not rely on third party extrinsic evidence to make a decision it can often appear unclear when exactly it is necessary for an officer to afford an applicant an interview or a right to respond to the officer’s concerns.  However, there will be a right  to respond under certain circumstances.

Requirement to Provide Complete Applications

Visa officers do not have any legal responsibility to advise applicants of incomplete or inadequate applications.

In Kaur v. Canada (Citizenship and Immigration), 2010 FC 758, for example, the Federal Court dismissed a judicial review application of a visa officer’s refusal of an applicant under the Federal Skilled Worker Program. A visa officer determined that the application was deficient as it failed to include required information regarding the applicant’s salary and benefits. The applicant argued that the Canadian embassy should have told the applicant that this information was missing, and given her a chance to provide what was missing. However, the Court noted that there is no duty to advise an applicant of a deficient application. As Justice Mandamin noted, the process is clear. An applicant must provide a complete application.

As such, and to reiterate, visa officers do not have the obligation to notify applicants of inadequacies in their applications nor in the supporting documents. They do not have to seek clarification or additional documentation, nor provide an applicant with an opportunity to address concerns, when the material provided in support of an application is unclear, incomplete or insufficient to show that someone meets legislative program requirements.

Credibility Concerns

A duty may exist, however, to provide an applicant with the opportunity to respond to a visa officer’s concerns when the officer is concerned with the credibility, the veracity, or the authenticity of the documentation provided by an applicant as opposed to the sufficiency of the evidence provided.

In Sandhu v. Canada (Citizenship and Immigration), 2010 FC 759,  for example, an application was complete.  However, the visa officer rejected the application because he did not believe the genuineness of one of the applicant’s answers on the application. The Court acknowledged that the duty of procedural fairness in the decisions of visa officers [is] at the low end of the spectrum. However, Justice Mandamin, the same Justice as above, also noted that where the application is adequate, but the officer nevertheless entertains a doubt on the evidence, there remains a duty to clarify the information. The judge thus allowed the judicial review.

Grewal v. Canada (Citizenship and Immigration), 2011 FC 167 provides another example of this principle. There, an application was rejected because of a poor IELTs score.  In brief, the applicant had arranged employment in Canada as a Retail Trade Manager, but the visa officer determined that she would be unable to perform the required duties  of the arranged employment because of her poor IELTS marks. The visa officer refused the application without providing the applicant with an opportunity to respond to this concern.

Justice Noel noted numerous factors that resulted in the officer having a duty to seek additional information from the applicant, including 1) that immigration guidelines specified that additional information would be required for doubts over Arranged Employment Offers, 2) that the language proficiency concern derailed the individual’s entire claim for permanent residence, and 3) that the applicant’s consultant had thoroughly explained the reason for the poor test and had stated that another would be forthcoming.  Accordingly, Justice Noel determined that procedural fairness dictated that a fairness letter or interview be provided.

Singh v. Canada, 2010 FC 1306 is a final example.  There, an officer rejected a work permit application because the only documents which the applicant provided to support her claimed employment experience as a Ragi were reference letters.  The officer stated that she saw “many such letters which turn out to be fictitious”, and that she required “more than letters, for instance, newspaper cut outs, photos of them practicing or letters of reference, to properly corroborate claims of training, knowledge, and experience.”  The Federal Court, however, overturned this decision, noting that the applicant was not put on notice that the officer was concerned with the veracity of letters, and did not request further documentation.

Conclusions

In 2011, Justice O’Keefe in Kaur v. Canada, 2011 FC 219 provided  an excellent articulation of the current jurisprudence, and what should be the starting basis for any analysis of whether procedural fairness required the providing of the applicant with an opportunity to respond to a given concern.  The Court stated that:

An officer is not under a duty to inform the applicant about any concerns regarding the application which arise directly from the requirements of the legislation or regulations (see Hassani v. Canada (Minister of Citizenship and Immigration), 2006 FC 1283, [2007] 3 F.C.R. 501 at paragraphs 23 and 24).

The onus was on the applicant to satisfy the officer of all parts of her application and the officer was under no obligation to ask for additional information where the applicant’s material was insufficient (see Madan v. Canada (Minister of Citizenship and Immigration) (1999), 172 F.T.R. 262 (F.C.T.D.), [1999] F.C.J. No. 1198 (QL) at paragraph 6).

However, the officer was obligated to inform the applicant of any concerns related to the veracity of documents that formed part of the application and the officer was required to make further inquires in such a situation (see Hassani above, at paragraph 24).

The message from the courts seems clear. Visa applicants have one shot, and they should ensure that the effort that they put forward is their best, because if they do, procedural fairness will require that immigration officers provide them with the opportunity to address concerns.

If they don’t put their best foot forward, however, then their applications will be rejected outright.


Espionage and Immigrating to Canada

Section 34(1) of Canada’s Immigration and Refugee Protection Act provides, amongst other things, that a foreign national or Canadian permanent resident is inadmissible to Canada for engaging in an act of espionage that is against Canada or that is contrary to Canada’s interests, or being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in espionage against Canada or that is contrary to Canada’s interests.  It is one of the most serious inadmissibilities in Canadian immigration law.

Guidelines

Immigration, Refugees and Citizenship Canada’s (“IRCC”) Enforcement Manual 2 – Inadmissibilities contains the following definitions and guidance to officers regarding how immigration officials are to determine whether someone is inadmisisble to Canada for espionage.

Espionage is defined as a method of information gathering by spying; that is, the gathering of information in a surreptitious manner, secretly seeking out information usually from a hostile country to benefit one’s own country.

Paragraph A34(1)(a) contains two possible allegations that could render a permanent resident or foreign national inadmissible to Canada for acts of espionage:

1. if the act of espionage is against Canada, or

2. if the act of espionage is contrary to Canada’s interests.

Espionage “against Canada” means espionage activities conducted by a foreign state or organization in Canada and/or abroad against any Canadian public or private sector entity on behalf of a foreign government. It may also include activities of a foreign nonstate organization against the Government of Canada, but does not include acts of industrial spying between private entities where no government is involved.

The following is a non-exhaustive list of activities that may constitute espionage that is “contrary to Canada’s interests”:

 Espionage activity committed inside or outside Canada that would have a negative impact on the safety, security or prosperity of Canada. Prosperity of Canada includes but is not limited to the following factors: financial, economic, social, and cultural.

 The espionage activity does not need to be against the state. It could also be against Canadian commercial or other private interests.

 The use of Canadian territory to carry out espionage activities may be contrary to Canada’s national security and public safety and therefore contrary to Canada’s interests.

 Espionage activity directed against Canada’s allies as it may also be contrary to Canada’s interests.

Note: These guidelines are intented to be dynamic as the concept of what is contrary to Canada’s interest may evolve or change over time.

Spying on Campus Organizations, Churches, Schools, etc. 

Qu v. Canada (Minister of Citizenship and Immigration) is the leading Federal Court of Appeal decision regarding what constitutes espionage under Canadian immigration legislation.

Mr. Qu was a citizen of the People’s Republic of China studying at Concordia University in Montreal.  He was active in the Chinese Students and Scholars Association, a campus group, and regularly reported on that group’s activities to officials at the Chinese Embassy in Ottawa.  The Federal Court of Appeal had to determine whether spying on a campus organization, as opposed to a formal institution of democratic government or process, constituted espionage under Canadian immigration legislation.

The Federal Court of Appeal determined that it did, and that the definition of espionage should be interpreted broadly, and that the ability of individuals to freely belong to associations was integral to the democratic process in Canada. The Court went on to state that:

In Canada, a democratic institution is not limited to a political institution, it includes organized groups who seek through democratic means to influence government policies and decisions.

Canada is a pluralistic society with a variety of autonomous organizations independent of the government and to one and other.

As a free and democratic society, Canada values and protects democratic non-governmental institutions which enhance the participation of individuals and groups in society.

The Federal Court of Appeal accordingly went on to note that an individual could be inadmissible to Canada for espionage if they engaged in spying against an organization that was engaged in lawful activities in Canada of a political, religious, social or economic nature, and as such that this was not limited to trade unions, professional associations and political parties.

Intelligence Gathering vs. Espionage

In Peer v. Canada (Citizenship and Immigration), the Federal Court had to answer the following certified question:

Is a person inadmissible to Canada for “engaging in an act of espionage… against a democratic government, institution or process” within the meaning of subsection section 34(1)(a) of the Immigration and Refugee Protection Act, if the person’s activities consist of intelligence gathering activities that are legal in the country where they take place, do not violate international law and where there is no evidence of hostile intent against the persons who are being observed?

Mr. Peer was a member of Pakistan’s Corps of Military Intelligence and its Inter-Services Intelligence Directorate.  They would monitor individuals, including those from democratic countries, when they were in Pakistan.  Mr. Peer argued that his gathering of intelligence on the activities of foreign nationals was simply intelligence gathering and as it was on domestic soil did not constitute espionage against Canada.

Both the Federal Court and the Federal Court of Appeal disagreed. While the Federal Court of Appeal did not provide any reasoning, Justice Zinn at the Federal Court level wrote:

I have no doubt that many centuries ago one could not easily engage in espionage unless one travelled to a foreign land to gather the relevant information because there was no other way the information could be obtained.  That is quite simply not the case now, if it ever was.  If I were to accept the submission of the applicant that one cannot engage in espionage while remaining in one’s own country, I would have to accept that intelligence agents who monitor telephone and internet communications from the safety of their country are engaged only in “intelligence gathering” and not in espionage, even when the information they gather relates to sensitive state secrets.

The applicant might suggest that those agents are engaged in an illegal activity and thus fall outside his proposed definition of espionage.  However, while the interception of these communications may be an offence in the country from whence the communications originate, I have no doubt that the actions of these interceptors will be perfectly legal and, in fact, are sanctioned in their own country.

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What matters in this case is the applicant’s surreptitious gathering of information, or spying, on foreign nationals in Pakistan.  The applicant’s motive or his location when doing this spying is entirely irrelevant in determining that his activities on behalf of Pakistan intelligence constituted “espionage.”