Bill C-690: The Live-in Caregiver Access, Respect and Employment Act

On June 11, 2015, John McCallum, the Member of Parliament for Markham — Unionville, and a member of the Liberal caucus, introduced Bill C-690, An Act to amend the Immigration and Refugee Protection Act (live-in caregiver). Its short form is the Live-in Caregiver Access, Respect and Employment Act.  Considering how close Mr. McCallum introduced Bill C-690 prior to the upcoming federal election, Bill C-690’s provisions will presumably form part of the Liberal Party of Canada‘s election platform.

Bill C-690 is short, and its substantive portion would introduce a new s. 32(d.11) into the Immigration and Refugee Protection Act (“IRPA”) so that s. 32 of IRPA would read:

Regulations

32. The regulations may provide for any matter relating to the application of sections 27 to 31, may define, for the purposes of this Act, the terms used in those sections, and may include provisions respecting

(d) the conditions that must or may be imposed, varied or cancelled, individually or by class, on permanent residents and foreign nationals, including conditions respecting work or study;

(d.1) the conditions that must or may be imposed, individually or by class, on individuals and entities — including employers and educational institutions — in respect of permanent residents and foreign nationals, or that must or may be varied or cancelled;

(d.11) for the purposes of paragraph (d.1), the restriction of the right to enter into an employment contract with a foreign national who is a member of the live-in caregiver class to entities authorized to do so by permit, and the issuance, renewal and revocation of such permits;

The summary for Bill C-690 states:

This enactment amends the Immigration and Refugee Protection Act to provide for the making of regulations requiring that the employer of a foreign national who is a member of the live-in caregiver class be an entity holding a permit authorizing it to enter into an employment contract with such a foreign national.

In a press release, Mr. McCallum stated:

C-690 shifts the employment of caregivers from individual families to these private caregiver agencies. This means that caregivers in an abusive situation do not have to fear for their employment if they report abuse and families no longer need to navigate the bureaucratic temporary foreign worker system, instead they can focus on finding the right caregiver for their family.

Further, with only a few dozen employers of caregivers instead of tens of thousands of individual families, the government can closely regulate and monitor the hiring of caregivers.

Given how short Bill C-690 is, and how much of its substantive changes would be implemented through amendments to the Immigration and Refugee Protection Regulations, rather than IRPA, it is difficult for me to comment.  I would accordingly be extremely grateful if anyone in the Liberal Party of Canada, or any stakeholders who know more about Bill C-690, could answer the following five questions:

  1. Under this scheme who would be responsible for conducting recruitment and applying for Labour Market Impact Assessments to hire caregivers? If it is the agency, then how will the Government of Canada ensure that families have first exhausted the domestic labour market before seeking a foreign caregiver?
  2. The Conservative Government of Canada recently amended IRPR to allow the Ministry of Employment and Social Development to conduct audits of caregivers, including the ability to compel attendance at interviews, and in certain cases inspect residential dwellings with a warrant.  Will Bill C-690 shift this responsibility to employment agencies?
  3. For the purpose of demonstrating employment experience under the Caregiver Class, who will write the reference letters? Families or the agencies?
  4. Bill C-690 only refers to Live-in Caregivers, while Mr. McCallum’s press release refers to all caregivers.  Is Bill C-690 intended to be broader than what it currently says?
  5. How does introducing of a middle agency allow the government to more closely regulate and monitor the hiring of caregivers?

Medical Examinations for Live-in Caregivers

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.
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Important Tip for Immigrating to Canada

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.

The breadth of procedural fairness must be adapted to the context in which it arises (Baker, SCC, 1999). When no extrinsic evidence is relied on, it is unclear when exact;y it is necessary to afford an Applicant an interview or a right to respond.  However, there will be a right  to respond under certain circumstances. (Li, 2008 FC 1284).

In Kaur v. Canada (Citizenship and Immigration), 2010 FC 758, the Federal Court dismissed a judicial review application of a visa officer’s refusal of an applicant under the Federal Skilled Worker Program. The application was deficient as it failed to include required information regarding the applicant’s salary and benefits. The applicant argued that she should have been told that this information was missing, and been given 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 the judge noted, the process is clear. An applicant must provide a complete application.

Contrast this with what happened in Sandhu v. Canada (Citizenship and Immigration), 2010 FC 759. There, the application was complete and sufficient. 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 noted that the duty of procedural fairness in the decisions of visa officers [is] at the low end of the spectrum. However, the judge 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.

This approach is similar to that recently taken in Grewal v. Canada (Citizenship and Immigration), 2011 FC 167.  There, an application was rejected because of a poor IELTs score.  The Court noted numerous factors that resulted in a duty to seek additional information including, 1) that the Manual specified that additional information would be required for doubts over AEOs, 2) that the language proficiency derailed the whole claim for permanent residence, and 3) that the consultant had thoroughly explained the reason for the poor test and had stated that another would be forthcoming.  Accordingly, procedural fairness dictated that a fairness letter or interview be provided.

In  Singh v. Canada, 2010 FC 1306, meanwhile,  an officer rejected a work permit application because the only documents which were submitted to support the applicant’s employment experience as a Ragi were 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 considered with the veracity of letters, and did not request further documentation.

Conclusions

In 2011, the Federal Court released its decision in Kaur v. Canada, 2011 FC 219.  In three paragraphs, the Court provided what I think is 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:

[24]           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).

[25]           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).

[26]           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.


Live in Care Givers, PNP Acceptance Rates

According to CIC, during the past 12 months the approval rate for different application streams for permanent residence has been as follows:

Immigration Category Approval Rate

Economic

Quebec Skilled Workers

97%

Federal Skilled Workers (Pre-C-50)

57%

Federal Skilled Workers (Post C-50)

21%

Entrepreneurs

76%

Self Employed

45%

Investors

82%

Provincial Nominees

96%

Live-In-Caregivers

99%

Canadian Experience Class

85%

Family

Parents and Grandparents

91%

Spouses & Partners

83%

Dependent Children

80%

Family Class (Other)

70%

Humanitarian

Government Sponsored Refugees

76%

Private Sponsored Refugees

69%

Refugee Dependents

86%

H&C Applications

70%

FCH – Family Relations – H&C

90%