Self Employed Class – What Are Cultural and Athletic Activities?

Canada’s Self-Employed Program seeks to attract to Canada individuals who have the intention and ability to become self-employed in Canada. Self-employed persons are required to have either:

  • relevant experience that will make a significant contribution to the cultural or athletic life of Canada or
  • experience in farm management and the intention and ability to purchase and manage a farm in Canada.

The farm management component of the program closed on March 10, 2018.

Eligibility – Athletics and Cultural Experience

The Immigration, Refugees and Citizenship Canada (“IRCC”) website states that to qualify for the Self-Employed Program applicants must show that they:

  • have relevant experience;
  • intend and be able to be self-employed in Canada; and
  • can contribute to Canada’s economy in one of the required areas.

“Relevant experience” under the Self-Employed Program means at least two years of experience during the period starting five years before a person applies for permanent residence and ending by the time the visa is issued. The experience must be:

  • for cultural activities:
    1. two one-year periods being self-employed in cultural activities, or
    2. two one-year periods participating at a world-class level in cultural activities, or
    3. a combination of a one-year period described in (1.) above, and a one-year period described in (2.) above.
  • for athletics:
    1. two one-year periods being self-employed in athletics, or
    2. two one-year periods participating at a world class level in athletics, or
    3. a combination of a one-year period described in (1.) above, and a one-year period described in (2.) above.

What Are Cultural Activities? 

According to the IRCC website, “cultural activities” include jobs generally seen as part of Canada’s artistic and cultural fields. Examples include:

  • authors and writers,
  • creative and performing artists,
  • musicians,
  • painters,
  • sculptors and other visual artists,
  • technical support and other jobs in motion pictures,
  • creative designers and
  • craftspeople.

The IRCC website further states that a full-list of qualifying activities can be found here.

Would someone who has practiced Chinese medicine and intends to practice Chinese medicine in Canada have the relevant experience under the program?

No. In Ding v. Canada (Citizenship and Immigration), 2010 FC 764, Justice Beaudry noted that cultural activities are meant to be those as ordinarily understood to be part of the arts.  Thus, the Court ruled that there is no basis on which to conclude that experience in a Chinese therapeutic massage clinic and training center falls within the meaning of cultural activities.

What Are Athletics? 

The IRCC website does not give examples of what “athletics” are, however, the Employment and Social Development Canada (“ESDC”) website lists the following National Occupational Classification codes as being under minor group “Athletes, Coaches, Sports officials and referees, and Program Leaders and Instructors in Recreation, Sport and Fitness.”

It needs to be stressed that while the IRCC website seems to rely on the National Occupational Classification for determining which occupations are eligible for the Self-Employed Program, the Federal Court of Canada has cast some doubt on this. In Tollerene v. Canada (Citizenship and Immigration), 2015 FC 538, Justice Fothergill had to address the reasonableness of a visa officer’s determination that world-class poker experience did not constitute athletics under the Self-Employed Program.  This was actually our firm’s case, which we unfortunately lost.  After noticing that the ESDC listed “poker player” as an example of an “athlete,” we successfully represented several world-class poker players in immigrating to Canada under the Self-Employed Program.

After a visa officer refused the application, we took the decision to Federal Court.  IRCC ultimately prevailed, with Justice Fothergill noting that:

The Applicant referred to CIC’s National Occupational Classification (NOC) for athletes, which specifically contemplates that poker players may fall within this category. However, I agree with the Respondent that this NOC is intended for applications under the federal skilled worker scheme, and not the self-employed class. While it is true that the NOC for federal skilled worker applicants in the athletes category may include “chess players and poker players”, the Regulations, definitions and guidelines that apply to self-employed immigrants are silent on this point.

As such, as Justice Fothergill did not provide any analysis for why “chess players and poker players” should not be considered “athletes,” it appears that it is largely up to the visa officer to determine whether a given activity meets the definition of “athlete” under the Self-Employed Program.