On June 26, 2018 the British Columbia Provincial Nomination Program (the “BC PNP”) clarified and/or modified several aspects of its programs.
The more significant revisions that applicants and practitioners should be aware of are:
- Previously, applicants to the BC PNP – Skilled Worker programs, and their spouses, could not have a combined ownership / equity stake of more than 10% in the British Columbia company that was offering them employment. Now, they cannot have held more than 10% ownership in the five pear period preceding the application and throughout the BC PNP application process.
- Applicants to the BC PNP Tech Pilot must now qualify under 1 out of 29 eligible occupations. The job offer must be at least one year in duration, and there must be at least 120 calendar days remaining on the job offer at the time of the application.
- The BC PNP previously would not nominate individuals if they were not lawfully admitted in their country of current residence. This requirement has been removed.
- Post nomination the BC PNP no longer wishes for employers to notify them of any promotions, and instead wants to be notified of demotions.
- The BC PNP has changed the wording for bonus points from bonus points to additional points. This may eliminate the ability of individuals to get bonus points in a category that they got zero points in (except for the bonus points).
Read more ›
West Fraser Mills Ltd. v. British Columbia (Workers’ Compensation Appeal Tribunal)is a 2018 Supreme Court of Canada decision in which the Supreme Court had to determine whether it should overturn the WCAT’s decision to expand the duty of employers to ensure that their operations are planned and conducted in accordance with safe work practices to owners. The case provides a useful context to explore the topic of “standard of review,” which is extremely divisive in Canadian jurisprudence.
Robert Danay is a lawyer with Canada’s Department of Justice who has a passion for this topic, and has researched every Supreme Court of Canada decision on the issue going back twenty years. He can be found on Twitter at @RobertDanay.
3:10 – An overview of the facts.
6:00 – What got Robert Denay into administrative law and an interest in the “standard of review.”
10:00 – What is an administrative tribunal?
11:30 – What is judicial review?
12:10 – What is standard of review?
16:50 – In the reasonableness standard, who determines what is reasonable?
18:10 – What is the trend in standard of review jurisprudence in terms of the amount of deference that should be shown to administrative tribunals?
22:30 – The Supreme Court has announced that it is looking to revisit the standard of review. What is the background of this, and what are some likely outcomes?
24:30 – What was the result of Westcoast ?
43:00 – What is Justice Rowe’s concern regarding whether administrative tribunals have an expertise in statutory interpretation? Should all administrative tribunals get the same deference?
46:00 – Why has standard of review been so challenging for the courts to develop a doctrine on?Read more ›
On June 1, 2018 Canada’s Minister of Immigration, Refugees and Citizenship Canada implemented a Temporary Public Policy Regarding Excessive Demand on Health and Social Services (the “Public Policy”).
Canada’s Immigration and Refugee Protection Act states that a foreign national is inadmissible to Canada on health grounds if their health condition might reasonably be expected to cause excessive demand on health or social services.
Health services are defined as any health services for which the majority of the funds are contributed by governments, including the services of family physicians, medical specialists, nurses, chiropractors and physiotherapists, laboratory services and the supply of pharmaceutical or hospital care.
Social services means any social service, such as home care, specialized residence and residential services, special education services, social and vocational rehabilitation services, personal support services and the provision of devices related to those services (a) that are intended to assist a person in functioning physically, emotionally, socially, psychologically or vocationally and (b) for which the majority of the funding, including funding that provides direct or indirect financial support to an assisted person, is contributed by governments, either directly or through publicly-funded agencies.
Finally, excessive demand means a demand on health services or social services for which the anticipated costs would likely exceed average Canadian per capita health services and social services costs over a period of five consecutive years immediately following an immigration medical examination, unless there is evidence that significant costs are likely to be incurred beyond that period, in which case the period is no more than 10 consecutive years.
The 2018 threshold under Canadian immigration legislation is $6,604.
The Rationale for the Change
The Minister has stated that the following was the rationale for the introduction of the Public Policy.Read more ›
Last updated on February 5th, 2019
A Canadian business is employing a foreign worker. They want to promote them or give them a raise. What could be wrong with that?
Quite a few things, as it turns out. There are certain immigration requirements that all employers and foreign worker employees should know before a promotion or raise.
Employer compliance in temporary worker program
For the employer, the risk of a promotion or raise is that it could run them afoul of the Temporary Foreign Worker Program and/or the International Mobility Program. Unless the foreign worker is on an open work permit that contains no restrictions of employment, all employers need to abide by the information that they provided to Immigration, Refugees and Citizenship Canada (IRCC) as part of the work permit process.
In cases where an employer has promoted the foreign worker or otherwise changed their duties, the foreign worker must receive a new work permit before the change is implemented. While the IRCC website specifically cites the examples of a manager being promoted to a director and a technician being promoted to an engineer, all promotions require a new work permit if the promotion results in the employee’s National Occupational Classification code changing.
Whether a raise will require a new work permit will depend on the work permit program used to hire the foreign worker. If the work permit was the result of a positive Labour Market Impact Assessment, then a raise will typically require a new LMIA, although there are ways around this. If the foreign worker was hired through an LMIA exemption, then an increase in wages will not result in the employer being non-compliant unless the new wage indicates a change in duties.
Promoting temporary workers and the impact on immigration
Promotions,Read more ›
Darryl Larson practiced immigration law in Vancouver, British Columbia for almost thirty years. He was a former Chair of the Canadian Bar Association of British Columbia’s Immigration Section, counsel to both individuals and corporations, at one point represented China’s most wanted fugitive, and successfully implemented a succession plan when he retired in 2018.
In this episode Peter, Steven, Deanna and Darryl discuss Darryl’s career as an immigration lawyer in a candid discussion about what practicing immigration law is like.
00:51 – Why did Darryl get into immigration law? (Darryl’s answer really becomes a tale of his move from Edmonton to Vancouver).
8:20 – Who were Darryl’s initial clients? How did Darryl get his initial clients?
11:15 – What was practicing immigration law like in the 1990s compared to what it’s like now? Was the introduction of the IRPA really that big a game changer?
18:15 – What steps did Darryl take to become an expert in the area of immigration?
20:00 – How did Darryl go from practicing mainly immigration enforcement to developing a corporate immigration practice?
22:30 – What were some of Darryl’s most memorable cases?
37:45 – How did some of those cases change Darryl’s perspective on being an immigration lawyer.
41:00 – What did the last ten years of Darryl’s practice look like? How did succession planning work?
43:00 – What would Darryl say to people looking to enter the immigration field?
44:00 – Did Darryl encourage his kids to go to law school?
44:55 – Where does Darryl see the profession going in the next 4-5 years?
48:50 – What things does Darryl think he did right? What things would Darryl have done differently?Read more ›
Last updated on March 8th, 2019
All employers of temporary foreign workers in Canada need to understand how the employer compliance regime works. Both Immigration, Refugees and Citizenship Canada (“IRCC”) as well as the Department of Employment and Social Development (“ESDC”) regularly audit and inspect the employers of foreign workers to make sure that they are complying with the Temporary Foreign Worker Program and/or the International Mobility Program (which are the two main programs through which foreign nationals can work in Canada). Both ESDC and IRCC have indicated that about 25% of employers can expect an inspection in any given year.
Most of these inspections and audits start with the employer receiving a letter from the Government of Canada informing them that they will be examined on a multitude of factors, including whether they have employed the foreign national in the job that they were supposed to, whether they paid the wages that they were supposed to, whether the employer complied with laws regulating employment, whether they maintained records and whether they took reasonable efforts to provide a workplace that was free of abuse.
I have embedded below the standard employer compliance letter that is sent out at the start of an audit.
There are several consequences to Canadian employers of non-compliance with the Temporary Foreign Worker Program and/or the International Mobility Program, including possible fines and prohibitions on hiring foreign workers. The fines can range from a few hundred dollars to up to a maximum of $1,000,000.00 in a calendar year. The bans can range from a few months to a permanent ban.
The Government of Canada maintains what is commonly called an Employer Blacklist on its website.Read more ›