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.