Procedural fairness in Labour Market Impact Assessment (“LMIA“) applications is relatively low. In Frankie’s Burgers, the first reported Federal Court decision on the matter, the Court stated that (citations removed): The requirements of procedural fairness will vary according to the specific context of each case. In the context of applications by employers for [Labour Market Impact Assessments], a consideration of the relevant factors that should be assessed in determining those requirements suggests that those requirements are relatively low. This is because, (i) the structure of the [LMIA] assessment process is far from judicial in nature, (ii) unsuccessful applicants can simply submit another application, and (iii) refusals of [LMIA] requests do not have a substantial adverse impact on employers, in the sense of carrying “grave,” “permanent,” or “profound” consequences. However, as noted in the Kuzol decision, while the duty of procedural fairness in a LMIA application may be at the low end of the spectrum, it is not non-existent. Extrinsic Evidence If an officer with the Department of Economic and Social Development (“ESDC“) relies on extrinsic evidence in reaching a decision, then there is a duty to disclose that evidence to the employer prior to the decision being made. Extrinsic evidence does not include information that … Read More
Borderlines Podcast Episode 9 – The Constitutionality of Retrospective Laws, with Garth Barriere & Eric Purtzki
On the 9th podcast episode, Garth Barriere and Eric Purtzki joins Peter Edelmann and Steven Meurrens to discuss the constitutionality of laws that are retroactive or retrospective. Peter and Steven also discuss the recent election of Donald Trump as the 45th president of the United States. Garth and Eric are both criminal defence attorneys in Vancouver. Both have appeared before the Supreme Court of Canada on numerous occasions. A retrospective law is a piece of legislation that operates going forward, but looks to change the consequence for a past action. A retroactive law changes the legal consequences of what the act was in the past. It changes someone’s legal status as it was in the past. There is a presumption against both retrospectively and retroactivity in Canada, however, there is no general Charter protection against it. The Supreme Court of Canada in R. v. K.R.J.can be found here. Garth and Eric both appeared as counsel in this case, which formed the basis for our discussion. In this case, the Supreme Court affirmed that while criminal laws should generally not operate retrospectively, an exception would be made in the case of sentencing for sexual offenders involving minors. In reading this case, and listening to the … Read More
IRCC Clarifies Non-Compliance in the International Mobility Program
It is imperative that employers hiring foreign workers in the International Mobility Program (“IMP“) understand the consequences of non-compliance. Immigration, Refugees and Citizenship Canada (“IRCC“) has finally published information on its website which summarizes how it will determine when non-compliance has occurred and what the consequences will be. Since December 1, 2015, IRCC has had the legislative authority to apply administrative tools, including warning letters, administrative monetary penalties (“AMPs“) and bans on employers accessing the IMP to certain employers where an IRCC officer has determined that an employer has breached the terms and conditions of participating in the IMP. Breaches that Occurred Before December 1, 2015 It is important to note that the AMP and the bans described below only apply to employer breaches that occurred after December 1, 2015. The penalty to an employer for unjustified breaches that occurred prior to December 1, 2015 is a two-year ban on that employer from being able to hire foreign workers under the IMP. However, while the consequences to an employer for being found non-compliant changed on December 1, 2015, the way in which IRCC assesses whether non-compliance has occurred remains substantially the same. The Administrative Monetary Penalty Regime Under IRCC’s AMP regime, employer non-compliance is divided … Read More
Express Entry’s Comprehensive Ranking System to Change on November 19, 2016
On November 10, 2016, the Government of Canada announced that it would be changing how points are calculated in Immigration, Refugees and Citizenship Canada’s (“IRCC“) Express Entry program. The most significant change is that having a qualifying offer of arranged employment that is supported by a Labour Market Impact Assessment (“LMIA“) will no longer guarantee an Invitation to Apply (an “ITA“) for permanent residency. However, foreign nationals who completed post-secondary education in Canada, as well as certain closed work permit holders in the International Mobility Program, will benefit. The changes will take effect on effect on November 19, 2016. Overview of the Current Comprehensive Ranking system Under Express Entry, a potential applicant to one of Canada’s three main economic immigration programs must complete an online Express Entry profile where they provide information about their skills, work experience, language ability, education, and other details. That individual is then entered into a pool of Express Entry candidates where they are given a score out of 1200 using a Comprehensive Ranking System (“CRS“) based on the information that they provided when creating their Express Entry profile. Under IRCC’s current CRS, an individual gets 600 points if they have an offer of full-time employment that … Read More
Free trade agreements help those who want to work in Canada, but the Trump presidency could impact Americans
On Oct. 30, 2016, Canada and the European Union signed the Comprehensive Free Trade Agreement (CETA), which, amongst other things, will make it easier for European Union citizens to work in Canada without their employers first needing to obtain labour market impact assessments (LMIA). CETA is only the latest free trade agreement that Canada has signed. One of the first steps that a foreign national who is interested in working in Canada should do is determine whether their home country has signed a free trade agreement with Canada. If so, they should check if the agreement encompasses their specific area of employment. LMIA vs. free trade agreements The main benefit of a free trade agreement encompassing one’s employment is that the person’s potential Canadian employer does not need to first obtain a positive or neutral LMIA prior to the foreign worker being able to obtain a Canadian work permit. LMIAs can be a very cumbersome process. They generally require that an employer conduct domestic recruitment, meet prevailing wage requirements, complete numerous application forms, enter into a transition plan, and pay a $1,000 per foreign worker application fee. For many employers, obtaining LMIAs is simply too great an obstacle to employing … Read More
Borderlines Podcast Episode 8 – Lobat Sadrehashemi on Citizenship Revocation for Misrepresentation
Lobat Sadrehashemi joins Peter Edelmann, Deanna Okun-Nachoff and Steven Meurrens to discuss issues in Canada’s citizenship revocation and refugee determination processes. The recent controversy around Maryam Monsef guides our discussion. Lobat Sadrehashemi is an Associate Counsel at Embarkation Law Corporation. She is also the Vice President of the Canadian Association of Refugee Lawyers (“CARL“). CARL’s reform proposals for Canada’s inland refugee determination system and other aspects of the immigration system, which we recently submitted to the Ministers, their staff, IRCC, and the Immigration and Refugee Board can be found here. Lobat’s paper on Refugee Reform and Access to Counsel in British Columbia can be found here.
Government of Canada To Abolish Conditional Permanent Residency in 2017
On October 29, 2016, the Government of Canada announced that it would be abolishing the conditional permanent residency regime currently in place in the Family Class and the Spouse or Common-Law Partner in Canada Class. Since October, 2012, conditional permanent residency has applied to individuals who are the spouse, common-law, or conjugal partner of their sponsor for two years or less when they submit their sponsorship applications and who do not have children in common with their sponsor when they submit the sponsorship applications. Conditional permanent residents are required to cohabit in a conjugal relationship with their sponsors for a continuous period of two years after the day on which they become permanent residents. If Immigration, Refugees and Citizenship Canada (“IRCC“) determines that conditional permanent residents have breached the condition, then IRCC will declare them inadmissible to Canada, and removal proceedings will be initiated. An exception to this is where there is abuse. Conditional permanent residents are able to appeal such decisions to the Immigration Appeal Division, which can consider humanitarian & compassionate considerations. From 2013-2015, 58 218 spouses and partners along with their children were admitted to Canada as conditional permanent residents. This represented approximately 42% of admissions of spouses, partners, and their children within Canada’s family reunification programs. During … Read More
Borderlines Podcast Episode 7 – David Eby and Tom Davidoff on Vancouver’s Housing Market
On the 7th podcast episode, Tom Davidoff and David Eby joins Peter Edelmann and I to discuss Vancouver’s housing market. Tom Davidoff is an Associate Professor at the University of British Columbia’s Sauder School of Business. He is frequently cited in the Vancouver media as being an expert on Vancouver’s housing market, and was part of a team of nine academics who created the B.C. Housing Affordability Fund proposal. David Eby is the Member of the Legislative Assembly for Vancouver-Point Grey, and was previously the Executive Director of the British Columbia Civil Liberties Association. He is a passionate advocate for making Vancouver a more affordable place to live. What has been going on in the Vancouver housing market? How fast have prices been rising? Is there evidence that foreign investment / foreign funds has been the cause of the increase in Vancouver housing prices? What data is there regarding the amount of foreign home ownership in Vancouver? What is the property transfer tax, and what are the new rules on how it applies to foreign buyers? Is there evidence that high housing prices impacts the rental market? Does it matter if the landlord is a Canadian or a foreigner? Why should high … Read More
Priority Processing in LMIA Applications
Labour Market Impact Assessment (“LMIA“) applications typically take 1-4 months to process. However, the Department of Employment and Social Development Canada (“ESDC“) processes LMIAs for in-demand occupations (skilled trades), highly paid occupations (top 10%) or short-duration (120 days or less) entries within a 10 business day service standard. High-Demand To be considered a High-Demand LMIA, the position must be for a skilled trade on the list of eligible occupations below, and the wage being offered for the position must be at, or above, the provincial / territorial median wage where the job is located. Tables about unemployment, Median wages, 10-day speed of service. NOC 2006 NOC 2011 Occupation Title 7212 7202 Contractors and supervisors, electrical trades and telecommunications occupations 7215 7204 Contractors and supervisors, carpentry trades 7219 7205 Contractors and supervisors, other construction trades, installers, repairers and servicers 7271 7271 Carpenters 7216 7301 Contractors and supervisors, mechanic trades 7217 7302 Contractors and supervisors, heavy equipment operator crews 8211 8211 Supervisors, logging and forestry 8221 8221 Supervisors, mining and quarrying 8222 8222 Contractors and supervisors, oil and gas drilling services 8241 8241 Logging machinery operators 8252 / 8253 8252 Agricultural service contractors, farm supervisors and specialized livestock workers 9211 9211 Supervisors, mineral and … Read More
Who Do You Report To – Misrepresentation
I’m writing this post quickly after reading the Federal Court’s decision in Hehar v. Canada (Citizenship and Immigration), 2016 FC 1054. In the decision, Justice Brown writes: Naveen Kumar Verma gave radically different answers from those given by the Applicant during the verification process in response to the same two simple questions. First, in response to the question, “Who does she report to/Who do you report to,” two different individuals, with different job titles were named. I have never liked the “who do you report to” question. Prior to becoming a Partner at Larlee Rosenberg I theoretically could have given the name of either Peter Larlee or Ryan Rosenberg. If my Legal Assistant were to be asked “who does she report to” I could see her answering that it was either me or Ryan Rosenberg, the Managing Partner. Both answers would be correct. Contradictory answers to this question often result in great suspicion by visa officers that is difficult to overcome. And it really shouldn’t.