In addition to the defence of duress, discussed elsewhere on this blog here, the Federal Court of Canada in Canada (Public Safety and Emergency Preparedness) v. Aly has determined that the defence of duress can apply to negate an inadmissibility finding for criminality. The defence of necessity requires proof that: there exists a clear and imminent peril; there is no reasonable legal alternative available to disobeying the law; and there is proportionality between the harm inflicted and the harm avoided. As the Supreme Court of Canada noted in R v. Latimer, the […]

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The Government of Canada, as well as several provincial governments, have introduced several measures to protect temporary foreign workers and maintain the integrity of Canada’s foreign worker programs. Meera Thakrar is a Canadian immigration lawyer whose practices focus on helping companies recruit and retain foreign workers. Meera joins Peter Edelmann, Deanna Okun-Nachoff and Steven Meurrens to discuss various measures that different levels of government have introduced to protect foreign workers, challenges do governments face in this task and how employer compliance inspections work. 2:15 – Deanna discusses vulnerabilities that caregivers face. […]

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The Temporary Foreign Worker Program, also known as the Labour Market Impact Assessment, is the main program through which Canadian companies hire temporary foreign workers. Kyle Hyndman and Meera Thakrar are both Canadian immigration lawyers whose practices focus on helping companies recruit and retain foreign workers. We discuss numerous aspects of obtaining Labour Market Impact Assessments, including prevailing wage, recruitment, transition plans, processing times, job match, the Global Talent Stream and the Owner – Operator LMIA. 3:00 – What are the first questions or things that Kyle and Meera tell Canadian […]

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Marshall Rothstein served as a Justice on the Supreme Court of Canada from 2006 – 2015. He previously was a Judge on the Federal Court of Canada and the Federal Court of Appeal. Garth Barriere is a criminal defence attorney in Vancouver. He was counsel in Khosa v. Canada (Citizenship and Immigration, a major Supreme Court of Canada immigration decision in which Justice Rothstein wrote a concurring opinion. In this episode Justice Rothstein provides tips for written and oral advocacy. While the focus is on appellate litigation, anyone interesting in strengthening […]

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Since July 4, 2012, Minister Instructions have been in place that prohibit temporary foreign workers in Canada from working in a business that is in a sector where there are reasonable grounds to suspect a risk of sexual exploitation of some workers.  The Ministerial Instructions define the business sectors where there are reasonable grounds to suspect a risk of sexual exploitation as being strip clubs, escort services and massage parlours. When receiving applications for work permits made by foreign nationals seeking to work in a business that is in a sector […]

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Regulation 4 of Canada’s Immigration and Refugee Protection Regulations state that a foreign national shall not be considered a spouse, a common-law partner or a conjugal partner of a person if the marriage, common-law partnership or conjugal partnership (a) was entered into primarily for the purpose of acquiring any status or privilege under the Act or (b) is not genuine. A Hasty Marriage In Nadasapillai v Canada (Citizenship and Immigration), 2015 FC 72, Justice Diner held that the fact that a marriage was entered into after a short courtship is not determinative of a mala fide marriage. He stated: The Panel […]

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One of the more common reasons for a study permit application to be refused is because a visa officer determines that an applicant’s proposed program of study in Canada is unreasonable given the applicant’s background.  The wording of such refusals varies, but it typically includes statements about how an individual could study in a similar program for a cheaper cost in their country of residence, or that there is no logical academic progression given their previous studies. The following is an example of such a refusal. The Law Visa officers have […]

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Sean Rehaag, an Associate Professor at Osgoode Hall Law School, has published a paper titled Judicial Review of Refugee Determinations (II): Revisiting the Luck of the Draw.  Its Abstract states: This article updates an earlier empirical study of decision-making in the refugee law context in Canada’s Federal Court. The initial study found that outcomes in Federal Court applications for judicial review of refugee determinations depended all too often on the luck of the draw – on which judge decided the case. Since the initial study was released, the Federal Court has adopted […]

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The Department of Employment and Social Development Canada (“ESDC”) has very strict procedures for returning incomplete Labour Market Impact Assessment (“LMIA”) applications. All applications are reviewed for completeness. A “complete” application means that the employer has used the appropriate form and an acceptable version, and: filled out all fields in all the necessary forms; included all the documents that are requested; signed all the forms, where required; and provided the payment form for the processing fee (where applicable). If an application is missing information, an officer will determine if the missing […]

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Section 40 of the Immigration and Refugee Protection Act provides that a permanent resident or foreign national is inadmissible to Canada for directly or indirectly misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of Canada’s immigration laws. The general consequence of misrepresenting is a five-year ban from entering Canada. Canada is very strict on misrepresentation.  In Bundhel v. Canada (Citizenship and Immigration), 2014 FC 1147, for example, Mr. Bundhel had been charged and convicted with an offence, which had been overturned on appeal.  Mr. […]

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