On September 21, 2017 the immigration provisions of the Canada-European Comprehensive Economic and Trade Agreement (“CETA”) came into effect.
Chapter 10 of CETA facilitates the temporary entry of business persons. The European Union’s commitments are the most ambitious that the European Union has ever negotiated in a free trade agreement. For Canada, CETA’s temporary entry provisions contain similar ideas to those contained in the North American Free Trade Agreement (“NAFTA“), although there are very significant differences.
CETA is significant from a Canadian immigration perspective because prospective foreign workers who are eligible for work permits under CETA do not require Labour Market Impact Assessments (“LMIAs“). This means that companies do not have to first test the Canadian labour market before hiring a foreign worker, nor do they have to commit to labour market benefits.
Any Canadian businesses seeking to hire United States or Mexican nationals will typically begin by determining whether their prospective employees are eligible for work permits under NAFTA. When CETA takes affect, the same will be true for Canadian employers hiring citizens from the European Union.
If you are a Canadian business seeking to employ a European Union national, or you are a European national seeking to work in Canada, the following are things that you should know about CETA.
1. CETA Contractual Service Providers will not need a LMIA to work in Canada for a 12-month period every 24 months.
Contractual service providers are people employed by a European Union enterprise that does not have an establishment in Canada and that has signed a contract to supply a service to a consumer in Canada that requires the presence on a temporary basis of the European company’s employee in Canada. To qualify for a LMIA exemption,Read more ›
On September 20, 2017 Immigration, Refugees and Citizenship Canada affirmed that upfront medical examinations are no longer available for Family Class applicants.
The inability of Family Class applicants to do upfront medical examinations was one of the changes introduced when the Liberal Government of Canada announced that it had reformed the Family Class application processing system to reduce backlogs. At the time it was unclear why removing the ability of applicants to complete their medical examinations before applying for permanent residence would speed things up, and it is still not clear if (or why) this is the case.
It is also problematic for those who want to work in Canada during the processing of their application in certain occupations.
The issue involves Inside-Canada Spouse or Common-Law Partner in Canada Class (“SCPCC“) applicants who work in health or education professions and who are eligible for SCPCC work permits. Because of IRCC’s announcement, applicants have had difficulty obtaining work permits that do not have medical restrictions. Indeed, in at least one case a Panel Physician refused to do a medical exam for a nurse who needed the medical restriction on her work permit removed, on the basis of IRCC’s instructions.
I hope that if anyone at IRCC is reading they reconsider their decision to not let Family Class applicants do upfront medicals, or at least clarifies that applicants who are applying under the SCPCC are exempt from the upfront medical restriction.Read more ›
On May 19, 2017 the Federal Court of Canada issued a scathing criticism of how the Department of Employment and Social Development Canada is breaching procedural fairness in how it bans companies from the Temporary Foreign Worker Program.
In Ayr Motors Express Inc. v. Canada (Employment Workforce Development and Labour), Justice Le Blanc noted that the Department had not respected a trucking company’s “basic right to be heard” before it banned them for two years from hiring foreign workers.
Citing the Federal Court decision in Tiedeman v Canada (Human Rights Commission), Justice Le Blanc further found that “[t]o solicit the representations of a party and, subsequently, to fail to consider them, renders hollow the hallowed principle of the right to be heard”.
The breach of procedural fairness arose during an inspection involving whether Ayr Motors Express Inc. had failed to comply with the Temporary Foreign Worker Program. Canada’s Immigration and Refugee Protection Regulations require that the Minister of Employment, Workforce Development and Labour be the individual who actually bans a company from hiring foreign workers under the Temporary Foreign Worker Program. However, because that individual is as a federal Cabinet Minister understandably very busy, she instead based her decision on a six page memo that her Department provided her. This memo contained none of Ayr Motors Express Inc.’s representations, and instead simply contained the Department’s summary conclusions.
Justice Le Blanc found that this was unacceptable, and it will be interesting to see how the Department responds.Read more ›
The following is an article that I recent wrote for The Canadian Immigrant:
It is generally understood that visitors to Canada cannot work without work permits. The consequences for doing so can include removal from Canada, being unable to apply for work permits for six months, year-long prohibitions on returning to Canada and even possible criminal sanctions for employers.
Canadian immigration legislation defines “work” broadly. It includes any activities for which wages are paid or commission is earned, and any activity that competes directly with the activities of Canadian citizens or permanent residents in the Canadian labour market. Because of this, volunteer work, unpaid internships and practicums may also require work permits.
However, while the definition of what constitutes work is broad, there are many activities that people would generally consider work that do not require work permits.
In our increasingly globalized and digitized world, perhaps the most important work permit exemption is for remote work. Canada’s immigration department allows visitors to Canada to perform long-distance (by telephone or internet) work if their employer is outside Canada and they are remunerated from outside Canada. As such, many people who work remotely for companies abroad are able to reside in Canada for extended periods and continue working for their foreign employers. Typical examples include IT consultants, website developers, accountants, and so on.
Self-employment in a purely remote business can also be permitted. For example, an individual who runs a subscription-based website may be able to do so while residing in Canada as a long-term visitor. However, the legality of this may become questionable if the individual begins selling products directly to Canadians.
The fine line between work that requires a work permit and work that doesn’t is also apparent when it comes to volunteer work.Read more ›
I was recently asked whether the lock-in age for dependency is when an application is submitted or when it was assessed. In short, in Hamid v. Canada (Minister of Citizenship and Immigration),  2 FCR 152, 2006 FCA 217, the Federal Court of Appeal stated:
A child of a federal skilled worker who has applied for a visa, who was 22 years of age or over, and who was considered dependent on the skilled worker at the date of application by virtue of his or her financial dependence and full‑time study, but who does not meet the requirements of a “dependent child” within the meaning of subparagraph 2(b)(ii) of theImmigration and Refugee Protection Regulations, SOR/2002‑227, when the visa application is determined, cannot be included as part of his or her parent’s application for permanent residence in Canada.
In Anata v. Canada, the Federal Court affirmed that there is nothing in the jurisprudence or the Rules or Guidelines relevant to a live-in caregiver application to suggest that “dependent child” in this context should have a different meaning, or should be assessed at the time the application is submitted, and should not take into account what happens between the time of the application and the time of the decision.Read more ›
The Canada Border Services Agency has confirmed to the Law Society of British Columbia that border officials have been instructed not to examine documents where the officer suspects that they may be subject to solicitor-client privilege.Read more ›
Ron McKay is a past Chair of the Immigration Consultants of Canada Regulatory Council’s (“ICCRC”) Board of Directors. He is a former Immigration Officer who spent ten years at the Canadian Embassy in Tokyo, Japan. He is also a past National President of the Canadian Association of Professional Immigration Consultants.
In this episode we discuss the history of the immigration consultant profession in Vancouver and current issues that it faces.
3:30 – We discuss the history of immigration consultants in Canada, including an in depth discussion of the Mangat case, in which the Supreme Court of Canada determined that the federal government could allow non-lawyers to practice immigration law. We also discussed the Canadian Society of Immigration Consultants (“CSIC”), the first regulatory body of immigration consultants in Canada.
24:00 – We get into governance issues at regulatory oversight issues at both CSIC and the ICCRC.
38:30 – We talk about ghost consultants and what the immigration consultancy profession can do about it.
50:00 – We discuss how the immigration consulting profession needs to be regulated yet at the same time be independent of the government.
53:00 – Steven asks how the ICCRC determines how many consultants there should be. Are we reaching a saturation point? Should there be limits as to which aspects of immigration law they can practice?
Read more ›
The following is an article that I wrote for Policy Options.
The first paper that I wrote in law school was about legal ethics. I submitted a seven-page essay arguing that restricting the practice of law to graduates of law school was unethical, given the crisis of access to justice that so many face, and that the free market should instead regulate who can and cannot charge fees to provide legal representation. I got my lowest mark in law school.
The study and practice of law moderated many of my views, and my opinion on who should be able to practise law has been adjusted accordingly. It has become clear to me that those who receive fees in exchange for the provision of legal advice must be regulated, and that in an era of easy Internet marketing, paid-for reviews and fake news, the free market is incapable of performing this role. However, I still believe that access to the ability to practise law should be extended beyond those who have completed three years of law school.
It may not be surprising then that, unlike many immigration lawyers, I do not consider the existence of immigration consultants to be inherently problematic. When I started practising immigration law, a local immigration consultant was an important mentor to me, and some of the most passionate people I know who are advocating for greater justice and fairness in Canada’s immigration system are consultants.
Unfortunately, it is not possible to practise immigration law for long before encountering people who have been the victims of immigration consultants who provided extremely bad representation, ranging from sheer incompetence to fraud. In many other cases, the prospective immigrants were not victims of fraudulent consultants but willing participants in their schemes.Read more ›
The Canadian Bill of Rights, S.C. 1960, c. 44 (the “Bill of Rights“) is a Canadian federal statute that was enacted in August 1960. It is quasi-constitutional in nature. As it is an Act of Parliament it applies only to federal law. It also predates the Charter of Rights and Freedoms, which has largely superseded the Bill of Rights in importance.
However, not all of the provisions of the Bill of Rights were reproduced in the Charter of Rights and Freedoms.
Section 2(e) of the Bill of Rights provides:
2. Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgment or infringement of any of the rights or freedoms herein recognized and declared, and in particular, no law of Canada shall be construed or applied so as to […]
(e) deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations.
In Canadian National Railway Company, the Federal Court established that four basic conditions must be met in order for paragraph 2(e) of the Bill of Rights to be engaged:
- The applicant must be a “person” within the meaning of paragraph 2(e);
- The arbitration process must constitute a “hearing […] for the determination of [the applicant’s] rights and obligations”;
- The arbitration process must be found to violate “the principles of fundamental justice”;
On June 12, 2017 Canada launched the Global Skills Strategy. The Global Skills Strategy introduces new work permit programs and work permit exemptions at both Immigration, Refugees and Citizenship Canada (“IRCC”) and the Department of Employment and Social Development Canada (“ESDC”).
Specifically, the Global Skills Strategy includes:
- ESDC introducing the Global Talent Stream to its Labour Market Impact Assessment (“LMIA”) program;
- IRCC committing to processing certain work permit applications within 10 days;
- IRCC introducing a new work permit exemption for short-term work in certain occupations; and
- IRCC introducing a new work permit exemption for certain researchers.
All employers of prospective foreign workers, and especially those in technology related industries, should familiarize themselves with the Global Skills Strategy.
ESDC’s Global Talent Stream
Employers of foreign workers for positions that are eligible for ESDC’s Global Talent Stream will need to decide whether they want to submit their LMIA application(s) under the normal LMIA streams or under the Global Talent Stream.
There are two main benefits of participating in the Global Talent Stream. First, ESDC is committing to processing LMIA applications submitted under the Global Talent Stream within 10 business days. Second, LMIA applications submitted under the Global Talent Stream will not have a minimum recruitment requirement, although employers will still have to list their recruitment efforts.
The Global Talent Stream consists of two eligibility categories.
A company will be eligible for Category A if they are hiring unique and specialized talent and if that talent has been referred to the Global Talent Stream by one of ESDC’s designated partners. As of June 12, 2017 the designated partners are the:
- Atlantic Canada Opportunities Agency
- BC Tech Association
- Business Development Bank of Canada
- Communitech Corporation
- Council of Canadian Innovators
- Federal Economic Development Agency for Southern Ontario
- Global Affairs Canada’s Trade Commissioner Service
- ICT Manitoba (ICTAM)
Please note that none of the information on this website should be construed as being legal advice. As well, you should not rely on any of the information contained in this website when determining whether and how to apply to a given program. Canadian immigration law is constantly changing, and the information above may be dated. If you have a question about the contents of this blog, or any question about Canadian immigration law, please contact the Author.
- Business and Entrepreneur Immigrantion
- Citizenship Applications and Revocations
- Family Class (Spousal Sponsorships, Parents & Grandparents)
- Humanitarian and Compassionate
- Immigration Consultants
- Immigration Trends
- Judicial Reviews
- Labour Market Impact Assessments
- Maintaining Permanent Residency
- Provincial Nominee Programs
- Skilled Immigration (Express Entry, CEC, FSWC, Etc.)
- Study Permits
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- Temporary Resident Visas
- Work Permits