Category Archive

In response to the COVID-19 pandemic, the Canadian government has implemented several measures that impact immigration programs and the ability to enter Canada. Current measures under the Non-US OIC and the Quarantine OIC will be effective until June 30, 2020, while current measures under the US OIC will be effective until April 21, 2020, and current measures under the Interim Order are effective until further notice.   Please note that the Canadian government is expected to amend its policies as needed in the coming weeks and months and as such we ask that you contact us for advice before relying on the information provided in this memo.   PERSONS ALLOWED INTO CANADA   Before determining whether you fall into one of the categories below, please note that any persons exhibiting COVID-19 symptoms (e.g. fever and cough, or fever and breathing difficulties) will not be allowed to board an aircraft to fly into Canada, regardless of your status in Canada. This blanket prohibition affects Canadian citizens and permanent residents. You will, however, be allowed to enter Canada through the Canada–US land border, though you will be subject to the 14-day self-isolation requirement outlined in the Quarantine OIC.   Please note that, … Read More

In December 2018 I wrote an article for The Canadian Immigrant about a Supreme Court of Canada case that had just been heard which could have a significant impact on Canadian immigration law.  The case, Minister of Citizenship and Immigration v. Alexander Vavilov, was about whether a child who was born in Canada to Russian spies is a Canadian citizen.   The Supreme Court of Canada before hearing the case announced that it was considering changing the law on how a legal principle called the “standard of review” works in Canadian administrative law. On December 19, 2019 the Supreme Court of Canada released its decision.  The Supreme Court created a revised framework for the standard of review in judicial review applications.  Vavilov has significant implications for how Canada’s Federal Court will review the decisions of immigration officials. Understanding The Standard of Review As I wrote in December, the standard of review pertains to how courts review administrative tribunal decisions. In the immigration context, administrative tribunals include visa officers, border officials and Immigration and Refugee Board of Canada members.  The Federal Court has the jurisdiction to review all decisions of these tribunals, including visa refusals, stays of removal, deportation orders, etc. The … Read More

On October 21, 2019 Canada will have its 43rd Parliamentary election.  There are six main political parties running.  The first is the Liberal Party of Canada, led by Prime Minister Justin Trudeau.  The Liberals are generally regarded as a centrist party and have governed since October, 2015.  The second is the Conservative Party of Canada, led by Andrew Scheer.  The Conservatives are a centre-right party that previously governed Canada from 2006-2015 under Stephen Harper.  The third is the New Democratic Party, a left-wing or progressive party, led by Jagmeet Singh.  The fourth is the Green Party of Canada, led by Elizabeth May, a party that is typically known for its environmental platform, although it does have a detailed platform on all of the important issues facing Canada.   The fifth is the Bloc Québécois, led by Yves Francois Blanchet. The Bloc is a Quebec nationalist party that only runs candidates in Quebec.  Finally, there is the People’s Party of Canada, a recently formed right-wing party led by Maxime Bernier. As of writing, polls suggest that Canada is likely heading to a minority government.  This means that none of the political parties above will win enough seats to govern without the support … Read More

Section 129 of the Criminal Code, RSC 1985, c C-46 states: Offences relating to public or peace officer: 129 Every one who (a) resists or wilfully obstructs a public officer or peace officer in the execution of his duty or any person lawfully acting in aid of such an officer, (b) omits, without reasonable excuse, to assist a public officer or peace officer in the execution of his duty in arresting a person or in preserving the peace, after having reasonable notice that he is required to do so, or (c) resists or wilfully obstructs any person in the lawful execution of a process against lands or goods or in making a lawful distress or seizure, is guilty of (d) an indictable offence and is liable to imprisonment for a term not exceeding two years, or (e) an offence punishable on summary conviction. There are several principles pertaining to s. 129 of the Criminal Code that can be helpful to determining equivalency. Ancillary Powers Doctrine In the Supreme Court of Canada decision Fleming v. Ontario, 2019 SCC 45, the Supreme Court of Canda held that a police power to arrest someone who is acting lawfully in order to prevent a breach of the peace is not reasonably necessary for … Read More

Canadian work experience that is volunteer does not typically count towards immigration. Regulation 73(2) of the Immigration and Refugee Protection Regulations states that for the purposes of this Division, work means an activity for which wages are paid or commission is earned.  The Division includes the Federal Skilled Worker Class, the Canadian Experience Class, the Federal Skilled Trades Class and the Provincial Nominee Class. The reason is that economic classes are designed to determine whether an applicant can become economically established.

Res judicata is a legal principle which means “a matter already judged.” Pursuant to the Supreme Court of Canada’s decision in Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, there is a three part test for determining whether res judicata applies, as follows: the same question has been decided earlier in the proceedings; the prior decision that is said to create the estoppen must have been final; and the parties (or their representatives) to the prior decision must be the same as the parties to the proceedings in which the doctrine of issue estoppel is being raised. In Penner v Niagara (Regional Police Services Board), 2013 SCC 19, the Supreme Court further held that even if the pre-conditions are met there is a residual discretion to not apply the doctrine where it is in the interests of justice to deal with the matter on its merits as well as where there is decisive new evidence that was not previously available. When stating the test it is important to note that issue estoppel is trigerred when the same issue is being re-litigated regardless of whether or not the same facts are before the decision-maker.  New evidence is relevant to the second step … Read More

The principle of functus officio is based upon the finality of judgments and jurisdiction that once a formal decision is rendered, signed and communicated to the parties it cannot be re-opened. The Supreme Court of Canada’s decision in Chandler v. Alberta Association of Architects,  [1989] 2 S.C.R. 848, is the leading case on functus officio.  There, Justice Sopinka wrote that: As a general rule, once such a tribunal has reached a final decision in respect to the matter that is before it in accordance with its enabling statute, that decision cannot be revisited because the tribunal has changed its mind, made an error within jurisdiction or because there has been a change of circumstances. It can only do so if authorized by statute or if there has been a slip or error within the exceptions enunciated in Paper Machinery Ltd. v. J. O. Ross Engineering Corp., supra. To this extent, the principle of functus officio applies. It is based, however, on the policy ground which favours finality of proceedingsrather than the rule which was developed with respect to formal judgments of a court whose decision was subject to a full appeal. For this reason I am of the opinion that its application must be more flexible and less formalistic … Read More

Natalie Drolet is the Executive Director / Staff Lawyer for the Migrant Workers Centre. We discuss the history of Canada’s caregiver programs, current issues and what the future looks like. 2:30 – What is a caregiver and how have Canada’s caregiver work permit and immigration programs traditionally worked? 7:00 – What are employer specific work permits? How do these impact caregivers? 14:40 – How do Canadian caregivers find families who are overseas? 16:00 – Why is the caregiver program necessary? Why are Canadians not applying for these positions? What role do wages play? 21:10 – How does the Interim Pathways program work? 29:14 – Could an Expression of Interest Intake model come to the caregiver program? 31:30 – What are employer compliance issues in the caregiver program? What are some of the abuses that occur? 38:00 – Are the problems now similar to problems that the program has traditionally faced? 43:00 – Where do caregivers live out typically stay? 45:00 – What will the program likely look at in the future? 56:00 – Do the caregiver programs allow governments to avoid funding daycare? 57:30 – Where do most caregivers come from?

The Supreme Court of Canada in 2019 clarified the law regarding the requirements to convict someone for child luring under the Criminal Code.  The decision, R v. Morrison, has implications for people who may be inadmissible to Canada for serious criminality.   Section 172.1(1) of the Criminal Code prohibits communicating, by means of telecommunication, with a person who is, or who the accused believes is, under the age of 18, 16 or 14 (depending on the circumstances) for the purposes of facilitating the commission of certain designated offences against that person, such as sexual offences. Prior to R v. Morrison, the law was that if someone told someone else they were underage, the law presumed the person believed it. The only exception was if there was evidence that the person didn’t believe it. All the judges at the Supreme Court agreed that this violated the right to be presumed innocent. As a result, in the context of a police sting where there is no underage person, the offence of child luring has three essential elements: (1) an intentional communication by means of telecommunication; (2) with a person who the accused believes is under the requisite age; (3) for the purpose of facilitating the commission of a designated offence … Read More

Immigration, Refugees and Citizenship Canada often makes requests for documents. In Paddayuman v. Canada (Citizenship and Immigration), 2019 FC 28, Justice Manson articulated two important principles for this requirement. First, it is unreasonable to require documents that do not exist. While in Paddayuman this referred testimonies, affidavits and out of court settlement documents, it can also extend to reference letters, custody agreements, etc. Second, the passage of a significant amount of time, while not determinative, does suggest that the stringency of document requirements should be viewed with a purposive lens.