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 element can be obtained quickly and call the employer to obtain the information. Applications that would have been eligible for priority processing but for the missing information are placed in regular processing, even if the information can be obtained quickly. If the application is missing information that is not easy to obtain, then the application will be deemed incomplete. Although ESDC officers will typically shred or delete an incomplete LMIA, officers will enter reasons for why the application was incomplete in the employer’s system file notes. The following information from the ESDC Wiki expands on what is written above.
CBSA Report on Inadmissibility to Canada
Both Immigration, Refugees and Citizenship Canada as well as the Canada Border Services Agency (“CBSA“) are responsible for ensuring that Canada’s immigration system maintains the security of Canadian society. One of the ways that both departments do this is by determining that individuals are inadmissible to Canada. In this post I will review and summarize a CBSA Intelligence Advisory that was obtained through an informal Access to Information Act. The Intelligence Advisory was produced by the CBSA Intelligence Operations and Analysis Division in September 2016. It expired in January 2017. The Intelligence Advisory identified certain countries that at the time posed unique issues for CBSA’s mandate of protecting Canadians. In reproducing the information below my goal is not to stigmatize members of these communities nor to imply that their citizens are a threat. Rather, it is to present information as produced by the CBSA for informational purposes only. Every person deserves to be treated as an individual. However, it is contrary to common sense to suggest that certain communities don’t have unique circumstances. Statistics on Inadmissibility From 2007 to 2016, the Canada Border Services Agency wrote reports for the following inadmissibilities: Year Security Grounds Human Rights Criminal Serious Criminal Organized Crime Health Financial … Read More
Bill C-46 and Retrospectivity
As previously noted on this blog, Bill C-46 will when it takes effect make many offences that currently render someone inadmissible for criminality inadmissible for serious criminality. The Minister of Immigration, Refugees and Citizenship Canada has now affirmed that these changes will not apply retrospectively. As such, people who were previously deemed rehabilitated will continue to be so. As well, people who committed an offence prior to December 18, 2018 will benefit from the previous sentencing provisions in the Criminal Code.
Suing Schools for Post-Graduation Work Permit Refusals
People who graduate from designated learning institutions are often eligible to apply for post-graduation work permits (“PGWP“). However, not all schools are eligible. In addition to other requirements, to be eligible, a student must have graduated from a: public post-secondary school, such as a college, trade/technical school or university, or CEGEP in Quebec; or private post-secondary school that operates under the same rules as public schools (currently applies only to certain private post-secondary institutions in Quebec); or private secondary or post-secondary school (in Quebec) that offers qualifying programs of 900 hours or longer, leading to a diplôme d’études professionnelles (DEP) or an attestation de spécialisation professionnelle (ASP); or Canadian private school that can legally award degrees under provincial law (for example, Bachelors, Masters or Doctorate degree) but only if the student was enrolled in a study programs leading to a degree as authorized by the province. Lawsuits There have been recent media stories about international graduates suing designated learning institutions for misleading them into thinking that they would have been eligible for post-graduate work permits once they graduated. The requirements to establish a claim in negligent misrepresentation are: There must be a duty of care based on a “special relationship” between the representor and the representee; The … Read More
Law Cans Episode 8 – R v. Boutilier (Dangerous Offender Designations) with Eric Purtzki
R. v. Boutilier is a 2017 Supreme Court of Canada decision in which the Court had to determine whether Canada’s dangerous offender designation regime is constitutional. Eric Purtzki is a criminal defence attorney in Vancouver who was counsel to Mr. Boutilier before the Supreme Court. We discuss how Canada’s dangerous offender designation regime works, the consequences of being designated a dangerous offender, his arguments at the Supreme Court, and the decision. 1:15 – The facts of the case – Mr. Boutilier robs a pharmacy with an imitation firearm. A car chase ensues. He pleads guilty to six criminal charges to this. The Crown afterwards seeks a designation that Mr. Boutilier is a dangerous offender. Mr. Boutilier challenged the law on the dangerous offender designation. 2:00 – What are the consequences of being designated a Dangerous Offender? 2:30 – What is the purpose of the dangerous offender designation? 9:30 – What are the requirements to be designated a dangerous offender? 13:30 – What are the statistics of release for dangerous offenders, and how does someone get released from indefinite detention if they are a dangerous offender? 17:00 – When someone enters into a plea … Read More
Law Cans Episode 7 – R v. Wong (Informed Plea Bargains and Immigration) with Peter Edelmann
R v. Wong is a 2018 Supreme Court of Canada decision in which the Supreme Court of Canada had to determine whether a person could withdraw a guilty plea if they they did not know that their pleading guilty would lead to deportation. Peter Edelmann and Erica Olmstead are lawyers at Edelmann & Co. They represented the accused at the Supreme Court. Lobat Sadrehashemi represented one of the invervenors, the Canadian Association of Refugee Lawyers. 2:00 – The facts of the case. Mr. Wong pleads guilty to trafficking cocaine. He learns afterwards that this will lead to his deportation. He did not know this when he pled. Can he reverse his plea? 4:29 – How does a guilty plea work? Is it like in the movies? 7:40 – What was the judicial history of this case? 8:50 – What was the perspective of the Canadian Association of Refugee Lawyers regarding whether previously unknown immigration consequences should result in a person being able to set aside their guilty plea? 14:00 – When Peter, Erika and Lobatt talk about whether people should know about the immigration consequences of a guilty plea, what does “immigration consequences” mean? How did the court rule? 19:00 … Read More
Law Cans Episode 5 – West Fraser Mills Ltd. v. British Columbia (Standard of Review) with Robert Danay
West Fraser Mills Ltd. v. British Columbia (Workers’ Compensation Appeal Tribunal)is a 2018 Supreme Court of Canada decision in which the Supreme Court had to determine whether it should overturn the WCAT’s decision to expand the duty of employers to ensure that their operations are planned and conducted in accordance with safe work practices to owners. The case provides a useful context to explore the topic of “standard of review,” which is extremely divisive in Canadian jurisprudence. Robert Danay is a lawyer with Canada’s Department of Justice who has a passion for this topic, and has researched every Supreme Court of Canada decision on the issue going back twenty years. He can be found on Twitter at @RobertDanay. 3:10 – An overview of the facts. 6:00 – What got Robert Denay into administrative law and an interest in the “standard of review.” 10:00 – What is an administrative tribunal? 11:30 – What is judicial review? 12:10 – What is standard of review? 16:50 – In the reasonableness standard, who determines what is reasonable? 18:10 – What is the trend in standard of review jurisprudence in terms of the amount of deference that should be shown to administrative tribunals? 22:30 – … Read More
Is It Legal that the Customs Officer Searched my Phone?
One of the most frequent complaints that clients voice to us about Canada’s immigration system is the way that they view themselves as being treated at customs. Canada Border Services Agency (“CBSA”) officers routinely search individuals’ cellular phones, laptops, and in some cases even make them log onto Facebook. Not surprisingly, these poor travellers wind up asking themselves “how can this be legal in Canada?” The short answer is “because the courts have okayed it.”