Attributed to mjb84 on Flickr.

Regulation 186(s) of Canada’s Immigration and Refugee Protection Regulations (the “Regulations“) regulates when crew members are permitted to work in Canada without first obtaining a work permit.  The Regulations state:

R186(s). A foreign national may work in Canada without a work permit as a member of a crew who is employed by a foreign company aboard a means of transportation that

(i) is foreign-owned and not registered in Canada, and

(ii) is engaged primarily in international transportation

Immigration, Refugees and Citizenship Canada (“IRCC“) has published helpful guidance as to how this Regulation is to be interpreted (the “Guidelines“).

What is a Member of a Crew

As per the Guidelines, on a cruise ship, crew members include:

  • licensed officers: master, first officer, chief officer or chief mate, first engineer or chief engineer, and subordinate officers and engineers;
  • non-licensed crew: ordinary seamen, able-bodied seamen, bosun (deck crew foreman), engine- room crew (oilers and fitters), and kitchen and mess-room staff (cooks, stewards and messmen); and
  • the hotel manager, cruise director, purser, medical staff, managers and staff of the ship’s bars, restaurants, boutiques and casino, as well as house-cleaning staff and entertainers.

Crew members do not include:

  • supernumeraries: spouses, children and other dependants of crew members;
  • foreign contractors and shipping company technicians: foreign nationals temporarily assigned to a vessel for the sole purpose of making repairs;
  • shipping company superintendents, including persons referred to as supercargo, superintendent engineers, or port captains;
  • employees or executives of a marine transportation company who travel aboard or who visit ships to monitor or supervise operations such as maintenance and repairs, preparation of cargo holds, preparation for inspection, and the loading or unloading of cargo; and
  • insurance company representatives who travel on vessels to familiarize themselves with shipboard operations on behalf of ship-owners’ insurers.

“Engaged Primarily in International Transportation”

IRCC’s Guidelines state in order to determine whether a means of transportation is “engaged primarily in international transportation” that an officer should consider whether the transportation falls under the definition of “coasting trade” in Canada’s Coasting Trade Act.  If the transportation does fall under the definition of “coasting trade” in the Coasting Trade Act, then a work permit will be required.

The Coasting Trade Act defines “coasting trade” as (definition simplified for ease of reading):

(a) the carriage of goods by ship from one place in Canada to any other place in Canada, either directly or by way of a place outside Canada;

(b) subject to paragraph (c), the carriage of passengers by ship from any place in Canada situated on a lake or river to the same place, or to any other place in Canada, either directly or by way of a place outside Canada;

(c) the carriage of passengers by ship from any place situated on the St. Lawrence River northeast of the Saint Lambert lock or on the Fraser River west of the Mission Bridge

(i) to the same place, without any call at any port outside Canada, other than one or more technical or emergency calls, or

(ii) to any other place in Canada, other than as an in-transit call, either directly or by way of a place outside Canada,

(d) the carriage of passengers by ship from any place in Canada other than from a place to which paragraph (b) or (c) applies

(i) to the same place, without any call at any port outside Canada, other than one or more technical or emergency calls, or

(ii) to any other place in Canada, other than as an in-transit call, either directly or by way of a place outside Canada,

(e) the carriage of passengers by ship

(i) from any place in Canada to any place above the continental shelf of Canada,

(ii) from any place above the continental shelf of Canada to any place in Canada, or

(iii) from any place above the continental shelf of Canada to the same place or to any other place above the continental shelf of Canada;

where the carriage of the passengers is in relation to the exploration, exploitation or transportation of the mineral or non-living natural resources of the continental shelf of Canada, and

(f) the engaging, by ship, in any other marine activity of a commercial nature in Canadian waters and, with respect to waters above the continental shelf of Canada, in such other marine activities of a commercial nature that are in relation to the exploration, exploitation or transportation of the mineral or non-living natural resources of the continental shelf of Canada; (cabotage)

Given how complicated the definition of coastal trading is, the following should provide a useful summary of when crew members do and don’t need work permits.
Foreign National Crew Will Need a Work Permit When

A work permit may be required if a cruise ship embarks passengers at a Canadian port and disembarks any of these passengers permanently at another Canadian port. For example, if a cruise ship embarks all passengers in Montreal, disembarks some passengers in Charlottetown, and continues to New York where the remaining passengers disembark, then foreign crew members will require a work permit.

Foreign crew members will also typically require a work permit if the ship embarks passengers at one Canadian port and then ends the cruise and disembarks passengers at another Canadian port. For example, if passengers embark in Victoria, make a stop in Anchorage, Alaska, and end their cruise in Vancouver, then the foreign national crew will likely need require a work permit.

Foreign National Crew May Be Exempt When

Foreign crew will typically be exempt from the requirement to obtain a work permit when a cruise ship embarks and disembarks at the same destination within Canada, even if it makes stops in foreign jurisdictions. For example, if a cruise ship embarks passengers in Halifax, makes a stop in Boston, and then returns to Halifax then a work permit may not be required.  If this seems odd given that the start and end destinations are in Canada, it is simply because of how the Coastal Trading Act defines coastal trading.

Foreign workers may also be exempted if a cruise ship starts at a Canadian port of call, and ends its itinerary at a foreign port of call, so long as passengers do not disembark elsewhere in Canada. For example, if a cruise ship embarks in Vancouver, and disembarks in Portland, then foreign crew will likely be exempt.

 

 

This is Still not the Only Test

It is important to note that the Guidelines are merely guidance to officers. While officers will generally follow them, they are permitted to take into consideration the unique circumstances of each case.