The issue of whether a foreign national needs a work permit is often confusing. In January 2012, I wrote the following article for The Canadian Immigrant.
Do I Require a Work Permit
In October, the Vancouver Sun ran a story about an employer who was convicted of misrepresentation. The individual had told his employees to falsely tell border officials that the employees were enteringCanadafor pleasure, as opposed to working briefly at a festival in Whistler. Presumably the employer’s objective in having his employees say this was to avoid having to apply for work permits.
There is no question that lying to border officials constitutes misrepresentation. What is ironic about the employer’s situation is that from what I could tell (based on the Vancouver Sun article) his employees could have been honest about their intentions to work at the festival and still not required work permits.
The reason is simple: Canada’s immigration laws are clear that not all work requires a work permit.
What is Work?
Before getting into examples of work that do not require a work permit, it is necessary to review what work does.
The concept of work for immigration purposes is broader than many people realize. “Work” is an activity for which wages are paid or commission is earned, or that competes directly with activities of Canadian citizens or permanent residents in the Canadian labour market.
The second part of the definition is extremely important, because it implies that unpaid work can still count as work requiring a work permit.
Examples of work requiring a work permit thus include foreign technicians enteringCanadato repair equipment, self-employment, or volunteer employment undertaken for the purpose of obtaining work experience.
What Work Doesn’t Require a Work Permit
The general rule is that individuals entering Canada to work require a work permit. There are, however, important exceptions to this.
The first, and most common exception, is people who enterCanadaas business visitors. The criteria to be a business visitor is that 1) there must be no intent to enter the Canadian labour market, 2) the activity of the foreign worker must be international in scope, and 3) the primary source of the worker’s remuneration, place of employment, and accrual of profits must be located outside of Canada.
The business visitor exception would likely have applied to the employer who told his employees to lie about their participation in the festival at Whistler. I believe this in part because we had clients who attended the same festival and who told the Canada Border Services Agency that they intended to attend the conference as business visitors. They were admitted toCanadawithout having to apply for work permits.
Citizenship and Immigration Canada’s Temporary Foreign Worker Manual also states other types of work that specifically do not require a work permit. These include military personnel, guest artists, persons performing at private events, artists working on a show piece, film producers, guest speakers, media crews, convention organizers, and many other specific occupations.
Determining whether or not an individual requires a work permit is very important for employers that will be sending employees to work temporarily inCanada. If a work permit is required, then the employer will of course have to ensure that his/her employees apply for work permits. If a work permit is not required, then there is no need to do so. And, in either case, there is especially no need to tell employees to lie about why they are entering Canada.
What is Work?
As noted above, “work” is defined in Canadian immigration regulations as an activity for which wages are paid or commission is earned, or that competes directly with activities of Canadian citizens or permanent residents in the Canadian labour market. Wages or commissions includes salary or wages paid by an employer to an employee, remuneration or commission received for fulfilling a service contract, or any other situation where a foreign national receives payment for performing a service. In determining whether an activity competes directly with Canadians, officers generally consider whether the foreign worker will be doing an activity that a Canadian or permanent resident should really have an opportunity to do, and whether they will be engaging in a business activity that is competitive in the marketplace?
The Citizenship and Immigration Canada (“CIC“) website states that examples of “work” include, but are not limited to:
- a foreign technician coming to repair a machine, or otherwise fulfil a contract, even when they will not be paid directly by the Canadian company for whom they are doing the work;
- self-employment, which could constitute a competitive economic activity such as opening a dry- cleaning shop or fast-food franchise. (A self-employed person may also be considered to be working if they receive a commission or payment for services);
- unpaid employment undertaken for the purpose of obtaining work experience, such as an internship or practicum normally done by a student.
Examples of activities which are not considered to be “work” include:
- An activity which does not really ‘take away’ from opportunities for Canadians or permanent residents to gain employment or experience in the workplace is not “work” for the purposes of the definition.
- Activities for which a person would not normally be remunerated or which would not compete directly with Canadian citizens or Permanent Residents in the Canadian labour market and which would normally be part-time or incidental to the reason that the person is in Canada including, but are limited to;
- volunteer work for which a person would not normally be remunerated, such as sitting on the board of a charity or religious institution; being a ‘big brother’ or ‘big sister’ to a child; being on the telephone line at a rape crisis centre. (Normally this activity would be part time and incidental to the main reason that a person is in Canada);
- unremunerated help by a friend or family member during a visit, such as a mother assisting a daughter with childcare, or an uncle helping his nephew build his own cottage;
- long distance (by telephone or internet) work done by a temporary resident whose employer is outside Canada and who is remunerated from outside Canada; and
- self-employment where the work to be done would have no real impact on the labour market, nor really provide an opportunity for Canadians. Examples include a U.S. farmer crossing the border to work on fields that he owns, or a miner coming to work on his own claim.
Interestingly enough, CIC appears to be providing its officers with a more narrow definition of what constitutes work than what many may have thought, as shown in the reproduced training guide obtained through an Access to Information Act result. (It goes without saying that this training guide should not be seen as legal advice, or relied on.)