• Ability to Perform the Work Sought

    Last Updated on October 20, 2020 by Steven Meurrens

    Regulation 200(3)(a) provides that an officer shall not issue a work permit to a foreign national if there are reasonable grounds to believe that the foreign national is unable to perform the work sought. Procedural Fairness In jurisprudence on applications for skilled worker class permits it has also been held that if the officer has concerns about the veracity of documents, procedural fairness demands that the officer make further inquires.  However, an officer is generally not under a duty to inform a skilled worker class permit applicant about his concerns when they arise directly from the requirements of the legislation or regulations.  As the Federal Court of Canada noted in Li v. Canada (Citizenship and Immigration), 2012 FC 484, the same applies in work permit applications. As the court held in Kumar v. Canada (Citizenship and Immigration), 2020 FC 935, because of the legislative requirement that officers not issue work permits to foreign nationals if they believe that the foreign national is unable to perform the work sought, then even if Immigration, Refugees and Citizenship Canada’s online checklist does not specifically require documents such as diplomas, academic transcripts, or certificates of English proficiency, an officer can refuse an application if they are not provided when requested by an officer. On the specific issue of language proficiency, officers can expect more than an English language application and cover letter to verify an applicant’s ability to speak and write in English, where there are reasonable grounds to believe that such language skills are necessary to perform the work sought.
  • Top Source Countries of Immigration to Canada

    Last Updated on October 20, 2020 by Steven Meurrens

    One of the interesting trends of Canadian immigration during the past five years has been the explosion of India as a source country, the flat-lining of China, and the decline of the Philippines. There has also been a steady increase in immigrants from Brazil, Eritrea, the USA and Nigeria.
  • LMIAs – Who is the Employer

    Last Updated on October 18, 2020 by Steven Meurrens

    There would be perhaps few things as frustrating for the potential employers of foreign workers than to go through the Labour Market Impact Assessment process only to learn that they were not considered to be an employer by the Department of Employment and Social Development Canada. According to the Temporary Foreign Worker Program manual, an employer is an entity (e.g. person, business, corporation or organization) that makes an offer of employment to one or more foreign nationals who provide labour in return for compensation for a specified period of time. The employer is generally the entity that hires, controls working conditions and remunerates the foreign national. The Manual further states:

    Entities Considered the Employer of a Foreign National under the TFW Program:

    Canadian-Based Entity

    A person, business, corporation or organization based in Canada that makes an offer of employment to one or more foreign nationals.

    Foreign-Based Entity

    A person, business, corporation or organization that is not based in Canada that makes an offer of employment to one or more foreign nationals to work in Canada. For identification purposes, it is strongly recommended that the foreign-based employer obtain a Canadian business number to facilitate the TFW Program’s assessment of their genuineness.

    Group of Employers

    In cases where two or more entities are determined to share employer responsibilities by the Department, a group of employers may make an offer of employment to a foreign national.

    • All parties handling employer responsibilities relating to the employment of a foreign national (via an LMIA) are considered to be part of a group of employers for the purpose of the TFW Program.

    • The Department determines who is able to apply under a Group of Employers, including whether employers should be included or excluded based on the relation to the foreign worker being offered a position.

    The roles and responsibilities of each party must be clear and defined at the time of application, including whether employment responsibilities are occurring sequentially or simultaneously (including a defined period where the foreign national would be reporting to a specific entity).

    • All parties may be held jointly responsible in cases of non-compliance.

    Independent Contractors

    For the purpose of the TFW Program, in cases where a self-employed foreign national’s services have been contracted by a Canadian company, and the self-employed individual is offering their services exclusively to that firm and is required to perform work within Canada, the contract should be evaluated as the job offer. The contracting firm is considered to be the employer.

    Self-employed – Operation of a business in Canada (owner-operator)

    For the purpose of the TFW Program, in cases where a self-employed individual wishes to enter Canada to establish or purchase a business and be involved in its day-to-day operations, the business plan or contract to purchase shares in a business should be evaluated as the job offer Ownership of shares does not guarantee that a foreign national would qualify as an owner operator. The term owner-operator generally refers to small business owners and does not refer to individuals who receive shares as part of a compensation package. To qualify as an owner-operator the foreign national should be able to establish a level of controlling interest in the business (e.g. a majority or plurality of shares, is not able to be fired) and be actively involved in its operation. Foreign nationals who do not meet this definition would not qualify for the Program exemptions under owner-operator.

    Entitities Not Considered the Employer of a Foreign National under the TFW Program

    Canadian Company contracting services to a foreign firm

    A Canadian company that is engaged in business (e.g. contracting services or partners) with a foreign based company that employs a foreign national is not the employer and as such should not submit the LMIA application on behalf of the foreign-based company.

    Parent Company

    In situations where an employer is legally owned by a parent company, but the parent company does not have day-to-day control over business operations that the TFW would be involved in, the parent company would not be considered the employer.

    Third-party Representatives

    Manual Officer

  • LMIAs and Labour Disputes

    Last Updated on August 18, 2020 by Steven Meurrens

    Section 203(3)(f) of the Immigration and Refugee Protection Regulations states an assessment provided by the Department of Employment and Social Development (“ESDC”) with respect to the whether the entry of a foreign national is unlikely to have a positive or neutral effect on the labour market in Canada shall be based, in part, on whether the employment of the foreign national is likely to adversely affect the settlement of any labour dispute in progress of the employment of any person involved in the dispute. ESDC policy is short on this matter, and states that employers should not use the Temporary Foreign Worker Program to circumvent a legal work stoppage or to influence the outcome of a labour dispute. A labour dispute is defined as occuring when the parties to a collective agreement have reached an impasse in their efforts to enter into, renew or revise a collective agreement and require the intervention of a third party (e.g., government labour officials) to resolve the differences. It does not include all grievances between a union and employer. Labour disputes, which often arise during collective agreement/contract negotiation between an employer and a union, may include: work stoppage, strikes, refusal to work, picketing, lockouts, etc. They also arise in situations that are in reaction to working to conditions dictated by legislation such as refusal to perform duties when employees feel that their security might be jeopardized, or different views on issues related to labour standards such as overtime, wages and holidays.

    Labour Dispute

  • Protected: North Vancouver Playgrounds

    Last updated on August 17th, 2020

    Last Updated on August 17, 2020 by Steven Meurrens

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  • Borderlines Podcast #38 – R v. Zora – The Supreme Court of Canada Addresses Breach of Bail Conditions, with Sarah Runyon

    Last Updated on July 29, 2020 by Steven Meurrens

    R v. Zora is a 2020 Supreme Court of Canada decision involving the criminal offence of breaching bail conditions. It is relevant in the Canadian immigration context as individuals who are convicted of this crime in Canada, or who are convicted of or commit an equivalent offence abroad, are inadmissible to the country. Steven and Deanna are joined by Sarah Runyon, who was counsel for Mr. Zora at the Supreme Court. We discuss how bail works in Canada, the offence of breach of bail conditions, and the implications of the Supreme Court decision.  
  • Borderlines Podcast #37 – The Closure of the Canada – US Border and the Supreme Court’s DACA Decision, with Andrew Hayes

    Last Updated on July 29, 2020 by Steven Meurrens

    Andrew Hayes is a US immigration lawyer who practices in Vancouver. His website is www.usborderlaw.com Andrew, Deanna and Steven discuss the closure of the Canada – US border during COVID-19 and how the agreement has been implemented in the two policies, recent Executive Orders regarding immigration, and the United States Supreme Court decision in Department of Homeland Security et al v. Regents of the University of California et al.
    2:00 -The closure of the Canada – US border 25:00 – Recent Executive Orders pertaining to immigration in the United States 45:00 – The DACA decision
  • Borderlines Podcast #36 – The Canadian Immigration Consequences of COVID19

    Last Updated on July 29, 2020 by Steven Meurrens

    Deanna Okun-Nachoff and Steven Meurrens discuss how COVID19 has caused havoc to Canada’s immigration system, including border closures, operational slowdowns and the suspension of litigation proceedings.
  • Borderlines Podcast #35 – The Implications of the Supreme Court of Canada Decision in Vavilov

    Last Updated on July 29, 2020 by Steven Meurrens

    Vavilov v. Canada (Citizenship and Immigration)is a 2019 Supreme Court of Canada decision in which the Supreme Court of Canada outlined a new framework for the standard of review in Canadian administrative law.
  • COVID-19 and Students

    Last Updated on July 20, 2020 by Steven Meurrens

    As the summer nears to an end, students will be preparing for the start of the school year.  They will be double checking that they have the most recent version of Zoom on their computers, and possibly upgrading their home internet.  COVID-19 has impacted everyone, and international students have especially been left wondering what their academic future in Canada holds. Immigration, Refugees and Citizenship Canada has in response to COVID-19 implemented several public policies that international students should know.  Most of them can be found on the IRCC website here: Prospective and current international students should check the above webpagse daily.  The date that they were last modified can be found at the bottom.  Unfortunately, IRCC updates its COVID-19 policies through stealth editing, so it may be advisable to save the webpage to PDF to track changes. Here are some of the key measures. Restrictions on Travelling to Canada As of July 15, 2020 international students who have a valid study permit, or were approved for a study permit on or before March 18, 2020, can travel to Canada for a non-discretionary purpose. In determining whether a student’s travel to Canada is non-discretionary, the Canada Border Services Agency will consider whether they are established residing and studying in Canada, whether they are expected to begin studying upon arrival, whether their presence in Canada is necessary for their continued participation in their program, whether pursuing online studies is not an option for their school or from their home country, and whether the semester has been cancelled or delayed. Those who are travelling by air need to pass a health check conducted by an airline before they will be allowed to board their flight.  Anyone showing signs of COVID-19 will not be allowed to board their flight.   After arriving they will need to quarantine for fourteen days.  During this fourteen day period, they must remain in their place of residence, and arrange for items, like groceries, to be delivered to them. Online Courses IRCC has modified its Post-Graduate Work Permit Program so that those who are taking online-only courses remain eligible for a work permit upon graduation. As well, those who have study permits, or have been approved for study permits, but who cannot travel to Canada, will be eligible for a post-graduate work permit. In the above situations, students may begin their classes while outside of Canada and complete up to fifty percent of their program while outside of Canada due to an inability to travel, and still be eligible for a work permit. As well, students who complete the fall 2020 semester from outside of Canada will not have this time deducted from the duration of their post-graduate work permit. Working While in School IRCC has implemented a public policy to allow full-time students  to work off-campus if COVID-19 has resulted in them becoming part-time students.  Such students can work up to 20 hours per week during the academic session, and full-time during scheduled breaks in the academic year. Students are allowed to work more than 20 hours if they are a study permit holder, are eligible to work off campus, and are providing an essential service.  Public Safety Canada has provided guidance on what constitutes essential services, and it pertains to specific services in ten areas of critical infrastructure, including Energy and Utilities, Information and Communication Technologies, Finance, Health, Food, Water, Transportation, Safety, Government and Manufacturing. Processing Perhaps the biggest question that most study permit applicants have is when will their applications be processed.  This, unfortunately, remains uncertain. On July 14, 2020, Marco E. L. Mendicino, the Minister of Immigration, Refugees and Citizenship Canada announced that IRCC would be providing priority study-permit processing for those who have applied online.  Meanwhile, on July 20, 2020, IRCC announced that there are no measures in place to provide for expedited processing of study permit applications. The Department is also looking into turning the study permit application process into a 2-stage approval process that will provide pre-approvals to students so that they can start their programs abroad with the confidence that their study permit applications will ultimately be approved. However,  as per IRCC, it is important for prospective students to note that commencing their studies online from abroad following approval-in-principle of a study permit application is not a guarantee that they will receive a full approval of their study permit application, or be authorized to pursue their studies in Canada. As with almost everything during COVID-19, the result is uncertainty. Hopefully IRCC’s efforts to present welcoming and facilitative messaging and policies translates into flexibility at the individual officer level.