• Borderlines Podcast Episode 40 – Family Law Concepts That Immigrants and their Sponsors Should Understand, with Ari Wormelli

    Last Updated on October 25, 2020 by Steven Meurrens

    In this episode we provide an overview of family law issues that immigrants and their Canadian sponsors should be aware of, inlcuding the recognition of foreign marriages, how divorce works, threatening to have an ex-spouse deported and the difference between common-law and marriage and getting a marriage anulled. Ari Wormelli practices family law with YLAW Group.
  • Borderlines Podcast Episode 39 – Immigration Detention Hearings after Brown v. Canada, with Aris Daghighian

    Last Updated on October 25, 2020 by Steven Meurrens

    Aris Daghighian is a senior associate with Green and Spiegel LLP in Toronto. He represented the Canadian Association of Refugee Lawyers as intervenors in Brown v. Canada, 2020 FCA 130. In this episode we discuss the issues raised in the case, including how immigration detention works in Canada, what the disclosure obligations should be on the government in an immigration detention proceeding and whether there should be a maximum time that someone can be held in immigration detention.
  • Borderlines Podcast Episode 27 – Civil Forfeiture in Canada, with Bibhas Vaze

    Last Updated on October 24, 2020 by Steven Meurrens

    Civil forfeiture is a process in which the government seizes assets from persons suspected of involvement with crime without necessarily charging the owners with wrongdoing. Did you know that in British Columbia the government can seize and forfeit your car if you speed? Or that police can “seize first ask later” for property that is less than $75,000? This was a fascinating look at an area of law that receives little scrutiny, especially in how it can relate to immigration.

    Bibhas Vaze is a criminal defence lawyer in Vancouver.

     

    4:45 – An overview of New Can and how it relates to civil forfeiture.

    5:30 – What is civil forfeiture?

    13:15 – Who has the onus of proving there is a tracing of property to unlawful activity?

    16:50 – Can the government seize property that is partially the proceed of crime or that was used to commit unlawful activity?

    17:10 – What is unlawful activity in the civil forfeiture context?

    19:20 – What is the size of British Columbia’s Civil Forfeiture Office? How much property has it seized since its inception?

    20:30 – Do all civil forfeiture cases have to go to trial?

    25:10 – When is the property actually seized?

    29:00 – What level of connection between the unlawful activity and the property is necessary in order for property to be seized?

    32:20 – What is constitutional creep, and how does it play into civil forfeiture?

    37:50 – If someone is ordered by a criminal court to pay a fine or restitution, can they they be subject to civil forfeiture, essentially paying the fine twice?

    46:00 – How far back can the government go? Is there a limitation period from when the unlawful activity was committed to when the property can be seized?

    1:01 – An overview of the recent United States Supreme Court decision to strike down many aspects of their civil forfeiture regime. Could it happen in Canada?

  • Borderlines Podcast Episode 18 – The Deportation Consequences of Criminal Records

    Last Updated on October 24, 2020 by Steven Meurrens

    The Supreme Court of Canada in October issued its decision in R v. Tran, a case which Peter litigated. Deanna, Peter and Steve discuss the issues that the Supreme Court addressed in this landmark decision, including whether conditional sentences are terms of imprisonment for the purposes of deportation and retrospectivity in law. This was the first of two Supreme Court cases that Peter arguedin Ottawa this year. While he was in Ottawa for the second case, he joined Michael Spratt and Emilie Taman, the creators of the Docket, a fantastic podcast about criminal law in Canada. Peter, Emilie and Michael discussed all sorts of issues regarding the intersection of immigration and criminal law, and Peter even explained how he got into practicing immigration law.  
  • 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 October 25th, 2020

    Last Updated on October 25, 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.