In Gabriel v. Canada (Citizenship and Immigration), the officer stated: Unfortunately, the regulations are silent regarding medical conditions of dependent children and determining their eligibility as dependents. Since there is no mention of [ ] medical condition exceptions Michael is not considered a dependent. While I empathize with Michael and his mother I am not satisfied that an exception should be made in this case. The decision to remove Michael from the application stands. The Federal Court noted that this amounted to fettering discretion, stating that: In my view the Decision shows that the Officer believed that, because the Regulations did not mention the possibility of an exception from the requirement for continuous study for students who became ill, she could not give Michael the benefit of such an exception and include him in Rose’s application for permanent residence as a dependent child notwithstanding the Absence.
Parent & Grandparent Sponsorship Program to be a Lottery in 2017
On December 14, 2016 the Government of Canada announced that it would be changing the application process in Immigration, Refugees and Citizenship Canada’s (“IRCC“) Parent & Grandparent Sponsorship Program (the “PGP“). For the past several years IRCC’s PGP has been capped at between 5,000 and 10,000 applicants. Applications were treated on a first-come, first-served basis. The PGP would typically open in early January, and the cap would be reached in under 48 hours. This caused most applicants to scramble to submit applications early in the new year. The process in 2017 will more resemble a lottery system. Between January 3 and February 2, 2017, Canadian citizens and permanent residents who want to apply as sponsors must first complete an online form on the IRCC website indicating their intention to IRCC that they wish to sponsor their parents and/or grandparents for immigration. The online form will be available for 30 days, from noon Eastern Standard Time (EST) on January 3, 2017, to noon EST on February 2, 2017. The form will ask basic questions about the sponsor, including biographical and contact information. Once the information is successfully submitted through IRCC’s online form, the individual will get a confirmation number. At the end … Read More
Four Year Cap on Temporary Foreign Workers
Please note that on December 13, 2016, the Government of Canada abolished the 4 year cap on foreign workers. On April 1, 2011, Citizenship and Immigration Canada introduced a four-year cap on the maximum allowable cumulative duration that a Temporary Foreign Worker (“TFW”) can work in Canada. Generally, once a foreign national has accumulated four years of work, he or she will be ineligible to work in Canada again until a period of four years has elapsed. What Do Employers Need to Know Before hiring a foreign worker, an employer should know the total time that the foreign worker has worked in Canada. It would be unfortunate and costly to offer someone a job only to then discover that the person can either only work for a limited period, or not at all. Example: Since April 1, 2011, a TFW has accumulated three years of work in Canada, and is now applying for a two-year work permit in an occupation that is not listed in the ‘exceptions’. The work permit would only be issued for one year. All work performed in Canada since April 1, 2011 — regardless of whether or not it was authorized by a work permit or exempt … Read More
Borderlines Episode 10 – Canadian National Security Law, Bill C-51 and Trudeau’s Reforms, with Professor Kent Roach
This episode contains an overview of the history of national security law in Canada, starting with the MacDonald Commission and the October Crisis of 1970, the formation of the Canadian Security and Intelligence Service, the Air India bombing, the Arar Inquiry, 9/11, and Bill C-51. We also discuss the roles of CSIS, the Communication Security Establishment, the Royal Canadian Mounted Police, and the Canada Border Services Agency, in administering Canadian national security legislation. Finally, Professor Roach provides an in depth analysis of several controversial elements of the previous Conservative Government of Canada’s Bill C-51, and the current Liberal Government of Canada’s response under Prime Minister Trudeau. Kent Roach is a Professor of Law and the Prichard-Wilson Chair of Law and Public Policy at the University of Toronto. He is a Member of the Order of Canada and is considered to be one of the foremost experts on national security legislation in Canada. Kent begins by providing an overview of national security law in Canada, starting with the MacDonald Commission and the October Crisis of 1970, the formation of the Canadian Security and Intelligence Service, the Air India bombing, the Arar Inquiry, 9/11, and Bill C-51. He then summarises the roles of … Read More
Staying Removal at Federal Court
The Federal Court of Canada can provide interlocutory stays, including staying removal. There is a three-stage test to be applied when considering an application for an interlocutory injunction. A court must determine that there is a serious issue or question to be tried, that the applicant would suffer irreparable harm if the injunction were to be refused, and that the balance of convenience (assessed by examining which of the parties will suffer the greater harm from granting or refusing the injunction) rests with the applicant. As well, it is important to note that a stay of removal is an equitable remedy that is typically only available to an individual who has not committed an inequity. Irreparable Harm The Supreme Court of Canada describes ‘irreparable harm’ as follow: “Irreparable” refers to the nature of the harm suffered rather than its magnitude. It is harm which either cannot be quantified in monetary terms or which cannot be cured, usually because one party cannot collect damages from the other. In other words, harm which can be avoided, or if unavoidable can be cured, is not irreparable harm. Irreparable harm is often the deciding factor in an interlocutory motion. In British Columbia Civil Liberties Association v. Canada (Citizenship and Immigration), for example, … Read More
Procedural Fairness in LMIA Applications
Procedural fairness in Labour Market Impact Assessment (“LMIA“) applications is relatively low. In Frankie’s Burgers, the first reported Federal Court decision on the matter, the Court stated that (citations removed): The requirements of procedural fairness will vary according to the specific context of each case. In the context of applications by employers for [Labour Market Impact Assessments], a consideration of the relevant factors that should be assessed in determining those requirements suggests that those requirements are relatively low. This is because, (i) the structure of the [LMIA] assessment process is far from judicial in nature, (ii) unsuccessful applicants can simply submit another application, and (iii) refusals of [LMIA] requests do not have a substantial adverse impact on employers, in the sense of carrying “grave,” “permanent,” or “profound” consequences. However, as noted in the Kuzol decision, while the duty of procedural fairness in a LMIA application may be at the low end of the spectrum, it is not non-existent. Extrinsic Evidence If an officer with the Department of Economic and Social Development (“ESDC“) relies on extrinsic evidence in reaching a decision, then there is a duty to disclose that evidence to the employer prior to the decision being made. Extrinsic evidence does not include information that … Read More
Borderlines Podcast Episode 9 – The Constitutionality of Retrospective Laws, with Garth Barriere & Eric Purtzki
On the 9th podcast episode, Garth Barriere and Eric Purtzki joins Peter Edelmann and Steven Meurrens to discuss the constitutionality of laws that are retroactive or retrospective. Peter and Steven also discuss the recent election of Donald Trump as the 45th president of the United States. Garth and Eric are both criminal defence attorneys in Vancouver. Both have appeared before the Supreme Court of Canada on numerous occasions. A retrospective law is a piece of legislation that operates going forward, but looks to change the consequence for a past action. A retroactive law changes the legal consequences of what the act was in the past. It changes someone’s legal status as it was in the past. There is a presumption against both retrospectively and retroactivity in Canada, however, there is no general Charter protection against it. The Supreme Court of Canada in R. v. K.R.J.can be found here. Garth and Eric both appeared as counsel in this case, which formed the basis for our discussion. In this case, the Supreme Court affirmed that while criminal laws should generally not operate retrospectively, an exception would be made in the case of sentencing for sexual offenders involving minors. In reading this case, and listening to the … Read More
IRCC Clarifies Non-Compliance in the International Mobility Program
It is imperative that employers hiring foreign workers in the International Mobility Program (“IMP“) understand the consequences of non-compliance. Immigration, Refugees and Citizenship Canada (“IRCC“) has finally published information on its website which summarizes how it will determine when non-compliance has occurred and what the consequences will be. Since December 1, 2015, IRCC has had the legislative authority to apply administrative tools, including warning letters, administrative monetary penalties (“AMPs“) and bans on employers accessing the IMP to certain employers where an IRCC officer has determined that an employer has breached the terms and conditions of participating in the IMP. Breaches that Occurred Before December 1, 2015 It is important to note that the AMP and the bans described below only apply to employer breaches that occurred after December 1, 2015. The penalty to an employer for unjustified breaches that occurred prior to December 1, 2015 is a two-year ban on that employer from being able to hire foreign workers under the IMP. However, while the consequences to an employer for being found non-compliant changed on December 1, 2015, the way in which IRCC assesses whether non-compliance has occurred remains substantially the same. The Administrative Monetary Penalty Regime Under IRCC’s AMP regime, employer non-compliance is divided … Read More
Express Entry’s Comprehensive Ranking System to Change on November 19, 2016
On November 10, 2016, the Government of Canada announced that it would be changing how points are calculated in Immigration, Refugees and Citizenship Canada’s (“IRCC“) Express Entry program. The most significant change is that having a qualifying offer of arranged employment that is supported by a Labour Market Impact Assessment (“LMIA“) will no longer guarantee an Invitation to Apply (an “ITA“) for permanent residency. However, foreign nationals who completed post-secondary education in Canada, as well as certain closed work permit holders in the International Mobility Program, will benefit. The changes will take effect on effect on November 19, 2016. Overview of the Current Comprehensive Ranking system Under Express Entry, a potential applicant to one of Canada’s three main economic immigration programs must complete an online Express Entry profile where they provide information about their skills, work experience, language ability, education, and other details. That individual is then entered into a pool of Express Entry candidates where they are given a score out of 1200 using a Comprehensive Ranking System (“CRS“) based on the information that they provided when creating their Express Entry profile. Under IRCC’s current CRS, an individual gets 600 points if they have an offer of full-time employment that … Read More
Free trade agreements help those who want to work in Canada, but the Trump presidency could impact Americans
On Oct. 30, 2016, Canada and the European Union signed the Comprehensive Free Trade Agreement (CETA), which, amongst other things, will make it easier for European Union citizens to work in Canada without their employers first needing to obtain labour market impact assessments (LMIA). CETA is only the latest free trade agreement that Canada has signed. One of the first steps that a foreign national who is interested in working in Canada should do is determine whether their home country has signed a free trade agreement with Canada. If so, they should check if the agreement encompasses their specific area of employment. LMIA vs. free trade agreements The main benefit of a free trade agreement encompassing one’s employment is that the person’s potential Canadian employer does not need to first obtain a positive or neutral LMIA prior to the foreign worker being able to obtain a Canadian work permit. LMIAs can be a very cumbersome process. They generally require that an employer conduct domestic recruitment, meet prevailing wage requirements, complete numerous application forms, enter into a transition plan, and pay a $1,000 per foreign worker application fee. For many employers, obtaining LMIAs is simply too great an obstacle to employing … Read More