During a consultation last month, a foreign worker and an employer told me that the employer was interested in obtaining a Labour Market Opinion to continue employing the foreign worker. The employer, however, did not have a business license, and for various reasons refused to obtain one. The employer wanted to know whether Service Canada would still approve his Labour Market Opinion. While I did not know the answer off the top of my head, I luckily had a copy of the internal TFWP OPS/BE QUESTIONS AND ANSWERS document that I have slowly been uploading to this blog.
Please note that what I have reproduced below should not be viewed as legal advice. I obtained a copy of this internal Service Canada question and answer through an Access to Information Act request (the “ATI”). The reproduction of question and answer has not occurred with the affiliation of the Government of Canada, nor with the endorsement of the Government of Canada. (I have decided not to reproduce the names of the Service Canada officers involved.) Please e-mail me if you want a copy of the original question and answer contained in the ATI.
BACKGROUND:
The above named employer submitted a Labour Market Opinion application December 21, 201[2], seeking a “Licensed Practical Nurse”. The ER has advised that the senior living facility is set to open June 17, 2013 and have residences move in by July. The ER stated that the centre has been delayed in opening due to a construction fire; consequently the City of Regina will not issue a business license.
QUESTION/ISSUE:
Given that the ER is currently unable to obtain a business license through the City of Regina (a license that has been determined to be required by the city), is the assessing officer required to request one of the following documents in lieu of the license:
-
- Business lease
- T4 Summary
- T2 Schedule 100 & 125
- T2125
- Business contracts
- Attestation from professional
OFFICER & TL RECOMMENDATIONS:
It appears that the ER cannot pass genuineness because the city will not issue the business a BL. However, before proceeding with a refusal on genuineness, we wanted to know if policy states ER’s should be given the opportunity to provide any of the above noted documentation, including an attestation from a professional?
BE CONSULTANT RESPONSE:
QUESTION
It appears that the ER cannot pass genuineness because the city will not issue the business a BL. However, before proceeding with a refusal on genuineness, we wanted to know if policy states ER’s should be given the opportunity to provide any of the above noted documentation, including an attestation from a professional?
ANSWER:
The employer, ███████ was identified as a new employer (has never applied to the TFWP for an LMO or AEO before). Consequently, the request is subject to a Level-2 assessment of the Genuinenss factor Actively Engaged, to ensure that employment offer is from an employer that legally exists and operates a business related to the job offer made to the TFW. Although Section 3.5.4.1.2 Assessing Actively Engaged, states
“:Since not all municipalities require a business license/permit to operate, new employers may a/so submit specified Canada Revenue Agency (CRA) documentation (T4 Summary, T2 schedules 1001125, T2125), business contract(s) for work in Canada or an attestation by a lawyer, notary public or chartered accountant.n
The alternative documents may be requested when a business lisence is not required by the municipality. In the scenario described, the municipality clearly requires a business license for this type of business to operate. Specifically, the City of Regina will not provide the employer a business lisence because of the fire and construction delays.
RECOMMENDATION:
The business license is the document required to satisfy the level 2 genuineness factor actively engaged. Should the employer be unable to provide this, they are unable to demonstrate that they are currently actively engaged in the business according to the TFWP.
A Note on Genuineness
I have previously blogged on genuineness in the LMO context here, and reading that post will provide some context to the Business Expertise Consultant’s answer.