Canada’s Immigration and Refugee Protection Act states that a foreign national may not work or study in Canada unless authorized to do so.

The Immigration and Refugee Protection Regulations define work as “an activity for which wages are paid or commission is earned, or that is in direct competition with the activities of Canadian citizens or permanent residents in the Canadian labour market.”

Wages and Commission

Wages 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.  It is clear that an individual who receives payment for services would be working under Canadian immigration law.

Activities that Compete Directly

The IRCC Guidelines states that for unpaid work officers must consider whether there is entry into the labour market.  The two relevant factors that officers are to assess are:

  • Will they be doing an activity that a Canadian or permanent resident should really have an opportunity to do?
  • Will they be engaging in a business activity that is competitive in the marketplace?

The IRCC Guidelines further states that the following are examples of activities that constitute work.

  • a foreign technician coming to repair a machine, or otherwise fulfill 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.

The IRCC Guidelines finally state that the following activities would not normally constitute work:

  • 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.
  • 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;
  • 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;
  • short-term educational exchanges by high school students through international arrangements, such as the Regional Joint Cooperation Commission between Atlantic Canada and the archipelago of Saint-Pierre and Miquelon.

Finally, the IRCC Guidelines state that “there may be other types of unpaid short-term work where the work is really incidental to the main reason that a person is visiting Canada and is not a competitive activity, even though non-monetary valuable consideration is received. For instance, if a tourist wishes to stay on a family farm and work part time just for room and board for a short period (i.e., one to four weeks), this person would not be considered a worker. Work on a farm that is expected to extend beyond four weeks would require a work permit.”

Jurisprudence

In Petinglay v. Canada (Public Safety and Emergency Preparedness), 2019 FC 1371, Justice Pentney ruled an Immigration and Refugee Board finding that someone engaged in unauthorized work because their actions entered the labour market would be unreasonable if the Immigration and Refugee Board did not consider the fact that an individual only helped on a few occassions, at a large store, and for which there was no evidence that Canadians were deprived an opportunity to work.

In Yu Lung v Canada (Citizenship and Immigration) (June 27, 2013), IMM-5523-12 (FC), an individual was found to have engaged in work even though she only helped customers for a brief time while her sister was away from the store to care for her sick child.  Justice André Scott concluded that it was open to the ID to determine that the length of time a person assisted with the business was not an essential element of the definition, and that the strict reading of the definition was justified in the circumstances.

In Georgas v Canada (Employment and Immigration), [1979] 1 FC 349 (CA) it was found that the family relationship between the parties was not relevant to a determination of whether the activity constituted work. The individual in that case was working around five hours per day.