Last updated on June 11th, 2020
Last Updated on June 11, 2020 by Steven Meurrens
In both the Federal Skilled Worker Program, the Canadian Experience Class, and indeed most economic immigration programs, the government of Canada relies on Service Canada’s National Occupational Classification (“NOC“) system to determine eligibility.
In the Canadian Experience Class, for example, subsections 87.1(2)(b) and (c) of the Immigration and Refugee Protection Regulations (the “IRPR“) set out the job duties that applicants to the Canadian Experience Class must perform in order to meet the requirements of having experience in an eligible NOC.
Subsection 87.1(2)(b) provides that an applicant must have performed the “actions described in the lead statement for the occupation as set out [in the NOC]”, while subsection 87.1(2)(c) provides that an applicant also must have performed a “substantial number of the main duties of the occupation as set out in the NOC, including all of the essential duties.”
In the Federal Skilled Worker Program, meanwhile, s. 75(2)(a)-(c) of the IRPR states:
A foreign national is a skilled worker if
(a) within the 10 years before the date on which their application for a permanent resident visa is made, they have accumulated, over a continuous period, at least one year of full-time work experience, or the equivalent in part-time work, in the occupation identified by the foreign national in their application as their primary occupation, other than a restricted occupation, that is listed in Skill Type 0 Management Occupations or Skill Level A or B of the National Occupational Classificationmatrix;
(b) during that period of employment they performed the actions described in the lead statement for the occupation as set out in the occupational descriptions of the National Occupational Classification;
(c) during that period of employment they performed a substantial number of the main duties of the occupation as set out in the occupational descriptions of the National Occupational Classification, including all of the essential duties;
The issue that applicants face is determining whether their experience falls within the parameters of a given NOC.
In Benoit v. Canada (Citizenship and Immigration), 2013 FC 185, the Federal Court of Canada allowed a judicial review where an officer rejected a Canadian Experience Class application because the applicant did not perform two of the eight main duties for NOC 6211 – Retail Sales Supervisors. NOC6211 states:
The Federal Court stated:
The officer was therefore required to determine if Ms. Benoit “performed a substantial number of the main duties.” However, the officer’s decision as disclosed by the CAIPS notes is merely the following: “Duties listed in job letter do not match duties in NOC description; ordering and scheduling is done by manager with PA’s assistance.” “Ordering” and “scheduling” are no more than mere components of the main duties listed in NOC 6211. Thus, it is not clear if the officer at any point turned his or her mind to the real question, which was whether – on the whole – the duties were a substantial match.
Another case worth noting is Ye v. Canada (Citizenship and Immigration Canada), 2012 FC 652. There, an officer refused an application by a Technical Support Specialist under NOC 6221 because the officer felt that NOC 6421 was more appropriate. The officer did this not withstanding that NOC 6221 contained the following example titles “technical support specialist”, “telecommunications sales representative”, and “telecommunications salesperson.” Accordingly, the Federal Court of Canada noted that the Officer erred by failing to address the evidence before her that the Applicant’s responsibilities and work experience were described in terms of one of the example titles in the NOC 6221 category.
The 2017 decision of Kapasi v. Canada (Citizenship and Immigration), perhaps summarizes the jurisprudence on how officers are to determine whether an applicant’s employment is encompassed by a NOC. There, Madam Justice McDonald stated that:
While s.75 of the IRPR, to some extent, incorporates the NOC as the standard by which an applicant’s experience is measured, it clearly does not mandate a microscopic analysis of an applicant’s experience according to the exact terminology of the titles or duties listed in the NOC.
In this case, the lead statement for NOC 1113 provides that securities agents and investment dealers buy and sell certain financial instruments for individual investors, pension fund managers, banks, trust companies, insurance firms and other establishments. Brokers trade these instruments on behalf of investment firms and other groups. The main duties for each position generally track the lead statement. The NOC also includes a list of example titles which qualify under the NOC.
However, instead of using the NOC as a guide in his assessment of whether the Applicant qualified under s.75 of the IRPR, as required by the legislation, the Officer applied the exact wording of the non-binding NOC, measuring the Applicant’s listed titles and duties against the words of the NOC. This is unreasonable because the Officer should have considered whether the Applicant’s job titles and duties met the substantive requirements of s.75 of the IRPR, which do not incorporate the NOC in whole.
Finally, it should be noted that while there is flexibility in the number of duties that must be performed, it is essential that an applicant have performed the lead statement of a NOC. In Potla v. Canada (Citizenship and Immigration), 2020 FC 646, Justice Norris stated that the following duties in a Scotia Bank letter did not reflect the lead statement for NOC 6235, which is to sell basic deposit, investment and loan products and services to individuals and businesses:
- Champions a customer focused culture to deepen relationships and leverage broader Bank relationships, systems and knowledge.
- Processing instructions given by Agents on participations and Customers on direct deals including verification of limit available, accuracy of calculations, and disbursement/application of funds.
- Ensuring that terms and conditions of authorizations and/or loan documentation are being adhered to including pricing, term, and amount.
- Communicating effectively with various contacts including Agent Banks to resolve issues on a timely basis.
- Recognizing and bringing exceptions to policies and procedures to the attention of management for resolution when required.