9. Immigration and Employment Law Flashcards
Who is legally permitted to work in Canada?
Canadian Citizens and Permanent Residents
“Every citizen of Canada and every person who has the status of a permanent resident of Canada has the right […] to pursue the gaining of a livelihood in any province.”
(Section 6(2)(b) of the Constitution Act, 1982)
Foreign Nationals
“A foreign national may not work […] in Canada unless authorized to do so under this Act.”
(Section 30(1) of the Immigration and Refugee Protection Act)
Discuss work without a permit
There are specific circumstances under which a foreign nationals may work in Canada without a permit. However, they must maintain valid temporary resident status.
(See sections 186 and 187 of the Immigration and Refugee Protection Regulations (and public policy))
Google - From s. 186: A foreign national may work in Canada without a work permit
(a) as a business visitor to Canada within the meaning of section 187;
(b) as a foreign representative, if they are properly accredited by the Department of Foreign Affairs and International Trade and are in Canada to carry out official duties as a diplomatic agent, consular officer, representative or official of a country other than Canada, of the United Nations or any of its agencies or of any international organization of which Canada is a member;
(c) if the foreign national is a family member of a foreign representative in Canada who is accredited with diplomatic status by the Department of Foreign Affairs and International Trade and that Department has stated in writing that it does not object to the foreign national working in Canada;
Etc. (a to w)
Google - From s. 187(1): For the purposes of paragraph 186(a), a business visitor to Canada is a foreign national who is described in subsection (2) or who seeks to engage in international business activities in Canada without directly entering the Canadian labour market.
How is work defined?
“work means 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 labor market.”
(Section 2 of the Immigration and Refugee Protection Regulations)
IRCC Guidance: From link - examples of “work” include, but are not limited to:
- 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.
What are the types of work permits?
- Open work permit
- Employer-specific (or closed) work permit
What is an open work permit?
An open permit work allows the holder to work for any employer in Canada, including oneself (with some exceptions)
Who can apply for an open work permit?: From link - you may be eligible for an open work permit if you
- are an international student who graduated from a designated learning institution and are eligible for the Post-Graduation Work Permit Program
- are a student who’s no longer able to meet the costs of your studies (destitute student)
- have an employer-specific work permit and are being abused or at risk of being abused in relation to your job in Canada
- applied for permanent residence in Canada
- etc. (11 points)
What are the open work restrictions?
An open work permit holder may not work for an employer:
- who regularly offers striptease, erotic dance, escort services or erotic massages (protecting workers from abuse and exploitation)
- who is listed as ineligible on the list of employers who have been found non-compliant
What is an employer-specific work permit?
- An employer-specific work permit allows the holder to work according to the conditions stated on their permit
- N.B. An employer-specific work permit may not be issued for sex work or for the benefit of an employer listed as ineligible due to non-compliance
Discuss employer compliance
From canada.ca - employer compliance inspections
Employers who submitted an offer of employment for which a work permit was issued to a foreign national on or after December 31, 2013, may, under section R209.5, be inspected for compliance with the conditions set out in the IRPR. An inspection may be initiated from the first day of employment for which a work permit is issued up to a maximum of 6 years thereafter.
Inspections are administrative assessments of whether an employer has met the conditions required in the IRPR [R209.2 and R209.4]. If, on the basis of information obtained during an inspection, Immigration, Refugees and Citizenship Canada (IRCC) determines that an employer violated a program condition and was not justified in doing so [under subsection R209.2(3), R209.2(4) or R209.4(2)], IRCC must inform the employer of the finding and, as per section R209.997, add their name to the public list, which will state the violation and the penalty.
Discuss non-compliance
From canada.ca - employers who have been found non-compliant
Employers who hire temporary workers may be inspected to make sure they meet their responsibilities as an employer under the Temporary Foreign Worker Program or International Mobility Program. If an employer is found non-compliant, they can receive either or both of the following:
- a monetary penalty
- a ban from hiring temporary workers (these employers are ineligible to hire temporary workers for a period of time)
