Sunday, February 1, 2009


Is it work? Or isn’t it? 

By Sergio Karas
Karas & Associates

The Immigration and Refugee Protection Act (“IRPA”) , and its Regulations have been in effect since June 28, 2002, and provide more flexibility to hire foreign workers than previous immigration legislation. However, employers should plan carefully when considering international relocations, to avoid the pitfalls that plague the system, including misunderstanding as to who can work in Canada and for how long, delays at visa processing posts overseas and compliance with Service Canada requirements for obtaining Labour Market Opinions (“LMOs”). 

Definition of “work” 
A foreign worker may be authorized to work in Canada without a permit or may be required to obtain one. The first step in determining whether a Work Permit is needed, is to consider the nature of the activities to be performed by the foreign worker. “Work” is defined in Section 2 of the IRPA Regulations as an activity for which wages or commission are earned, or which competes directly with Canadian citizens or permanent residents in the labour market.

If a foreign worker performs an activity that will result in receiving remuneration, he or she will be engaging in “work”. This includes salary or wages, commissions, receipts for fulfilling a service contract, or any other situation where foreign nationals receive payment for the performance of services. Even if the foreign worker does not receive remuneration, the activities performed may still constitute “work” if there appears to be an element of competition with the local labour force. To determine which activities could be considered “work”, ask yourself the following questions:
  • Will the foreign worker be doing something that a Canadian or permanent resident should really have the opportunity to do?
  • Will the foreign worker be engaging in a business activity that is competitive in the marketplace? 

The answers to these questions are not always obvious. In a recent case, the Federal Court had to decide what is the scope of the term “work” as defined in the IRPA Regulations. In Juneja v. Canada , the court was faced with an interesting fact situation: Mr. Juneja entered Canada with a Study Permit, which prohibited his employment unless authorized by Citizenship and Immigration Canada, a standard requirement. During the course of an investigation, Mr. Juneja was observed to be working at a local automobile dealership in Edmonton. He was arrested for working without authorization, contrary to Section 30(1) of the IRPA . An admissibility hearing was then convoked where Mr. Juneja was declared to be inadmissible to Canada and issued an Exclusion Order requiring him to leave the country. Mr. Juneja did not dispute the fact that he was not in possession of a Work Permit; however, he contended that his activity did not constitute “work” as defined in the IRPA Regulations. Mr. Juneja argued that he was not being paid, and that he was only keeping track of his time in case he received the authorization to work in Canada. Although there was some dispute about the factual context, it was clear from the evidence that the employer had agreed to pay him $8 an hour retroactively for the time he had spent performing his services at the dealership, should he receive his Work Permit. At the admissibility hearing, it was determined that this “contingent” arrangement entered upon between Mr. Juneja and the dealership owner was an agreement to bank Mr. Juneja’s hours and to pay him a wage, albeit conditionally, and, therefore it was either an activity for which wages are paid or reasonably expected, or which is otherwise in direct competition with the employment activities of Canadians or permanent residents. Therefore, the tribunal concluded that, despite the fact that Mr. Juneja was not being paid immediately, his activities constituted “work” as defined in the IRPA Regulations.

Upon judicial review, the Federal Court entertained the question of whether a contingent arrangement to pay a wage for work performed meets the legal definition of “work” as set out in the IRPA Regulations. The question was answered in the affirmative. The Court held that Mr. Juneja had an expectation of future payment and the dealership had at least a conditional, and perhaps an absolute, legal obligation to pay for the work that he performed. This activity was of a character for which wages are paid or anticipated.

The Court further held that, even if Mr. Juneja was correct in arguing that the definition of “work” sets an absolute standard which is not fulfilled by a conditional arrangement for payment, his conduct was still caught by the second part of the definition, that is, the performance of an activity in direct competition with the activities of Canadians and permanent residents in the Canadian labour market: his employment directly competed with others who were legally entitled to work in Canada, and this was so whether a wage was paid or not. The Court rejected the contention that the second part of the definition of “work” only applied to self-employed persons, and held that the definition contains no such qualification. The Federal Court had already found in Georges v. Canada , dealing with previous immigration legislation, that the essential concern was to protect employment opportunities for Canadians whether wages were paid or not. The Court reasoned that neither Georges nor the later case of Bernardez v. Canada on the same subject could support a finding that Mr. Juneja was not working whether under the prior or current definition of “work”.

In light of this recent Federal Court decision, it is important that individuals not be engaged to perform any services, either paid or where a reasonable expectation of earnings exists, without first obtaining a Work Permit for a specific employer and activity, in accordance with the IRPA Regulations.