Avoiding Frostbite: A Primer On Canadian Employment, Immigration And Labour Laws

Author:Ms Andrea Raso-Amer and Tony G. Schweitzer
Profession:Fraser Milner Casgrain LLP
 
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Introduction

While Canada and the United States share very close bilateral ties, and there are many similarities in our governance and laws, there are also some very distinct and important differences that are relevant to crossborder business. One key difference exists in attracting, managing and retaining employees in Canada. Any company contemplating business north of the border should be made aware of these very significant considerations.

Immigration

There are restrictions on the employment in Canada of individuals who are not citizens or permanent residents of Canada. Subject to very limited exceptions, individuals must obtain a work permit.

Work is defined as any 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. An individual need not be paid in Canada (e.g. if remuneration is paid by a foreign entity) for the activity to be considered work.

Work Permits

Usually work permits will be issued for periods ranging from a few months to three years. Renewals are available in appropriate circumstances.

Certain classes of persons (known as "business visitors") carrying on certain types of limited business activities, do not require a work permit. Such persons include the following:

individuals coming into Canada to purchase goods for their country or corporation carrying on business outside of Canada, including individuals coming to Canada for the purpose of acquiring training or familiarization with the goods or services purchased; representatives of a foreign business or government coming to Canada for the purpose of selling goods, but not directly to members of the public. In most other cases, where a work permit will be required, a visa officer located outside of Canada processing such an application must consider the opinion of a foreign worker officer at a Human Resources and Skills Development Canada ("HRSDC") office in the province where the employment is to take place.

Employers who wish to hire a foreign worker must apply for a job offer confirmation, which is also called a Labour Market Opinion, by submitting a Labour Market Opinion application to HRSDC. In order to obtain the job offer confirmation, employers must demonstrate to an HRSDC officer:

i. the efforts made to recruit and/or train willing Canadians/permanent residents;

ii. that they are unable to find Canadians/ permanent residents with the necessary training and experience available to fill the job, and;

iii. that as a result of employing the foreign worker, some potential benefits to the labour market in Canada will occur. Once HRSDC confirms the job offer, a foreign worker must apply for a work...

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