Author Archives: Steven Meurrens

Grounds for Judicial Review – Findings of Fact in a Perverse or Capricious Manner

Section 18.1(4) of the Federal Court Act, RSC 1985, c F-7, states that the grounds for judicial review are:

The Federal Court may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal

(a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction;

(b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe;

(c) erred in law in making a decision or an order, whether or not the error appears on the face of the record;

(d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it;

(e) acted, or failed to act, by reason of fraud or perjured evidence; or

(f) acted in any other way that was contrary to law.

Based its Decision or Order on an Erroneous Finding of Fact in a Perverse or Capricious Manner

In Rahal v Canada (Minister of Citizenship and Immigration), 2012 FC 319, Justice Gleason provided the following guidance on interpreting s. 18.1(4): 

In the seminal case interpreting section 18(1)(d) of the FCA, Rohm & Haas, Chief Justice Jacket defined “perversity” as “willfully going contrary to the evidence” (at para 6). Thus defined, there will be relatively few decisions that may be characterized as perverse.

The notion of “capriciousness” is somewhat less exacting. In Khakh v Canada (Minister of Citizenship and Immigration), (1996), 116 FTR 310, [1996] FCJ No 980 at para 6, Justice Campbell defined capricious, with reference to a dictionary definition, as meaning “marked or guided by caprice; given to changes of interest or attitude according to whim or fancies; not guided by steady judgment, intent or purpose”. To somewhat similar effect, Justice Harrington in Matondo v Canada (Minister of Citizenship and Immigration), 2005 FC 416 at para 1, [2005] FCJ No 509, defined “capricious” as being “so irregular as to appear to be ungoverned by law”. Many decisions hold that inferences based on conjecture are capricious. In Canada (Minister of Employment and Immigration) v Satiacum (1989), 99 NR 171, [1989] FCJ No 505 (FCA) at para 33, Justice MacGuigan, writing for the Court, stated as follows regarding conjecture:

The common law has long recognized the difference between reasonable inference and pure conjecture. Lord Macmillan put the distinction this way in Jones v. Great Western Railway Co. [citation omitted]:

The dividing line between conjecture and inference is often a very difficult one to draw. A conjecture may be plausible but it is of no legal value, for its essence is that it is a mere guess. An inference in the legal sense, on the other hand, is a deduction from the evidence, and if it is a reasonable deduction it may have the validity of legal proof. …

Turning, finally, to the third aspect of section 18.1(4)(d), the case law recognizes that a finding for which there is no evidence before the tribunal will be set aside on review because such a finding is made without regard to the material before the tribunal (see e.g. Canadian Union of Postal Workers v Healy, 2003 FCA 380 at para 25, [2003] FCJ No 1517). Beyond that, it is difficult to discern a bright-line. The oft-cited Cepeda-Gutierrez v Canada (Minister of Citizenship and Immigration) (1998), 157 FTR 35, [1998] FCJ No 1425) [Cepeda-Gutierez] provides a useful review of the sorts of errors that might meet the standard of a decision made “without regard to the material” before the tribunal which fall short of findings for which there is no evidence. There, Justice Evans (as he then was) wrote at paragraphs 14 – 17:

… in order to attract judicial intervention under section 18.1(4)(d), the applicant must satisfy the Court, not only that the Board made a palpably erroneous finding of material fact, but also that the finding was made “without regard to the evidence” …

The Court may infer that the administrative agency under review made the erroneous finding of fact “without regard to the evidence” from the agency’s failure to mention in its reasons some evidence before it that was relevant to the finding, and pointed to a different conclusion from that reached by the agency. Just as a court will only defer to an agency’s interpretation of its constituent statute if it provides reasons for its conclusion, so a court will be reluctant to defer to an agency’s factual determinations in the absence of express findings, and an analysis of the evidence that shows how the agency reached its result.

On the other hand, the reasons given by administrative agencies are not to be read hypercritically by a court [citations omitted]… nor are agencies required to refer to every piece of evidence that they received that is contrary to their finding, and to explain how they dealt with it … That would be far too onerous a burden to impose upon administrative decision-makers who may be struggling with a heavy case-load and inadequate resources. A statement by the agency in its reasons for decision that, in making its findings, it considered all the evidence before it, will often suffice to assure the parties, and a reviewing court, that the agency directed itself to the totality of the evidence when making its findings of fact.

However, the more important the evidence that is not mentioned specifically and analyzed in the agency’s reasons, the more willing a court may be to infer from the silence that the agency made an erroneous finding of fact “without regard to the evidence”: … In other words, the agency’s burden of explanation increases with the relevance of the evidence in question to the disputed facts. Thus, a blanket statement that the agency has considered all the evidence will not suffice when the evidence omitted from any discussion in the reasons appears squarely to contradict the agency’s finding of fact. Moreover, when the agency refers in some detail to evidence supporting its finding, but is silent on evidence pointing to the opposite conclusion, it may be easier to infer that the agency overlooked the contradictory evidence when making its finding of fact.

Humanitarian & Compassionate Applications – The Establishment Factor

Subsection 25(1) of Canada’s Immigration and Refugee Protection Act provides immigration officers with the flexibility to grant on humanitarian and compassionate (“H&C”) exemptions to overcome the requirement of obtaining a permanent residence visa from abroad and/or to overcome class eligibility requirements and/or inadmissibilities.

H&C applications may be based on a number factors, including:

  • establishment in Canada;
  • ties to Canada;
  • the best interests of any children affected by their application;
  • factors in their country of origin (this includes but is not limited to: Medical  inadequacies, discrimination that does not amount to persecution, harassment or  other hardships that are not related to a fear of return based on refugee determination factors;
  • health considerations;
  • family violence considerations;
  • consequences of the separation of relatives;
  • inability to leave Canada has led to establishment; and/or
  • any other relevant factor they wish to have considered not related to a fear of return based on refugee determination factors.

Establishment in Canada

Citizenship and Immigration Canada’s Inland Processing Manual (the “Manual“) provides that the degree of an applicant’s establihsment may be measured with questions such as the following:

  • Does the applicant have a history of stable employment?
  • Is there a pattern of sound financial management?
  • Has the applicant remained in one community or moved around?
  • Has the applicant integrated into the community through involvement in community organizations, voluntary services or other activities?
  • Has the applicant undertaken any professional, linguistic or other studies that show integration into Canadian society?
  • Do the applicant and their family members have a good civil record in Canada? (e.g. no criminal charges or interventions by law enforcement officers or other authorities for domestic violence or child abuse).

Establishment and Legal Status in Canada

Being in Canada without status does not automatically lead to the non-application of H&C factors.  For example, remaining in Canada pending the outcome of legal procedures, including after a failed refugee claim, would not necessarily be a negative factor.  However, “flouting the law and ignoring lawful orders to leave the country” will likely result in the establishment factor being negative.

As the Federal Court of Appeal stated in Canada (Minister of Citizenship and Immigration) v. Legault, 2002 FCA 125:

In short, the Immigration Act and the Canadian immigration policy are founded on the idea that whoever comes to Canada with the intention of settling must be of good faith and comply to the letter with the requirements both in form and substance of the Act. Whoever enters Canada illegally contributes to falsifying the immigration plan and policy and gives himself priority over those who do respect the requirements of the Act. The Minister, who is responsible for the application of the policy and the Act, is definitely authorised to refuse the exception requested by a person who has established the existence of humanitarian and compassionate grounds, if he believes, for example, that the circumstances surrounding his entry and stay in Canada discredit him or create a precedent susceptible of encouraging illegal entry in Canada. In this sense, the Minister is at liberty to take into consideration the fact that the humanitarian and compassionate grounds that a person claims are the result of his own actions. (emphasis added)

In Molina v. Canada (Citizenship and Immigration), 2014 FC 530, the Federal Court added that:

When establishment is a function of having deliberately chosen to evade removal, it should not provide an applicant with an advantage over those who have complied with the law.

Circumstances Beyond the Applicant’s Control

The Manual provides guidance to officers in determining whether positive consideration may be warranted where the period of inability to leave Canada were beyond the applicant’s control, and where there is evidence of a significant degree of establishment in Canada such that it would cause the applicant unusual or disproportionate hardship to apply from outside Canada.  It states:

Circumstances beyond the applicant’s control 

If general country conditions are considered unsafe due to war, civil unrest, environmental disaster, etc., the Minister of Public Safety may impose a temporary suspension of removals (TSR) on that country.

If general country conditions are considered unsafe due to war, civil unrest, environmental disaster, etc., the Minister of Public Safety may impose a temporary suspension of removals (TSR) on that country.

Circumstances Not Beyond the Applicant’s Control

An applicant, in Canada for a number of years, is unwilling to sign a passport application or provide particulars for a passport application.

An applicant wilfully loses or destroys their travel document(s).

Applicant goes “underground” and remains in Canada illegally.

Human Smuggling – A Very Broad Offence

A Canadian citizen helps an undocumented refugee claimant come to Canada without the proper documentation to seek asylum by paying for part of his transportation.

A Canadian marries a foreign national, and helps bring her to Canada without going through the proper process. The couple are now staying with the Canadian’s mother, who is providing temporary accommodation while the couple looks for a place to rent.

When asked to describe a human smuggler, most people are unlikely to think of the above two scenarios. Rather, they will generally describe organized criminal elements who are paid to transport people across borders. However, in Canada the offence of “human smuggling” encompasses a wide range of actions, including the above two scenarios.

The broadness of human smuggling legislation in Canada is currently the subject of numerous challenges, and anyone who assists an undocumented individual in Canada should be aware of the ongoing judicial proceedings in R v. Appulonappa, 2014 BCCA 163.

Background to Appulonappa

Appulonappa arose from the October 17 2009 arrival to Vancouver Island of the MV Ocean Lady, which carried 76 undocumented Sri Lankan Tamil asylum seekers to Canada. The Crown charged four individuals with human smuggling pursuant to s. 117 of the Immigration and Refugee Protection Act, S.C. 2001, c 27 (“IRPA”), which states:

No person shall knowingly organize, induce, aid or abet the coming into Canada of one or more persons who are not in possession of a visa, passport or other document required by this Act.

No proceedings for an offence under this section may be instituted except by or with the consent of the Attorney General of Canada.

IRPA s. 117 is very broad, and consists of the following four elements:

  1. The person being smuggled did not have the required documents to enter Canada;
  2. The person was coming into Canada;
  3. The accused organized, induced, aided, or abetted the person to enter Canada; and
  4. The accused knew the person lacked the required documents for entry.

Prior to their trial, the accused brought an application before the British Columbia Supreme Court (“BCSC”) for an order declaring that IRPA s. 117 infringed s. 7 of the Canadian Charter of Rights and Freedoms (the “Charter”), which states:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

Generally, legislation that is overbroad will not be in accordance with the principles of fundamental justice, and breach s. 7 of the Charter. Overbroad legislation is that which interferes with conduct that bears no connection with the legitimate state objective that necessitated the creation of the offence. As the Supreme Court of Canada stated in Canada (Attorney General) v. Bedford, 2013 SCC 72:

Overbreadth deals with a law that is so broad in scope that it includes some conduct that bears no relation to its purpose. In this sense, the law is arbitrary in part. At its core, overbreadth addresses the situation where there is no rational connection between the purposes of the law and some, but not all, of its impacts. …

Overbreadth allows courts to recognize that the law is rational in some cases, but that it overreaches in its effect in others. Despite this recognition of the scope of the law as a whole, the focus remains on the individual and whether the effect on the individual is rationally connected to the law’s purpose. For example, where a law is drawn broadly and targets some conduct that bears no relation to its purpose in order to make enforcement more practical, there is still no connection between the purpose of the law and its effect on the specific individual. Enforcement practicality may be a justification for an overbroad law, to be analyzed under s. 1 of the Charter.

The accused in Appulonappa argued that the objective of IRPA s. 117 was to deter and penalize only those who engage in international human smuggling for material gain, but that the offence was overbroad as it criminalized the actions of individuals including humanitarian workers or family members who, for altruistic reasons, assist refugee claimants in entering Canada illegally. The BCSC agreed.

The BCCA Appulonappa Decision

The BCCA overturned the BCSC’s decision. It is interesting to note that during the appeal the Crown changed its position on why IRPA s. 117 is not overbroad.

At the BCSC, the Crown argued that IRPA s. 117 was enacted to stopping human smuggling, and that the offence would not result in humanitarians and family members being charged with human smuggling because the Attorney General would exercise his discretion to preclude such prosecutions. In essence, the Crown was arguing that the scenarios mentioned at the start of this blog post did not constitute human smuggling.

At the BCCA hearing, however, the Crown reversed its position, and argued that IRPA s. 117 applies universally without regard to the motive of those who provide assistance in entering Canada to undocumented refugee claimants.

The BCCA agreed, and affirmed that motive is not a constituent element of human smuggling. Rather, the motivation of an individual convicted of human smuggling is rather relevant only as an aggravating factor for the purpose of sentencing. It also affirmed that IRPA s. 117 criminalizes the actions of anyone who provides assistance to persons entering Canada illegally without the required entry documents. It explicitly found that a person whose motive is to assist a family member, or whose motive is for altruistic purposes, is encompassed by IRPA s. 117. Indeed, as the BCCA noted at para. 108 of its decision:

An examination of the terms “humanitarian” or “altruistic” demonstrates the legitimacy of these concerns. Such words are inherently subjective and imprecise, and rest on motive alone. Can one be a self-declared humanitarian? Will membership in any non-governmental organization, church, or a registered charity suffice? Is it enough that one does not profit from providing assistance? A question of purity of motive arises as well. I note those addressing this issue, including the parties and the trial judge, tend to preface the word “humanitarian” with descriptive terms such as “genuine”, “legitimate”, or “bona fide”, which suggests there exists a class of less reputable humanitarians who should not be exempt from charges. Hypotheticals can be portrayed from both sides that demonstrate the multiple factors at play. For example, should a humanitarian motive forestall charges in situations that compromise the integrity and efficiency of Canada’s refugee procedures? What of a person who, though well-intentioned, repeatedly, and after warnings, persists in assisting large numbers of refugee claimants to enter Canada illegally? What if those assisted, having jumped the queue, are routinely found to be illegal aliens rather than “genuine” refugees?

Outcomes

Unlike the BCSC’s decision to strike down Canada’s human smuggling legislation, the BCCA decision is not getting the media publicity that it arguably deserves. Many Canadians offer free assistance to undocumented individuals in Canada, often with the full knowledge that they came here without the proper documentation. These individuals are likely unaware that their benevolently motivated actions are likely considered human smuggling under Canadian law. Appulonappa is likely on its way to the Supreme Court of Canada, and hopefully that decision receive the media attention that this issue (which IMO is the criminalization of benevolent actions) observes.

Disguised Extradition

Extradition and deportation are two different things.  Extradition is the official process whereby one country transfers a suspected or convicted criminal to another country, generally for prosecution.  Deportation, on the other hand, is the removal of an individual from a country generally done for the purpose of achieving an immigration objective.  In Roncarelli v. Duplessis, [1959] S.C.R. 121, the Supreme Court of Canada (the “SCC”) recognized that it was an abuse of process for a government department to exercise a statutory power for a reason that is unrelated to the purpose for which that power was granted.  In the immigration context, it is accordingly an abuse of process for immigration authorities to initiate removal proceedings against an individual to extradite someone.

In United States v. Rogan, 2014 BCSC 116 (“Rogan”), Justice Fish summarized the principles of what is known as “disguised extradition” as follows: (Citations and paragraph numbers removed)

Deportation and extradition have fundamentally different underlying objectives. Deportation is a discretionary decision made by Canadian immigration authorities aimed at protecting the public good. Extradition, which is initiated by foreign authorities, is aimed at delivering a person sought for prosecution to that foreign authority.

A person subject to extradition proceedings has a panoply of constitutionally-enshrined protections not available to a person subject to an IRPA admissibility hearing. For example, a person ordered extradited is immune from prosecution in the requesting state for offences that have not been identified in the surrender order. By contrast, there are no restrictions on what a deported person can be prosecuted for once removed from Canada.

The essence of a “disguised extradition” claim is that removal proceedings were not instituted to pursue a valid immigration objective, but to procure, on behalf of a foreign state, a person’s return for prosecution.

A heavy onus rests on the party advancing a disguised extradition claim to establish, on clear and convincing evidence, that deportation proceedings were a mere artifice, sham, façade or device to achieve the ulterior objective of extradition.

In the face of such a claim, it is open to the Court to inquire whether the conduct of government reflects good faith pursuit of a legitimate Canadian immigration objective, or bad faith utilization of the power to deport for the collateral purpose of surrendering a person to a foreign state for prosecution. To succeed with a claim of disguised extradition, a person must first demonstrate that the Minister did not genuinely consider it to be in the public interest to expel the person in question in pursuit of a legitimate Canadian immigration objective.

Where, as in this case, a stay of proceedings is sought, the remedy will only be granted in the clearest of cases where the conduct at issue so shocks the conscience of the community that preservation of the integrity of the justice system requires termination of the proceedings by judicial order.

Given the high bar erected by the governing tests, it has been said that “disguised extradition” claims will succeed only in extremely rare cases.

The Purpose the Immigration Proceedings

As demonstrated in the summary above, what generally matters is the purpose of the government officials in initiating removal proceedings.  Canadian courts often cite the following passage from Lord Denning in R v. Brixton Prison (Governor), [1962] 3 All E.R, as endorsed by the SCC in Moore v. Minister of Manpower and Immigration, [1968] S.C.R. 839:

So there we have in this case the two principles:  on the one hand the principle arising out of the law of extradition under which the officers of the Crown cannot and must not surrender a fugitive criminal to another country at its request except in accordance with the Extradition Acts duly fulfilled;on the other hand the principle arising out of the law of deportation, under which the Secretary of State can deport an alien and put him on board a ship or aircraft bound for his own country if he considers it conducive to the public good that that should be done.  How are we to decide between these two principles?  It seems to me that it depends on the purpose with which the act is done.  If it was done for an authorized purpose, it was lawful.  If it was done professedly for an authorized purpose, but in fact for a different purpose with an ulterior object, it was unlawful.  If, therefore, the purpose of the Home Secretary in this case was to surrender the applicant as a fugitive criminal to the United States of America, because they had asked for him, then it would be unlawful; but if his purpose was to deport him to his home country because he considered his presence here to be not conducive to the public good, then his action is lawful.

Evidence of Disguised Extradition

Whether a removal proceeding amounts to a “disguised extradition” is very fact specific.  In Rogan, Justice Fish listed the following four reasons as for why in that case there was an air of reality to the “disguised extradition” claim:

  • several FOSS entries reflect CBSA’s pre-occupation with the concern that Mr. Rogan would not be returned to the United States for prosecution purposes if immigration authorities continued to admit and allow him to remain in Canada;
  • [Enforcement Officer] Papp’s email of May 9, 2008 reflects his expectation that a s. 44 report would be written in three or four weeks, despite the fact that, by his own admission, he had no specific information until May 23, 2008 that criminal charges would be laid against Mr. Rogan in the United States;
  • Papp’s rationale for proceeding with the s. 44 reports on May 23, 2008 as reflected in his Highlights report and, specifically, the extent to which the s. 44 reports appear to be based not on the conduct underlying the criminal charges filed in United States, but on the civil suit, the amount of money Mr. Rogan owed the U.S. government, and the adverse findings of fact and credibility made against Mr. Rogan in the civil proceeding – considerations Papp previously concluded would not make Mr. Rogan inadmissible under s. 36 of the IRPA; and
  • [Hearings Officer] Zuck’s suggestion, adopted by [Enforcement Officer] Fast, that two additional s. 44 reports subsequently be prepared based on the factual findings made in the civil proceeding – circumstances which Papp considered but ultimately rejected as the foundation for reasonable grounds to believe that Mr. Rogan was inadmissible to Canada under s. 36 of the IRPA.

In United States v. Wilson, 2013 ONSC 779, meanwhile, the close timing between an arrest warrant in the United States and an inadmissibility report being prepared in Canada raised the notion of an “air of reality” to he possibility that the removal proceedings were a disguised extradition.  Justice Hainey wrote:

The timing and circumstances of the formal commencement of criminal proceedings against Mr. Wilson in the United States and the initiation of deportation proceedings against him in Canada raise a realistic possibility that the Canadian deportation proceedings resulted from communications with the US authorities. The immigration arrest warrant was issued in Canada the day after the criminal complaint and arrest warrant were issued in the United States.

Further, the criminal complaint and arrest warrant were issued in the United States two days after Mr. Wilson left the United States and entered Canada. The FBI investigation of Mr. Wilson had been ongoing for over a year at this point

I find that the very close timing of these events raises a realistic possibility that there may have been communications between officials in Canada and the United States concerning Mr. Wilson’ return to the United States to face the outstanding charges. I therefore find that the requested disclosure could be relevant to Mr. Wilson’s allegation that the deportation proceedings were, in fact, disguised extradition proceedings.

And of course, for anyone interested in this topic, I encourage you to read the decision of United States of America v. Tollman.  The lawyers in that case were Michael Code, my first year criminal law professor at the University of Toronto, and David Martin, a criminal defence and extradition lawyer in Vancouver that our law firm works regularly with.  Some key paragraphs of this fascinating decision read:

Further, this is not simply a case of disguised extradition. The US authorities did not simply discover that a fugitive from their justice system was living in Canada and attempt to persuade Canada to turn him over, rather than commence extradition proceedings. The entire process in this case was engineered by the United States. Because the complaint and warrant were sealed, Mr. Tollman had no idea the United States was seeking to prosecute him. He went about his life in the normal course. US authorities waited for Mr. Tollman to leave his own country and tracked him to Canada. He was only going to be here for two days and the US was keen to have him arrested before he could get back home to the United Kingdom. US authorities deliberately laid in wait to trap Mr. Tollman in a jurisdiction where he would be without any kind of support system, where it would be relatively easy to effect his removal and where they expected to have the cooperation of local authorities. That is not to say that the CBSA was privy to all of the United States’ machinations. However, the CBSA was willing to take action it would not otherwise have taken, solely to assist the US in obtaining Mr. Tollman’s return and are therefore complicit, at least to that extent, in the scheme. The United States hoped that once arrested in a foreign country Mr. Tollman would be held in custody or under restrictions that were sufficiently onerous that he would waive his rights and surrender. Against this engineered backdrop the actual steps taken by way of disguised extradition take on an even more sinister character.

It is odd that Mr. Tollman was detained at the Metro West Detention Centre, the most restrictive facility in which he could be imprisoned. He had no criminal record and no history of violence and the offences with which he was charged were non-violent in nature. He had no history of disobeying court orders and, apart from the outstanding charges in the United States, appeared to be a respectable, law-abiding citizen. The usual detention centre for immigration matters is a secure facility and people held in custody there are not free to come and go as they wish. Such a facility would surely have been adequate to ensure Mr. Tollman did not simply leave the jurisdiction. His passports had been seized. There was no reason to believe he would “break out of” the usual immigration detention centre and then illegally flee the jurisdiction. The only basis for believing him to be a flight risk was his financial worth. In these circumstances, it is unusual that he would have been kept in custody in such harsh conditions. The allegation was made in this application that Mr. Tollman’s placement at the Metro West Detention was part of the overall scheme to intimidate him into giving up. Those allegations have gone unanswered. There is good reason to believe that the US authorities influenced the decision as to where Mr. Tollman would be detained, and further that their purpose in doing so was to ensure that his detention was as unpleasant as possible so as to pressure him into abandoning his rights and surrendering to the United States. This is a contributing factor to the abuse of process.

It stretches credulity to suggest that at the very time the United States was scrambling to get the extradition process commenced and arranging to apply on an urgent basis for an extradition arrest warrant, by pure happenstance, the person charged with the responsibility of carrying out the IRB order for Mr. Tollman’s release, all on his own, willfully refused to do so, and then left for the day, closing the office. How fortuitous. I acknowledge there is no direct evidence linking this deliberate refusal to obey a valid IRB order to any motivation to delay Mr. Tollman’s release until an extradition warrant could be obtained. However, it is clear there were communications at various levels about what was going on, communications that that were either not committed to writing, have not been preserved, or were not in the records of the CBSA that were ordered to be disclosed. The refusal to release in the face of an order that was not under appeal, the timing of that refusal, the all-too-convenient delay as a result of the release, and the communications that were ongoing between US and Canadian authorities raise a very real concern about the bona fides of the delay in releasing Mr. Tollman. The motivation behind this conduct was very directly challenged in the applicant’s material from the outset. Those people who are clearly in a position to clarify what happened have remained silent. That does not remove the heavy onus from the applicant to prove his case. However, in my view, this situation falls within the words of Donovan L.J. in Brixton Prison (at p. 664) in that the evidence that has been brought forward “sow[s] such substantial and disquieting doubts in the mind of the court about the bona fides . . . that the court will consider that some answer is called for.” In my opinion, the reasonable inference from the evidence (and the lack of any responding evidence) is that CBSA officials were deliberately dragging their feet in dealing with Mr. Tollman’s release, under the ruse of a jurisdictional problem with the IRB order, in order to give the US authorities and the DOJ sufficient time to obtain an extradition arrest warrant. That was improper and abusive.In addition to the personal impact on Mr. Tollman, the conduct here must be condemned as contrary to the fundamental principles upon which our justice system is based. The justice system must be fair for all who become enmeshed in it, regardless of intellect, wealth or station in life. Mr. Tollman was able to insist on his rights, albeit at considerable personal and financial cost. However, he was armed with intelligence, stamina, a social position of power and prestige, and enormous personal wealth. Very few people would have been able to do what he has done. If the system went awry for him, what hope is there for the weak, the poor and those less powerful? The answer must be in the vigilance of the justice system itself. Misconduct of this sort cannot ever be tolerated, for to do so is to condone, perhaps even to invite, similar conduct in the future. This is the kind of conduct that offends this community’s sense of fair play and decency. Having conducted itself in this manner, the requesting state is disentitled to any relief from this court. Accordingly, this extradition proceeding is permanently stayed.

The Upcoming Litigation Over Immigration, the TFWP, and Privacy

Last month, a British Columbia Provincial Nomination Program (“BC PNP”) officer requested that one of my employer clients provide payroll documents for individuals who were not a part of the BC PNP application.  We politely pointed out that the employer could not do this without the third party employees’ consent, as to provide the documents without their consent would be contrary to BC’s Personal Information Privacy Act.  Alternatively, the BC PNP had to at least provide the statutory authority to compel the production of these third party documents  The British Columbia Office of the Information & Privacy Commissioner confirmed that we were correct.  The BC PNP officer respected our position, and the events left me confident in the Province of British Columbia’s respect for personal privacy.

We were of course not the first to navigate the complicated intersection between the government’s administering its immigration programs the right to privacy, which pursuant to numerous Supreme Court of Canada is a quasi-constitutional right.  For example, as noted in the following “Findings under the Privacy Act,” Citizenship and Immigration Canada (“CIC”) recently agreed with the Office of the Privacy Commissioner of Canada that it was an unreasonable breach of privacy for CIC to request the tax information of potential employers of Live-in Caregivers:

Three individuals who wished to employ live-in caregivers from the Philippines complained to this Office that the Canadian Embassy in Manila was asking them to provide sensitive income tax information before it would issue visas to their prospective caregivers. The individuals were worried about sending tax documents containing their social insurance numbers (SINs) and detailed information about their financial situation to a foreign country, especially with identity fraud having become such a major concern.

Citizenship and Immigration Canada (CIC) explained that the Live-In Caregiver Program (LCP) brings qualified caregivers to Canada in situations where there are no Canadians or permanent residents available to fill certain positions. Canadians wishing to hire a caregiver from abroad are required to have their job offer validated through Human Resources Development Canada (HRDC) and to sign a form declaring that they can financially support the person they will employ.

After the job offer was validated by HRDC, the Visa Section of the Canadian Embassy in Manila asked the prospective employers to send their Notice of Assessment for the last two years, their T-4 slips and a letter from their employer confirming employment.

CIC claimed that the information was necessary to determine the bona fides of an employment offer and to confirm that the employers were financially capable of supporting a caregiver.

When questioned about its authority to collect income tax information for the purpose of issuing visas to third parties, CIC referred to section 203 of theImmigration and Refugee Protection Regulations. A review of that document indicated that the visa officer must determine if the job offer is genuine and if the employment of the foreign national is likely to have a neutral or positive economic effect on the labour market in Canada.

In the previous Annual Report, the former Commissioner stated his position concerning the collection of income tax information without legislative authority. He explained that he found it untenable that an income tax return can be demanded from an individual for a purpose other than that required by law. Canadians should never be required to compromise a fundamental right in order to do business with the Government.

This Office presented those arguments to CIC and, as a result, the Embassy in Manila confirmed that it has ceased asking for income tax information for the purpose of issuing visas to live-in caregivers.

I highlighted the above portion of the report because I think it is an especially salient observation.

The Reforms to the TFWP

On June 20, 2014, the Conservative Government of Canada introduced significant reforms to the Temporary Foreign Worker Program (“TFWP”), and released a 41-page PDF outlining the future of the program.  Buried on page 17 of the PDF is the following statement:

Furthermore, as of Fall 2014, ESDC will be able to compel banks and payroll companies to provide bank records and payroll documents to help inspectors verify that employers are complying with the rules of the TFWP.

Apparently the Government of Canada has a sufficient enough distrust of Canadian businesses that it believes it is necessary to bypass employers and require that banks provide employee payroll information instead.

The reason that reform of the TFWP is being delayed to the fall of 2014 is presumably because the Government of Canada needs to amend the Immigration and Refugee Protection Regulations in order to compel banks and payroll companies to disclose their clients sensitive information.

PIPEDA and R v. Spencer

Section 7(3) of Canada’s Personal Information Protection and Electronic Documents Act, SC 2000, c 5 (“PIPEDA”) provides that an organization may disclose information about an individual without their consent if:

(3) … an organization may disclose personal information without the knowledge or consent of the individual only if the disclosure is

(a) made to, in the Province of Quebec, an advocate or notary or, in any other province, a barrister or solicitor who is representing the organization;

(b) for the purpose of collecting a debt owed by the individual to the organization;

(c) required to comply with a subpoena or warrant issued or an order made by a court, person or body with jurisdiction to compel the production of information, or to comply with rules of court relating to the production of records;

(c.1) made to a government institution or part of a government institution that has made a request for the information, identified its lawful authority to obtain the information and indicated that

(i) it suspects that the information relates to national security, the defence of Canada or the conduct of international affairs,

(ii) the disclosure is requested for the purpose of enforcing any law of Canada, a province or a foreign jurisdiction, carrying out an investigation relating to the enforcement of any such law or gathering intelligence for the purpose of enforcing any such law, or

(iii) the disclosure is requested for the purpose of administering any law of Canada or a province;

Until recently, many, including apparently the Government of Canada, believed that PIPEDA s. 7(3) provided the legislative authority for the Government of Canada to compel organizations to disclose personal information of third parties without their consent.  However, on June 13, 2014, the Supreme Court of Canada (the “SCC”) held in R v. Spencer, 2014 SCC 43 (“Spencer“) that the right to privacy in Canada is stronger than that.  

In Spencer, the Saskatoon Police Service relied on s. 7(3)(c.1)(ii) of PIPEDA to obtain without a warrant account information about an individual from an Internet Service Provider.  The accused argued that this breached s. 8 of the Canadian Charter of Rights and Freedomswhich provides that:

Everyone has the right to be secure against unreasonable search or seizure.

As noted by the SCC in Spencer:

Under s. 8 of the Charter , “[e]veryone has the right to be secure against unreasonable search or seizure.” This Court has long emphasized the need for a purposive approach to s. 8 that emphasizes the protection of privacy as a prerequisite to individual security, self-fulfilment and autonomy as well as to the maintenance of a thriving democratic society.

In determining that s. 7(3) of PIPEDA did not authorize the police to compel production of third party documents, the Supreme Court of Canada determined that:

“Lawful authority” in s. 7(3) (c.1)(ii) of PIPEDA  must be contrasted with s. 7(3) (c), which provides that personal information may be disclosed without consent where “required to comply with a subpoena or warrant issued or an order made by a court, person or body with jurisdiction to compel the production of information, or to comply with rules of court relating to the production of records”. The reference to “lawful authority” in s. 7(3) (c.1)(ii) must mean something other than a “subpoena or [search] warrant”. “Lawful authority” may include several things. It may refer to the common law authority of the police to ask questions relating to matters that are not subject to a reasonable expectation of privacy. It may refer to the authority of police to conduct warrantless searches under exigent circumstances or where authorized by a reasonable law: Collins. As the intervener the Privacy Commissioner of Canada submitted, interpreting “lawful authority” as requiring more than a bare request by law enforcement gives this term a meaningful role to play in the context of s. 7(3)  and should be preferred over alternative meanings that do not do so. In short, I agree with the Ontario Court of Appeal in Ward on this point that neither s. 487.014(1) of the Code, nor PIPEDA  creates any police search and seizure powers: para. 46.

The notion that “Lawful Authority” requires exigent circumstances or that a law be “reasonable” will likely be a significant hurdle for the Government of Canada to overcome should it actually try to compel banks to provide their clients information without consent.

The Erosion of Your Privacy

Of course, this somewhat surprising flippant attitude towards privacy is not only occurring in the immigration context.  In the tax context, the 2014 omnibus Budget Implement Act which will require Canadian banks to provide their customers’ account information to the United States Internal Revenue Agency.  As Professor Arthur Cockfield recently wrote in the Globe and Mail, the threats to the privacy of millions in Canada risks being compromised:

The proposed law applies to a broad class of U.S. expatriates and Canadians who could now be subject to fines, interest penalties, criminal sanctions, and denial of entry into the United States. Under the proposed approach, Canadian banks will have to look to their records on birth places, residences, Social Insurance Numbers and other information to see if any “U.S. person” holds an account. “U.S. person” is a defined term that includes many more people in Canada than almost anyone realizes. It includes U.S. citizens and non-citizens with various personal or economic ties to the United States (for example, former green card holders now residing in Canada).

Canadian snowbirds who travel to the United States for part of each year may also be caught in the tax web if they are deemed to be U.S. persons under facts and circumstances tests. So-called ‘accidental Americans’, including Canadians with U.S. citizen parents who have never stepped foot in the United States, are also swept up in the net. Finally, any Canadians who jointly hold accounts with a U.S. person for family or business purposes will see their sensitive financial information shipped south of the border too.

All Canadian businesses that are partly owned by a “U.S. person” will also have their sensitive financial account information disclosed to the IRS. This includes confidential information that, if improperly revealed to competitor firms, could harm the ability of Canadian businesses to compete against U.S. firms. In light of recent disclosures surrounding U.S. state-sponsored corporate espionage, the Canadian business community should be yelling to the rooftops about this commercial confidentiality concern.

The concerns that I have over the continued erosion of privacy, and the legislative procedural manner in which it is occurring, are perhaps best summarized by Chantal Bernier, Assistant Privacy Commissioner of Canada, who, when speaking before the Senate Standing Committee on Transport and Communications said that:

 

With respect to Parliamentary oversight, one of our consistent concerns about the API/PNR program is the lack of transparency and the degree to which the details of the program are contained in regulations and are negotiated secretly with other countries.  While we understand that international negotiations require a degree of secrecy, transparency requires that secrecy be kept to a minimum so that law abiding citizens have a proper understanding of the system put in place and the level of intrusion that is proposed.

Fundamental questions about the API/PNR Program such as the data elements that are provided to CBSA, how this information can be used, with whom it may be shared and how long it is retained cannot be found in the Customs Act.  To a large degree, these matters have been shaped by negotiations with other jurisdictions, most notably with the European Union.

A new PNR Agreement is currently being negotiated with the European Union.  Based on the Agreement between the EU and US that was approved earlier this year, we are concerned that, under a new Canada-EU Agreement, the amount of information collected by CBSA will increase, it will be used for more purposes, and it will be retained longer.

In doing research for this blog post,I stumbled upon the following report from the Office of the Privacy Commissioner of Canada, which gives rise to additional concerns.

A Canadian woman wanted to hire a Bangladeshi man as a live-in caregiver for her child. The man applied for a work permit at the Canadian High Commission in Dhaka and supplied all the necessary documents.

To strengthen the man’s application, the woman asked her MP to send a letter of support to the High Commission. She also asked the MP to attach to his letter copies of personal documents such as her passport and federal income tax assessment, which included her date of birth, Social Insurance Number and other personal information.

The MP’s office forwarded all this information to officials of Citizenship and Immigration Canada at the Canadian High Commission in Dhaka.

The man’s application for a work permit was refused. Following standard practice, the Immigration official returned to the man the entire contents of his file, which included not only his documents, but also the woman’s personal documents sent by the MP’s office.

According to the woman, the man then shared her personal information with family and friends. She was concerned that this disclosure could result in identity theft or jeopardize her safety if she travelled to Bangladesh. She complained to our Office.

Citizenship and Immigration acknowledged that it did not have the complainant’s consent and that her personal information should not have been disclosed to the man. At our request, officials apologized to the complainant in a letter.

Restoration of Status (Last Updated June 30, 2014

If a visitor, worker, or student loses their status in Canada, then they may apply to restore their status.  Such applications are referred to as “restoration applications.”  Section 182 of the Immigration and Refugee Protection Regulations provides that:

182. On application made by a visitor, worker or student within 90 days after losing temporary resident status as a result of failing to comply with a condition imposed under paragraph 185(a), any of subparagraphs 185(b)(i) to (iii) or paragraph 185(c), an officer shall restore that status if, following an examination, it is established that the visitor, worker or student meets the initial requirements for their stay, has not failed to comply with any other conditions imposed and is not the subject of a declaration made under subsection 22.1(1) of the Act.

Citizenship and Immigration Canada’s Inland Processing Manual (the “Manual“) further provides that if an applicant applies to extend their temporary resident status after their temporary resident status expires, but within the 90-day restoration period, then the Case Processing Centre – Vegreville will inform them that they must also apply for restoration of status.  The applicant will be given 90 days from the date of notification to submit their restoration application.  This is an important point to note, as many people mistakenly assume that the 90-day restoration period only starts when a person’s work permit, visitor record, or study permit expires.  Rather, it is when their temporary resident status expires, which includes implied status.

The Manual also provides that restoration cannot be granted at Canadian ports of entry.

Approval Percentages

As can be seen in the tables below, the percentage of restoration applications approvals is loser than for people simply seeking to extend their status.  This is not surprising.

Restoration Requested
Type Approved Refused Withdrawn %
E-App Study Permit 1554 173 93 90%
Visitor Record 478 105 126 82%
Work Permit 838 117 161 88%
Total 2870 395 380 88%
Paper Study Permit 1244 246 6 83%
Visitor Record 1965 537 18 79%
Work Permit 2794 551 24 84%
Total 6003 1334 48 82%

 

No Restoration Requested
Type Approved Refused Withdrawn %
E-App Study Permit 44135 1625 469 96%
Visitor Record 15739 841 1081 95%
Work Permit 68732 3332 1194 95%
Total 128606 5798 2744 96%
Paper Study Permit 14700 1078 41 93%
Visitor Record 26950 2238 112 92%
Work Permit 62728 5312 403 92%
Total 104378 8628 556 92%

 

* This data is for the first three quarters of 2013.

** For the approval percentage I removed the withdrawn column as applications could be withdrawn for numerous reasons, and do not indicate the likeliness of approval or refusal.

Time Lines
Applicants must submit restoration applications within the specified period.  The failure to do so will result in an application being refused.  Indeed, if an application for restoration is submitted outside the 90-day period imposed by law, then the Courts have held that Citizenship and Immigration Canada must refuse the application (Novak v. Canada, 2004 and  Avi Adroh v. Canada, 2012).The 90 Day Deadline

As well, unlike with many areas of immigration law, the 90-day period starts the day an applicant’s temporary resident status expires.  It does not begin when the applicant receives CIC’s decision (Nzegwu v. Canada, 2010).  As such, even if there is a 3-4 month delay by Citizenship and Immigration Canada in informing a foreign national about a loss of temporary resident status, the applicant cannot submit a restoration applicaiton because he or she is statute barred from doing so.

Working During Implied Status

Another myth that exists is that foreign nationals can work in Canada during the restoration period.  This is not true. Regulation 182 provides that a foreign national can restore temporary resident status if the foreign national did not comply with a condition imposed under regulations 185(a), 185(b)(i) to (iii), or paragraph 185(c) of the Immigration and Refugee Protection Regulations. These sections state that:

185. An officer may impose, vary or cancel the following specific conditions on a temporary resident:
(a) the period authorized for their stay;

(b) the work that they are permitted to engage in, or are prohibited from engaging in, in Canada, including
(i) the type of work,
(ii) the employer,
(iii) the location of the work,

(c) the studies that they are permitted to engage in, or are prohibited from engaging in, in Canada, including
(i) the type of studies or course,
(ii) the educational institution,
(iii) the location of the studies, and
(iv) the times and periods of the studies;

Working without authorization is prohibited by regulation 183(1)(b) of the Regulations.  As such, applicants cannot work during the restoration period.  Indeed, if either the Canada Border Services Agency or Citizenship and Immigration Canada discovers the unauthorized work then the applicant will be issued an inadmissibility report and/or denied a work permit.

Removal

Generally speaking, it is rare that the Canada Border Services Agency will issue a removal order against someone who has applied for restoration of status.  Where they have done so, a quick reading of the jurisprudence indicates that the Federal Court has sided with applicants in determining that this was unreasonable.

In Yu v. Canada, 2005 FC 1213, for example, an individual applied to restore his study permit one day after his status expired.  During the period that Citizenship and Immigration Canada was processing his study permit extension application, the Canada Border Services Agency issued a removal order against the applicant.  The removal order was made on the basis that the applicant had stayed in Canada beyond the period authorized by his stay.   Justice Simpson, however, found this unreasonable, stating that:

It cannot be said that a temporary resident who has applied for restoration of his permit in a timely manner, as he is entitled to do so under the Regulations, has failed to comply with or breached the IRPA.

However, the Federal Court has ruled that a Minister’s delegate has a duty to consider eligibility to apply for restoration and/or that a restoration has been submitted when determining whether to issue an inadmissibility report. (Sui v. Canada, 2006)

Government of Canada Overhauls the Temporary Foreign Worker Program

On June 20, 2014, Citizenship and Immigration Canada (“CIC”) and the Ministry of Economic and Social Development Canada (“ESDC”) announced significant reforms to the Temporary Foreign Worker Program (“TFWP”).  The changes will affect all employers of Temporary Foreign Workers (“TFWs”) in Canada.  Many of the changes take effect immediately, with the remainder being phased in over the next year in a half.
 
The reforms are comprehensive, and include the following:

  • Labour Market Impact Assessment Program
    • New Labour Market Information Assessment (“LMIA”) Replaces the Labour Market Opinion (“LMO”)
    • LMIA Application Fee of $1,000
    • Guaranteed 10-Day Processing For Certain Occupations
    • Dividing LMIAs into High-Wage and Low-Wage Positions
    • Cap on Low-Wage TFWs for Individual Companies
    • Refusing Low-Skilled LMIA Applications in Areas of High Unemployment in Some Occupations
    • Reducing the Duration of Low-Wage Work Permits
    • Introduction of Transition Plans for High-Wage Positions
  • Stronger Enforcement and Tougher Penalties
    • Increasing the Number and Scope of Inspections
    • Monetary Fines for Employers Who Break the Rules
  • International Mobility Programs (“IMP”)
    • IMP Replacing LMO-Exempt Work Permit Program
    • New Fee and Employer Compliance System
    • New Privilege Fee for Open Work Permit Applicants
    • Amending Provincial Annexes
    • International Experience Canada Program Being Restructured
    • Intra-Company Transfer Program – New Rules for Specialized Knowledge Applicants

As noted above, the Labour Market Opinion (“LMO”) program is being renamed the Labour Market Impact Assessment (“LMIA”).  As well, the International Mobility Program (“IMP”) is replacing work permit applications which were previously classified as LMO-exempt.   
 
Please note that what follows below provides only a summary of the changes.  We have provided at the end of this newsletter a link to a 41-page Government of Canada PDF which provides a more comprehensive overview.

Labour Market Impact Assessment Program

New Labour Market Information Assessment (“LMIA”) Replaces the Labour Market Opinion (“LMO”)
 
In addition to current LMO recruitment and application requirements, the LMIA application will require that employers state the number of Canadians that applied for the position, the number of Canadians that the employer interviewed, and an explanation of why those Canadians were not hired.
 
In order to verify employer attestations, the Canada Job Bank will soon feature a Job Matching Service that will allow Canadians to apply directly through the Canada Job Bank for jobs that match their skills and experience.  ESDC has stated that LMIA officers will thus be better aware of the number of potential applicants and how closely their skills align with available jobs, which presumably means that LMIA officers will have access to applicant information.
 
ESDC has also announced that starting in 2015 its officers will also be able to access Employment Insurance (“EI”) program data and other internal sources to accurately determine the availability of qualified Canadian workers. For example, LMIA program officers will know if employers requesting TFWs have recently laid-off Canadian workers. Additionally, program officers will be able to determine if employers are requesting TFWs in regions where there are unemployed Canadians with the appropriate skills. Finally, EI data will be used to help match unemployed workers with available jobs. 
 
Finally, ESDC will be publishing a quarterly list of employers who received a positive LMIA. The objective is that if qualified Canadian applicants who applied for a position will be able to see if the company ultimately hired a TFW.
 
LMIA Fee of $1,000
 
Previously, a LMO cost $275.00 per position.  Under the LMIA, the application fee is being increased to $1,000.00 for every TFW position that an employer requests.  This increased fee is now in effect.
 
There will be no refund in the event of a negative LMIA, or if the employer cancels or withdraws the application.  Employers requesting to have their LMIA application reconsidered as a result of a negative LMIA must submit a new application and processing fee for each position.
 
Additionally, ESDC will in the summer of 2015 be imposing an estimated $100 “privilege fee” on employers applying for LMIAs.  This will in effect result in the LMIA fee being $1,100.00 per position.
 
Guaranteed 10-Day Processing For Certain Occupations
 
ESDC has announced that effective immediately LMIA applications for the highest-demand occupations (skilled trades), the highest-paid occupations (top 10 percent), or short-duration work periods (120 day or less) will now be processed within a 10-business-day service standard.
 
Dividing LMIAs into High-Wage and Low-Wage Positions 
 
Previously, the LMO program was divided into High-Skilled and Low-Skilled positions based on the National Occupational Classification (“NOC”).  Under the LMIA, wage levels will now replace the NOC system as the main criteria for administering the TFWP. 
 
Jobs with wages below the provincial or territorial median wage will be considered “Low-Wage.”  Jobs which pay at or above the provincial or territorial median wage will be considered “High-Wage.”
 
The current Median Hourly Wages by Province / Territory are:

Province/Territory Wage ($/hr)
Newfoundland and Labrador $ 20.19
Prince Edward Island $ 17.26
Nova Scotia $ 18.00
New Brunswick $ 17.79
Quebec $ 20.00
Ontario $ 21.00
Manitoba $ 19.00
Saskatchewan $ 21.63
Alberta $ 24.23
British Columbia $ 21.79
Yukon $ 27.93
Northwest Territories $ 32.53
Nunavut $ 29.96

It is important to note that this does not mean that Prevailing Wage for an individual position is being abolished.  Rather, the High-Wage / Low-Wage distinction refers to the overall administration of the program. As noted below, there are important distinctions in how ESDC will process LMIA applications depending on whether they are High-Wage or Low-Wage.
 
Cap on Low-Wage TFWs for Individual Companies
 
Employers with 10 or more employees applying for a new LMIA are subject to a cap of 10 percent on the proportion of their workforce that can consist of Low-Wage TFWs.
 
TFWs currently working at work sites over the cap will be allowed to continue working at those sites until their existing work permits expire.  As well, to provide employers who are above the 10 percent cap time to transition and adjust to this new cap, it will be phased in over the next couple of years.  For those employers that currently have a Low-Wage TFW workforce that is above the cap, effective immediately, when those employers apply for a new LMIA they will be limited at 30% or frozen at their current level, whichever is lower. This transition measure will be further reduced to 20 percent beginning July 1, 2015 and reduced again to 10 percent on July 1, 2106.
 
Employers with fewer than 10 employees nationally, including the vacant positions they are considering to hire foreign workers for, are exempt from the cap requirement.
 
Refusing Low-Skilled Applications in Areas of High Unemployment in Some Occupations
 
ESDC will refuse to process certain LMIA applications in the Accommodation, Food Services and Retail Trade sectors. Specifically, ESDC will not process LMIA applications for employers if they meet all of the following criteria:

  • the employer is applying for an LMIA in a Statistics Canada economic region with an annual unemployment rate over 6%;
  • the employer is seeking an LMIA in a specific occupation identified under North American Industry Classification System as Accommodations & Food Service or Retail Sales; and
  • the employer is seeking an LMIA in an occupation in one of the following occupations:
    • Food Counter Attendants, Kitchen Helpers and Related Occupations ;
    • Light Duty Cleaners ;
    • Cashiers;
    • Grocery Clerks and Store Shelf Stockers;
    • Construction Trades Helpers and Labourers;
    • Landscaping and Grounds Maintenance Labourers;
    • Other Attendants in Accommodation and Travel;
    • Janitors, Caretakers and Building Superintendents;
    • Specialized Cleaners; and
    • Security Guards and Related Occupations.

Reducing the Duration Low-Wage of Work Permits 
 
The duration of work permits for Low-Wage positions will be reduced from the current two-year standard duration to a one-year period.
 
As well, CIC will reduce the cumulative duration that Low-Wage foreign workers can work in Canada. The exact amount has not yet been specified.
 
Introduction of Transition Plans for High-Wage Positions
 
Employers seeking to hire High-Wage TFWs will now be required to submit Transition Plans to demonstrate how they will increase efforts to hire Canadians, including through higher wages, investments in training and more active recruitment efforts from within Canada.  An employer will have to provide a Transition Plan for each position that it is seeking a LMIA for. The requirement that employers provide a Transition Plan has taken effect immediately.
 
Employers may be exempt from the Transition Plan requirement if they are hiring TFWs for positions which:

  • require unique skills (ESDC has stated that two examples include nuclear physicist and senior executives such as Chief Executive Officer);
  • have a limited duration of between:
    • 1 and 120 days (ESDC has stated that two examples include emergency or warranty work repair technicians / mechanics); or
    • more than 120 days to a maximum of 2 year (ESDC has stated that two examples include project-based business consultant, specialized construction engineer).

As part of the Transition Plan, employers are required to conduct the all of the following:

  • General Requirements – Employers must conduct at least 3 distinct activities that are designed to recruit, retain, and train Canadian citizens and permanent residents;
  • Underrepresented Groups requirement – Employers must conduct at least 1 distinct activity to work with an organization serving underrepresented groups (Aboriginal peoples, youth, immigrants and persons with disabilities) to identify potential candidates for recruitment or training. This activity is additional to that conducted for the minimum recruitment and advertisement requirement. If the underrepresented group is the same, the activities must be different. If the activities are for the same group, they must be substantially different.
  • Permanent Resident Requirement – Employers must conduct at least 1 distinct activity that supports a TFW’s permanent transition to Canada. This activity could include assisting with language training.

Employers will be required to report on the results of the commitments they have made in their Transition Plan if they are selected for an inspection, or choose to re-apply for a subsequent LMIA for the same occupation and work location.

Stronger Enforcement and Tougher Penalties

Increasing the Number and Scope of Inspections
 
ESDC will be increasing the number of inspections that it conducts so that one in four employers using temporary foreign workers will be inspected each year. 
 
ESDC has the authority to immediately inspect complaints of possible rule-breaking, conduct warrantless on-site visits, interview TFWs and other employees with their consent, and compel employers to provide documents for the purpose of verifying their compliance with the TFWP. As of the fall of 2014, ESDC will be able to compel banks and payroll companies to provide bank records and payroll documents to help inspectors verify that employers with the rules of the TFWP.
 
As well, the Canada Border Services Agency (the “CBSA”) is receiving new financial resources to increase its capacity to criminally investigate suspected cases of offenses by employers.  Under the Immigration and Refugee Protection Act, employers who intentionally misrepresent information or withhold information or provide false information to contravene immigration laws, including lying in a LMIA application, can be fined up to $100,000 and imprisoned for up to five years or both. The CBSA is expected to begin prosecuting numerous investigations in the autumn of 2014.
 
Monetary Fines for Employers Who Break the Rules
 
Beginning in fall 2014, the Government will impose fines of up to $100,000 (depending on the severity of the offence) on employers who break the rules of the TFWP.  In addition to standard rules such as not underpaying employees, employers may be fined for misstatements and falsehoods in LMIA applications.
 
ESDC will publicly disclose the names of employers who have been fined and the amount of that fine.

International Mobility Programs

 
New Fee and Employer Compliance System
 
Currently, many prospective TFWs are able to apply for work permits without a LMO assessment at a Canadian Port of Entry. 
 
Under the reforms, employers hiring LMIA-exempt workers under the IMP will be required to submit the job offer and other relevant information to CIC.  Prospective TFWs will not be able to apply for a work permit until their employer has done so.  CIC has committed to this change, which it has not provided any additional information on, coming into effect by the summer of 2015.  The reason for the delay is presumably this reform will require significant amendments to Canada’s Immigration and Refugee Protection Regulations
 
CIC has also announced that it will be creating a compliance system for the IMP which will presumably be similar to the LMIA system.
 
A new Work Permit application fee of $230.00 will also be introduced in the summer of 2015.    
 
New Privilege Fee for Open Work Permit Applicants
 
CIC is introducing a $100.00 Work Permit privilege fee for open work permit applicants. As with the LMIA $100.00 “privilege fee,” this fee is expected to be introduced in the summer of 2015.
 
Amending Provincial Annexes
 
Five provincial/territorial governments (Alberta, British Columbia, Ontario, Nova Scotia and Yukon) currently have annexes to their immigration agreements with the Government that establish LMIA exemptions in their jurisdiction.
 
The Government of Canada has given notice to provinces that it is changing the existing agreements, and removing many of the exemptions.
 
International Experience Canada Being Restructured
 
The International Experience Canada program is currently under review.  There is currently a large imbalance between the number of foreign nationals arriving in Canada compared to the number of Canadians participating abroad.  As such, CIC will be enhancing its efforts to promote the program to Canadians. At the same time, it will review each mobility agreement on a country-by-country basis to ensure that the rate of reciprocity is improved.  This may feature quota reductions.
 
Intra-Company Transfer Program – New Rules for Specialized Knowledge Applicants
 
On June 92014, CIC reformed the Intra-Company Transferee – Specialized Knowledge stream so that applicants demonstrate a high degree of both proprietary knowledge and advanced expertise.  As well, specialized Knowledge applicants must be paid the Prevailing Wage for their position.  Non-cash per diems, including hotel and transportation, are not to be included in the calculation of the overall salary.  This change took effect on June 9, 2014.
 
More information about the changes to the TFWP can be found here.

Please contact us if you have any questions or concerns about these changes.

ETA Regulations Announced

As I have previously written in this blog on numerous occasions, in April 2015 Canada will adopt an Electronic Travel Authorization (“eTA“) program that is similar to the Electronic System for Travel Authorization (“ESTA“) that the United States currently has, and the Electronic Travel Authority that Australia has. In January, I summarized the eTA in The Canadian Immigrant Magazine as follows:

People who wish to visit Canada generally fall into one of two categories:  those who need to apply for and obtain temporary resident visas prior to arriving in Canada; and those who can arrive at Canadian ports of entry without first obtaining a visa. This will change in April 2015, when Canada implements the electronic travel authorization (“eTA”) system.

All foreign nationals who are exempt from the requirement to obtain a temporary resident visa will instead need to obtain online authorization before they fly to Canada.  This includes Europeans, Australians, Japanese, Koreans, etc. Citizens from the United States, however, are exempt.

The eTA application process will be online via the Citizenship and Immigration Canada (CIC) website. Applicants will be required to enter biographic, passport and background information, which may affect admissibility to Canada. An electronic system will then perform an examination that includes a risk assessment and a verification of the information provided in the application against enforcement databases. The Government of Canada expects that the majority of applications will be approved within minutes.

Airlines will have to provide passenger information to Canadian immigration authorities prior to boarding. If an individual who has not yet received an eTA attempts to check in, then the airline will be informed that the person is prohibited from travelling to Canada.

The eTA will impact nearly all travellers to Canada who do not have to apply for Temporary Resident Visas (“TRV“) to visit Canada.  According to the Gazette, TRV-exempt foreign nationals, excluding U.S. citizens, represent approximately 74% of foreign nationals who arrive by air in Canada. Citizenship and Immigration Canada (“CIC“) does not currently screen these individuals for admissibility until they arrive at a Canadian port of entry (“POE“). Rather, TRV-exempt nationals are examined by the Canada Border Services Agency (“CBSA“) only upon arrival at a POE .  As noted in the The Canadian Immigrant excerpt above, the eTA will change this. 

Until recently, most of the details of the eTA were unclear.  However, on June 21, 2014, the Government of Canada (“GoC“) in the Canada Gazette (the “Gazette“) published proposed amendments to the Immigration and Refugee Protection Regulations (“IRPR“) pertaining to the eTA. 

The proposed amendments to IRPR:

  • create the regulatory requirement for the eTA;
  • establish the eTA application procedures;
  • specify when an eTA expires and when it can be cancelled;
  • set the fee that is payable for the processing of an eTA application; and
  • create exemptions from the requirement to obtain an eTA.

The Regulatory Requirement for the eTA

IRPR r. 7 currently states that:

Temporary resident

7. (1) A foreign national may not enter Canada to remain on a temporary basis without first obtaining a temporary resident visa.

Exception

(2) Subsection (1) does not apply to a foreign national who

(a) is exempted under Division 5 of Part 9 from the requirement to have a temporary resident visa;

(b) holds a temporary resident permit issued under subsection 24(1) of the Act; or

(c) is authorized under the Act or these Regulations to re-enter Canada to remain in Canada.

The GoC’s amendments to IRPR will create a new IRPR r. 7.1 which will state:

Electronic travel authorization

7.1 (1) A foreign national referred to in paragraph 7(2)(a) who is is exempt from the requirement to obtain a temporary resident visa under subsection 7(1) and is seeking to enter Canada by air to remain on a temporary basis is, nevertheless, required to obtain an electronic travel authorization before entering Canada, unless they are exempted by subsection (3) from the requirement to obtain one.

Holder of a temporary resident visa

(2) Subsection (1) does not apply to a foreign national who holds a temporary resident visa.

It is important to note that the eTA will only apply to individuals arriving by air.  This is presumably because foreign nationals who arrive in Canada by land or sea will have already been approved by the United States under ESTA.

eTA Application Procedures

Foreign nationals who are required to apply for a eTA will do so through the CIC web site.  Individuals who are unable to apply online may apply in writing. 

eTA applicants will be required to enter biographic, passport, and background information similar to the personal information that is currently collected by the CBSA at POEs.  Specifically, a new IRPR r. 12.01(4) will provide that an eTA application must contain the following information:

(a) the applicant’s name;

(b) the applicant’s date and place of birth;

(c) the applicant’s gender;

(d) the applicant’s marital status;

(e) the applicant’s address;

(f) the applicant’s nationality;

(g) the number of the applicant’s passport or other travel document, together with its date of issue and its expiry date and the country or the authority that issued it;

(h) the purpose and duration of the applicant’s temporary visit to Canada;

(i) if the applicant is an applicant referred to in any of paragraphs 10(2)(c.1) to (c.4), the information required by that paragraph; and

(j) a declaration that the information provided in the application is complete and accurate.

eTA applicants will also be required to inform CIC if they received assistance in completing their eTA applications.

In reviewing the above application requirements, unless the GoC is about to enter into numerous criminal record database sharing agreements with European nations, Japan, Australia, etc., it is not clear to me how this information will prevent people with criminal records from boarding aircraft bound for Canada.

CIC is estimating that most eTA applications will be approved electronically in minutes.  All refusals will be reviewed by a a human officer.  Highly complex cases will require assessment by senior decision-makers, and may be referred to overseas missions.  Once a case is referred overseas, applicants may be required to submit additional information and/or attend an interview with an officer.  Some cases may also be referred to the CBSA, the Canadian Security Intelligence Services, and the Royal Canadian Mountain Police.  CIC is committing to a 72 hour service standard for complex applications, although this promise has not been codified in IRPR.

eTA Expiry and Cancellation

A new IRPR r. 12.02 and 12.03 will provide that:

12.02 An electronic travel authorization is valid for a period of five years from the day on which it is issued to the applicant or until the earliest of the following days, if they occur before the end of that five-year period:

(a) the day on which the applicant’s passport or other travel document expires,

(b) the day on which the electronic travel authorization is cancelled, or

(c) the day on which a new electronic travel authorization is issued to the applicant.

Cancellation

12.03 An officer may cancel an electronic travel authorization that was issued to a foreign national if the officer determines that the foreign national is inadmissible.

Cancellation will occur where a foreign national provides false information in the eTA application, where evidence indicates that a foreign national is inadmissible to Canada, or where permitting the foreign national to travel to Canada would pose a security risk. 

The eTA Fee

The eTA will cost applicants a $7 processing fee.  Individuals will have to submit payment electronically with their application. 

As well, a TRV-exempt foreign national’s application for a work permit or a study permit will constitute an application for an eTA.  As the GoC has recently indicated an intention to end POE work permit applications, this may constitute a larger application segment than one would currently think.  

Finally, individuals who are studying or working in Canada and who travel outside Canada when the eTA comes into effect will be required to obtain a eTA prior to reentering Canada.

Exemptions

The following TRV-exempt foreign nationals are exempt from the eTA requirement:

  • U.S. nationals;
  • Queen Elizabeth II and members of the Royal Family;
  • accredited diplomats;
  • those seeking to enter and remain in Canada as a member of a flight crew or to become a member of such a crew;
  • those seeking to transit through Canada after working, or to work, as a member of a flight crew if they possess a ticket for departure from Canada within 24 hours after their arrival in Canada;
  • civil aviation inspectors of a national aeronautical authority seeking to enter Canada in order to conduct inspections of the flight operation procedures or cabin safety of a commercial air carrier operating international flights;
  • an accredited represented or advisor to an aviation accident or incident;
  • residents of St. Pierre an Miquelon;
  • visiting forces travelling to Canada to carry out official duties as a member of the armed forces of a country designated under the Visiting Forces Act, unless they have been designated as a civilian component of those armed forces;
  • refuelling; and
  • foreign nationals who hold a TRV or permit.

It remains unclear how effective the eTA will be at achieving the GoC’s objective of preventing most inadmissible visa-exempt foreign nationals from arriving at Canadian airports.  In the Gazette, the GoC notes that in 2012-13 some 7,055 visa-exempt foreign nationals (0.24% of visa-exempt travellers) were found inadmissible for various reasons at air ports of entry when they arrived in Canada.  The Gazette did not mention how many of these individuals were American, and the cynic in me wonders if it is because the bulk majority of those found inadmissible were American.

As well, it is my experience that current information sharing between Canada and most of the world except for the United States is such that CIC would not know whether someone has a criminal record.  However, I anticipate that this will soon change as part of a global trend towards increased surveillance, information sharing, and monitoring of civilians by governments.

The Cost and Benefits of the eTA

According to the Gazette:

The total estimated costs for the analysis period (2015–2024) are $173.6 million in present value (PV) dollars. The total benefits resulting from the proposed amendments are estimated to be $174.7 million (PV). This results in a total net benefit of $1.1 million dollars (PV), which translates to an annualized average of $162,000 of net benefits per year.

In reaching the above figures, the GoC is assuming that it will collect an average of $23.1 million per year in eTA application fees.  As well, the GoC anticipates saving $1.8-million per year in costs associated with processing and removing inadmissible people to Canada.  According to the Gazette, the CBSA has estimated that the cost per inadmissible person ranges from an average of $398.00 – $798.00 depending on how long the individual is in detention. The eTA system will meanwhile cost $23.3-million to establish, and $19.5-million per annum to administer.

Other qualitative costs and benefits listed by the GoC in the Gazette include:

Benefits

Implementation of the eTA program would achieve Canada’s commitment to the Canada–U.S. shared vision for perimeter security and economic competitiveness, thereby accelerating the free flow of people and goods while maintaining the strength of the Canada–U.S. partnership.

It is expected that the eTA requirement would deter some inadmissible foreign nationals from applying because of the requirement to provide information prior to arrival.

The eTA program would provide CIC with the ability to gather data and track patterns of visa-exempt foreign nationals. Such tracking is currently not possible because no pre-screening is conducted on visa-exempt foreign nationals.

The eTA program would introduce a new tool which could in future permit a more nuanced and individualized risk assessment of foreign nationals than in possible through current visa requirements. Having the eTA program in place could be a consideration in future strategic discussion around the visa policy framework and changes in visa requirements.

Costs

The tourism industry may choose to incur marketing costs to advise those foreign nationals interested in travelling to Canada of eTA requirements.

While out of scope for CBA purposes, it is acknowledged that visitors to Canada from visa-exempt countries (exceptions not included) would be required to pay a fee and spend time obtaining an eTA prior to travel to Canada. For the vast majority, the process would take minutes and the fee should not be prohibitive.

It is acknowledged that there may be some short-term impacts on tourism associated with the transition to eTA; however, these impacts are not anticipated to lead to any permanent implications for tourism demand to Canada.

Travellers entering Canada at land and sea ports would not require an eTA. It is not anticipated that land and sea ports would experience a surge in demand because communication products would advise that all ports would continue to have a thorough inspection regime. It is not anticipated that travellers would switch their mode of transport to avoid the $7 fee. However, it is acknowledged that there may be an adjustment period as travellers are made aware that inspections would continue to be conducted at all ports of entry irrespective of the eTA requirement.

One cost that the GoC does not appear to have considered in the Gazette is the increased resources that CIC will need to process Temporary Resident Permits (“TRPs“) for inadmissible visa-exempt foreign nationals.  As well, presumably the new eTA regime will put an end to the practice of visa-exempt permanent residents with expired permanent resident cards (“PR Cards“) boarding planes and arriving in Canada without the CBSA discovering that they are permanent residents. While this will increase compliance with Canada’s residency requirement, it will also lead to increased Permanent Resident Travel Documents and Immigration Appeal Division appeals.

The Interactive Advance Passenger Information System

As noted in the Gazette, the CBSA is still developing its Interactive Advance Passenger Information (“IAPI“) system which will create the capacity to provide air carriers with a “board/no board” message on all travellers.  The eTA will be an electronic document issued to the traveller. No printed paper documents would be issued and a copy of the eTA would not be provided to air carriers. Therefore, will have to rely on the IAPI to enforce the eTA regime.  We will publish more information on the IAPI once the information is available. 

Conclusion

Although I think that the eTA represents an unfortunate continued trend since 9/11 towards increased borders and reduced mobility, the eTA will bring Canada into harmony with many other developed countries, including the United States.  However, it also continues a trend of moving applications from the POEs to visa posts abroad.  It is imperative that the GoC increases CIC’s resources in order to prevent further significant delays that this trend is causing.  The current norm is that applications submitted at POEs take minutes to process, while applications submitted to CIC take anywhere from weeks to months.  The current processing time for CIC to process a TRP application exceeds one year at many visa posts, while CBSA is generally able to issue one in under an hour.  Given that the eTA will likely result in an increase in TRP applications submitted to visa posts abroad, more resources are definitely needed.  

As well, although the GoC has promised a eTA processing time of a few minutes, the recent, frequent crashing of MyCIC and the 3rd Party Portal, which both facilitate online applications, is not comforting.