Employer Obligations

It is inappropriate for an employer to ask a prospective employee where he/she is from, or to make other inquiries which would elicit information likely to answer indirectly those questions which, because of human rights legislation, employers are not permitted to ask directly.

However, it is permissible to ask the prospective employee at the application stage whether they are legally entitled to work in Canada, and to make any offer of employment conditional upon receipt and verification of the individual's Social Insurance Number and/or conditional on the verification or issuance of a Canadian work permit.

Employers in Canada are subject to reporting requirements under the Immigration and Refugee Protection Act in Canada. Canadian employers are required to verify if a prospective employee is legally entitled to work in Canada and whether the employee has a valid Social Insurance Number. Failure to do so could result in fines of up to $50,000, and possible detention for the employer and the prospective employee.

Where the Employer is Involved in Bringing a Foreign Worker to Canada:

There are situations where employers actively participate in bringing a foreign worker into the Canadian workplace. The most obvious example is where an employer seeks to hire or transfer individuals at the executive level or specialized employees with unique proprietary knowledge of products or processes.

Hiring foreign workers, at any level, raises complicated immigration law issues, which should be dealt with by a lawyer specialized in Immigration Law. The following is intended as a general outline of some of the issues raised and the process concerned. A lawyer specialized in Immigration Law should be consulted with respect to immigration issues.

A Work Permit is required for all foreign employees working in Canada on a temporary basis, unless the worker falls into one of the exemptions contained in the Immigration and Refugee Protection Regulations, NAFTA or GATS. It should be noted that when the tasks to be performed in Canada by the foreign worker are "productive" and/or will benefit both the Canadian corporation and the Canadian economy, it is likely that a Work Permit will be required.

Essentially, a Work Permit, which is inserted in the holder's passport, demonstrates and confirms that the foreign worker has permission to work legally in Canada.

The prerequisite to obtaining a Work Permit for the prospective foreign employee, is to get a confirmation of a temporary job offer issued by the regional centre ofHuman Resources and Skills Development Canada, which has jurisdiction over the territory where the foreign worker is to work.

For this purpose, the Canadian Government requires proof that the Canadian employer has attempted to hire a Canadian citizen or a permanent resident for the specific position. Thus, the Canadian employer must furnish tangible evidence of serious recruitment efforts, such as copies of a job offer published in major dailies in the region, and evidence confirming the interview of candidates and the reasons why they were not hired. Therefore, the Canadian Government must be convinced that the proposed foreign worker will not adversely affect the job opportunities of Canadians. The test is based on a "Canadians first" policy.

This time-consuming and expensive procedure may discourage hiring of foreign workers by certain employers. There are, however, some exemptions from this procedure.

Immigration and Refugee Protection Regulation, section 186:

Section 186 of the Immigration Regulations provides exemptions to the requirement to obtain a Work Permit for the following categories of people:

• A business visitor - Section 186a;
• A foreign representative, (consular officer, representative or official of a country other than Canada, of the United Nations or any of its agencies or of any international organization of which Canada is a member) - Section 186b;
• A foreign national who is a family member of a foreign representative in Canada - Section186c;
• Military Personnel - Section 186d;
• An officer of a foreign government - Section 186e;
• American cross-border maritime law enforcement officers - Section 186e.1;
• An in-flight security officer employed by a foreign government - Section 186e.2;
• A full-time student, on the campus of the university or college at which they are a full-time student - Section 186f;
• A performing artist appearing alone or in a group in an artistic performance - Section 186g;
• A participant in sports activities or events in Canada - Section 186h;
• An employee of a foreign news company - Section 186i;
• A guest speaker - Section 186j;
• A member of the executive of a committee that is organizing a convention or meeting in Canada or as a member of the administrative support staff of such a committee - Section 186k;
• Aperson responsible for assisting a congregation or group in the achievement of its spiritual goals and whose main duties are to preach doctrine, perform functions related to gatherings of the congregation or group or provide spiritual counseling - Section 186l;
• A judge, referee or similar official at an international amateur sports competition, an international cultural or artistic event or competition or an animal or agricultural competition - Section 186m;
• An examiner or evaluator of research proposals, academic projects or programs or university theses - Section 186n;
• An expert witness - Section 186o;
• A student in a health field, a medical elective or clinical clerk at a medical teaching institution in Canada - Section 186p;
• A civil aviation inspector - Section 186q;
• An accredited representative or adviser participating in an aviation accident or incident investigation - Section 186r;
• A member of a crew who is employed by a foreign company aboard a means of transportation - Section 186s;
• A provider of emergency services - Section 186t; or
• An individual waiting for a decision on an application made by them to remain in Canada, if they have remained in Canada after the expiry of their work permit and they have continued to comply with the conditions set out on the expired work permit, other than the expiry date - Section 186u.

North American Free Trade Agreement :

The North American Free Trade Agreement ("NAFTA") provides several exemptions to the Work Permit provisions of the Immigration and Refugee Protection Act. Essentially, NAFTA allows a foreign worker entry into Canada without a confirmation of temporary job offer from Human Resources and Skills Development Canada but they will still be required to apply for a Work Permit (other than in the case of those defined as "business visitors" - see below). NAFTA gives priority to citizens of the United States and Mexico who are offered employment in Canada and fall into any one of the following categories:

1. business visitors;
2. professionals;
3. intra-company transferees; and
4. traders and investors. 

These terms are defined in NAFTA, and are accompanied by certain terms and conditions. A lawyer specialized in Immigration Law should be consulted to deal with these issues.

General Agreement on Trade in Services:

The General Agreement on Trade in Services ("GATS") also allows a foreign worker entry into Canada without a confirmation of temporary job offer from Human Resources and Skills Development Canada. GATS is similar to NAFTA in that it provides for simplified and expedited procedures for certain classes of foreign workers to enter Canada; however, it applies to many more countries. GATS applies to individuals seeking to enter Canada to engage in business in one of the following areas: business services; communications services; construction services; distribution services; environmental services; financial services; tourism and travel related services; or transport services. Each of these terms are defined in GATS, and are subject to varying terms and conditions which should be consulted.

Conclusion:

Regardless of the enactment under which a foreign employee is brought into Canada, the commitment is usually time-limited. The applicable time limitations should be considered prior to entering into any employment contract with the foreign employee. It should also be noted that it is possible to extend many of the time limits, usually by way of applying for renewals. In some cases, it may be more expedient to simultaneously apply for permanent resident status.

As noted above, immigration law is extremely specialized and is fraught with many statutes, regulations, treaties, and unwritten rules. For this reason, employers should consult a lawyer specialized in Immigration Law prior to hiring any foreign workers - at any level.