In this presentation, FMC's Andrea Raso Amer and Phebe Chan, readers can get an in-depth summary about doing business in Canada. The presentation addresses issues such as Labour and Employment Law, Canadian Immigration, Business Immigration, Labour Market Opinions and Provincial Nominee Programs.

1. Doing Business in Canada: People Issues
December 1, 2011
Andrea Raso Amer Phebe Chan
1

2. Labour & Employment Law
2

3. Labour & Employment Law:
Key Differences Between U.S. and Canada
1. No “at‐will” employment
2. Constructive Dismissal
3. Overtime entitlement
4. Leaves of absence
5. Workers Compensation
3

4. Key Differences Between U.S. and Canada cont’d
6. Group terminations
7. Drug and alcohol testing
8. Benefits
9. Successor employer
10. Restrictive Covenants
4

5. Overview
• Provincially governed (except banks, transport,
telecommunications)
• Minimum employment standards governed by
legislation
• Labour relations governed by separate legislation
5

6. 1. No “at‐will” employment
• Minimum notice pursuant to employment
standards legislation applies to everyone (e.g. one
week of notice per year of service to a maximum of
8 weeks)
• But, common law provides more
• No formula: Age; length of service; character of
employment; availability of alternative
employment; any other factor court considers
relevant
6

7. To avoid common law notice:
* Employment Contract
DO – Carefully state the amount of notice to be
provided on terminations, which must be at
least minimum employment standards
DO – State that no further amounts owing pursuant
to common law
DO – Address benefits
7

8. “Cause” for termination
• Very high threshold
• No “near cause”
8

9. 2. Constructive dismissal
• A change to a fundamental term or condition of
employment
• Common law notice owing
DO – Provide as much notice as possible if changing a
fundamental term or condition of employment
DO – Provide for flexibility in job duties where possible
9

10. 3. Overtime entitlement
• “Salaried” employees not necessarily exempt
from provincially legislated overtime
• Managerial and high tech exclusions
DO – State whether overtime applies in contract
DO – Avoid setting hours of work for managers
and high tech professionals
10

11. 4. Leaves of Absence
• Legislated leaves of absence include:
pregnancy leave – maximum 17 weeks
parental leave – maximum 35 weeks
• Family responsibility/compassionate care
leaves
• No statutory “sick leave” but disability
benefits plan must be considered
11

12. 5. Workers Compensation
• Administered by provincial governments
DO – Any entity with one or more employees in
Canada must register with Workers
Compensation Boards
12

13. 6. Group Termination
• Layoffs of 50 or more employees
DO – Provide extended notice pursuant to
provincial statute
DO – Notify the government Director responsible
for Employment Standards
13

14. 7. Drug and Alcohol Testing
• Pre‐employment and random testing is rare – only for
highly safety‐sensitive positions in some provinces
• Allowed for accidents or near misses where a
“reasonable suspicion” of impairment
• Allowed where employee has a history as party of terms
of employment
DO – Have a drug and alcohol policy compliant with laws of the
province
DO – Consider duty to accommodate to point of “undue
hardship” pursuant to human rights legislation
14

15. 8. Benefits
• Government funded basic health care
• Not required by law but many employers
offer: extended health; dental; AD&D; life;
disability/income replacement
15

16. 9. Successor Employer
• Broad definition of a “sale of a business”
e.g. asset purchase; lease; purchase from a
trustee in bankruptcy
• Become bound to any existing collective
agreement
• Employees retain original service date with the
vendor
DO – Seek a summary of vendor’s employees’ service
dates and any contract terms regarding termination
16

17. 10. Restrictive Covenants
1. Confidentiality
2. Non‐solicitation
3. Non‐competition
* Courts will not blue pencil/amend clauses to make them
enforceable
17

18. Governing Bodies
• Employment Standards Tribunals
• Human Rights Commissions/Tribunals
• Labour Relations Boards
• Workers Compensation Boards
• Supreme/Superior Courts or Courts of Queen’s Bench
18

19. “DOs”
Contractually:
DO – Carefully state the amount of notice to be
provided on terminations, which must be at
least minimum employment standards
DO – State that no further amounts are owing
pursuant to common law
DO – Address benefits on termination
19

20. “DOs” cont’d
DO – Provide for flexibility in job duties where
possible
DO – State whether overtime applies
DO – Avoid setting hours of work for managers
and high tech professionals
20

21. “DOs” cont’d
DO – Give as much notice as possible of a job
change
DO – Any entity with one or more employees in
Canada must register with Workers
Compensation Boards
DO – Provide extended notice pursuant to
provincial statute if terminating 50 or more
employees and notify the government
Director responsible for Employment
Standards
21

22. “DOs” cont’d
DO – Have a drug and alcohol policy compliant with
laws of the province
DO – Consider duty to accommodate to point of
“undue hardship” pursuant to human rights
legislation
DO – On a corporate transaction, seek a summary
of vendor’s employees’ service dates and any
contract terms regarding termination
22

23. Introduction
Canadian Immigration – How does it affect you?
23

24. Canadian Immigration
• About 1 in 5 Canadians were born outside Canada
• Only 44% of Canadians say they follow immigration issues
closely, versus 62% of Americans and 69% of Europeans
• Canadian immigration work involves technically challenging
and time sensitive strategizing within an evolving policy
framework, across various time‐zones and differing
administrative regimes.
24

25. Recent Trends
• Citizenship and Immigration
Canada:
– Approximately 10 to 30 news
releases per month
– Over 35 statements in 2011
– Over 10 speeches made
in 2011
– 11 Operational Bulletins
this month
25

26. Canadian Immigration – The Future
“By the 2020s, all population growth is expected to come from
immigration, and many sectors of the economy (transport,
primary industry, construction) will be dependent on foreign
workers.”
‐ Schroder Investment Management, 2011
26

27. Canadian Immigration – The Future
• Today, 70% of people are at working age
• In 25 years, 60% of people will be at working age
• By 2025, Canada faces a predicted national shortage of over 1
million qualified workers
27

28. Americans in Canada
• The number of Americans applying in Canada for temporary
work visas doubled between 2008 and 2010
• Americans form the second largest group of temporary
workers in Canada (Filipinos form the largest)
• Americans have easier entry and application submission in
Canada as the US is a visa‐exempt country
28

29. Canadian Immigration Introduction
Status Categories, Government Departments,
Law, Regulations, and Visa Requirements
29

30. Status Categories
• Temporary Resident: is given temporary permission to visit,
reside, study and/or work in Canada
• Permanent Resident: has the right to reside in Canada
permanently, does not have the ability to vote and run for
office or to carry a Canadian passport
• Citizen: is born in Canada or naturalized in Canada
30

31. Government Departments
• Canada Border Services Agency (CBSA): refers to customs and
immigration offices/officers at the ports of entry (protects borders)
• Citizenship and Immigration Canada (CIC): refers to immigration
departments within Canadian visa offices (i.e., Consulates and embassies)
and in‐land offices/processing centres (provides the privilege of entering
Canada)
• Service Canada (includes officers of Human Resources and Social
Development Canada – HRSDC): responsible for determining labour
shortages and issuing Labour Market Opinion confirmations (protects jobs)
31

32. Immigration and Refugee Protection Act (SC 2001, c.27)
and Regulations (SOR/2002‐227)
• Canadian immigration is governed by the Canadian
Immigration and Refugee Protection Act (“IRPA”) and
Regulations
• Like the Immigration and Naturalization Act in the USA, the
IRPA and Regulations are interpreted by government officials
in accordance with:
– Operational Manuals
– Operational Bulletins
– Federal, Provincial and internal policies
32

33. Visa Requirements
• Citizens of certain countries will require Temporary Resident
Visas (“TRV”) before seeking entry (under any circumstances)
to Canada (i.e. Philippines, China, India)
• Citizens of visa‐exempt countries (i.e. US, UK, Hong Kong) may
seek entry to Canada without first obtaining a visa
• Biometric passports allow some visa‐requiring foreign
nationals the ability to bypass the requirement (Polish and
Lithuania citizens)
33

34. Visa Requirements (cont’d)
• Where a visa‐required individual is seeking entry to Canada
for more than 6 months (as a visitor, student or worker), a
medical examination may also be required if the individual has
spent more than 6 months out of the last 12 months in a
designated territory
•Other information, like police certificates/clearances from
any countries where the individual has spent more than 6
months, may also be required prior to visa issuance
34

35. Business Immigration
Business Visitors
35

36. Business Visitors ‐ IRPA Regulations
•No work permit required
•R.186. A foreign national may work in Canada without a work
permit (a) as a business visitor to Canada within the meaning of
section 187;
•Business visitors
•R.187. (1) For the purposes of paragraph 186(a), a business
visitor to Canada is a foreign national who is described in
subsection (2) or who seeks to engage in international business
activities in Canada without directly entering the Canadian
labour market.
36

37. • Specific cases
• (2) The following foreign nationals are business visitors:
• (a) foreign nationals purchasing Canadian goods or services for
a foreign business or government, or receiving training or
familiarization in respect of such goods or services;
• (b) foreign nationals receiving or giving training within a
Canadian parent or subsidiary of the corporation that employs
them outside Canada, if any production of goods or services
that results from the training is incidental; and
• (c) foreign nationals representing a foreign business or
government for the purpose of selling goods for that business
or government, if the foreign national is not engaged in
making sales to the general public in Canada.
37

38. • Factors
• (3) For the purpose of subsection (1), a foreign national seeks
to engage in international business activities in Canada
without directly entering the Canadian labour market only if
• (a) the primary source of remuneration for the business
activities is outside Canada; and
• (b) the principal place of business and actual place of accrual
of profits remain predominately outside Canada.
38

39. Business Visitors ‐ Operational Bulletin 306
• Visa officers are now requested to encourage frequent
in‐bound travelers to apply for multiple entry visas
• Visa officers are to issue multiple entry visas for as long a
validity period as possible (up to 10 years minus 1 month)
• Applicant must be known to the visa office and have history of
returning to their home country after traveling to Canada
39

40. Business Visitors
• Do not require work permits to conduct international business
activity in Canada
• May still require a Temporary Resident Visa
• “Apply” for entry as a Business Visitor each time they enter
Canada, even if they have a multiple‐entry visa
• Have a maximum 6 month stay, which is extendable
40

41. Business Visitor ‐ Conditions
1. Must have no intent to enter the Canadian labour market
2. Activity in Canada must be international in scope
3. Primary source of remuneration must be outside of
Canada
4. Principal place of business is outside Canada
5. Accrual of profits of employers must be outside of Canada
41

42. Business Visitors
• Examples include:
– Attending business meetings
– Providing or receiving training
– Negotiating contracts
– Meeting potential investors
42

43. Business Visitors (cont’d)
• More examples:
– Attending seminars and conferences
– “Hands off” monitoring or reviewing of business activities
– Recruitment activities (e.g., hiring Canadian workers for
new Canadian office location)
– After sales service pursuant to a Sales Agreement
43

44. Initial Assessment Questions
1. What are their current job titles and activities?
2. What are their anticipated Canadian job titles and activities?
3. What is their work experience in relation to the anticipated
Canadian activities?
4. Are there any applicable agreement clauses between the
entities regarding travel to, or subsequent service in,
Canada?
5. Any previous problems entering Canada (for any purpose)?
6. Any criminal charges anywhere in the world?
7. Any serious or contagious medical conditions?
44

45. Business Visitor ‐ Tips for Entry
• Watch your language!
• Bring supporting documents (i.e. Roundtrip ticket, hotel
booking, contacts/agreements, certificates, invitations)
• Evaluate the implications of any promotional print materials,
models, exhibits, or electronic information on cell, laptop, etc.
• Be cooperative and ask for a supervisor
• Get advice and have a lawyer’s phone number handy
45

46. Labour Market Opinions
46

47. Labour Market Opinions (LMO)
• Most work permit applications will first require an LMO.
• Granted by Service Canada, it is ultimately a determination (or
a “confirmation”) that the skills of the foreign worker are
required in the Canadian labour market for the job position,
not the candidate.
• Factors which affect the determination of the LMO are set out
under IRPA Regulations. They ensure that the employment of
the foreign worker will not adversely affect the employment
opportunities of Canadian citizens / permanent residents.
47

48. Labour Market Opinions (LMO) (cont’d)
• Specifically, Service Canada considers:
– Whether the employment of the foreign national will result in direct
job creation or job retention for Canadian citizens or permanent
residents;
– Whether the employment of the foreign national will result in transfer
of skills and knowledge for the benefit of Canadian citizens or
permanent residents;
– Whether the employment of the foreign national will fill a labour
shortage;
48

49. Labour Market Opinions (LMO) (cont’d)
– Whether the terms of employment offered to the foreign national are
consistent with the prevailing wage rate for the occupation and
working conditions;
– Whether reasonable efforts were made to hire or train Canadian
citizens or permanent residents; and
– Whether the employment of the foreign national will adversely affect
the settlement of any labour dispute or the employment of any person
involved in the dispute.
49

50. Labour Market Opinions (LMO) (cont’d)
• The employer makes the application for a specific job position,
not the foreign worker.
• Current processing times (approximate) for LMOs with Service
Canada:
– Ontario: 8 weeks
– British Columbia: 10 weeks
– Alberta, Saskatchewan, Manitoba: up to 12 weeks
• Once the LMO Confirmation has been obtained, the foreign
worker may then apply for a work permit with CIC at a
Canadian Visa Office abroad or, if applicable, at a port of entry.
50

51. Business Immigration
Work Permits
51

52. Work Permits
• “Work” is defined in the Immigration and Refugee Protection
Act (IRPA) in Regulation 2, as follows:
“An activity for which wages are paid or commission
is earned, OR that is in direct competition
with the activities of Canadian citizens or
permanent residents in the Canadian labour market.”
• Is the Foreign Worker providing a service for which one would
normally pay a Canadian / Permanent Resident to perform?
52

53. Work Permits (cont’d)
• Temporary in nature (usually 1 year in recent times
and previously up to 3 years)
• Usually, employer, position and/or location specific
(exceptions include: work permits issued to spouses
of work permit holders or study permit holders, work
permits issued to applicants awaiting in‐land spousal
sponsorship applications, youth exchange programs,
or refugee applications)
53

54. Work Permits (cont’d)
• The foreign worker must depart from Canada upon expiry
(unless other measures are put into place before expiry date)
• Continuing the work permit – no real “extension” of most work
permits is allowed
• Implied status allows working while an application is
processing in Canada
54

55. Work Permits – LMO Exemptions
– International Treaties/ Agreements:
•GATS, NAFTA, Chile, Peru, Columbia, etc.
– IT Workers Program
– Post‐graduates (who have obtained student permits and
graduated from Canadian post‐secondary institution)
55

56. Work Permits – LMO Exemptions (cont’d)
– International students
– Working Holiday Programs / Youth Exchange Programs
– Spouses of work permit holders (with exceptions)
– “Significant Benefits” category
56

57. LMO Exempt Professionals
• NAFTA, GATS and other Free Trade Agreements allow for
citizens of these countries to obtain work permits without an
LMO if all these exist:
– The position offered in Canada falls under one of the listed
professional categories (include: engineers, geologists, accountants)
and if applicable, licensing is obtained for working in the profession
– The applicant possesses the minimum education or work experience
requirement for that category (usually, a Bachelors degree and/or
applicable licensure – no equivalencies)
– A job offer from a Canadian company
57

58. LMO Exempt Intra‐Company
Transferees
• Both the Immigration and Refugee Protection Act
(IRPA) and international treaties allow for the transfer
of personnel to Canada from related foreign entities:
– Canadian company and foreign company with which the
foreign worker is currently employed must possess proper
corporation relationship (ie. parent, subsidiary, affiliate by
common ownership)
58

59. LMO Exempt Intra‐Company Transferees
(cont’d)
– Foreign worker must fall within the senior managerial (NOT
front‐line supervisors), executive/ essential function or
“specialized knowledge” categories and be transferring to
such a position
– Foreign worker must have been employed with foreign
entity for at least 1 continuous year within the past 3 years
59

60. LMO Exempt IT Workers (BC Only)
• Temporary facilitated process for Information Technology
specialists in British Columbia
– Under the facilitated process, employers wanting to hire foreign
workers in any of the 7 IT occupations covered under this process, are
deemed to have an implied Labour Market Opinion.
– Please note that the company must notify Service Canada and the
Ministry of Jobs, Innovation, and Tourism of their intention to hire an
an individual as under this program.
– Program is scheduled to expire on December 31, 2011
60

61. LMO Exempt IT Workers (BC Only) (cont’d)
• Senior Animation Effects Editor (NOC 9990.1)
• Embedded Systems Software Designer (NOC 9990.2)
• MIS Software Designer (NOC 9990.3)
• Multimedia Software Developer (NOC 9990.4)
• Software Developer—Services (NOC 9990.5)
• Software Products Developer (NOC 9990.6)
• Telecommunications Software Designer (NOC 9990.7)
61

62. LMO Exempt Post‐Graduate Work Permits
• Foreign students who have obtained study permits to study in
Canada and graduate from a Canadian post‐secondary
institution may apply for post‐graduate work permits to work
in a position NOT necessarily related to their field of study.
– Minimum of 8 months of study
– Must apply within 90 days of graduation or date of official transcript
– Length of work permit ranges from 8 months to 3 years
– Processing times are very short
62

63. International Student Off‐campus Permits
• Allows international students studying in Canadian post‐
secondary institution to work off‐campus:
– Must possess a valid study permit and comply with all eligibility
requirements and restrictions
– Must have completed at least 6 months of past 12 months full time
study
– Must have been, and continue to be, registered as full‐time students at
a participating institution in a program other than ESL/FSL and
continue to fulfill the terms and conditions of their study permit and
work permit, as applicable
– Must have maintained satisfactory academic standing in their specific
program of study
63

64. LMO Exempt Working Holiday or
Youth Exchange Programs
• Apply from the country of citizenship outside Canada which
usually has a reciprocal agreement
• Likely only one year validity
• This work permit is usually not extendable
• Issued an open work permit which allows the holder to accept
any job with any employer
64

65. Open Work Permits for Family Members
(BC Only)
• Spouses, common‐law partners and working‐age
dependents of most temporary foreign workers will be eligible
to obtain an open work permit in British Columbia
• This expands the federal open work permit program only for
spouses of students or skilled workers
• Test pilot program ends in February 15, 2013 with up to 1800
work permits to be granted
65

66. LMO Exempt Canadian “Significant”
Interest Work Permits
• Significant Benefits to Canada
– R.205 covers international agreements, reciprocal
employment agreements, research, educational
and training work, as well as public policy reasons
– Specifically, R. 205(a) allows for entry of foreign
nationals who would create or maintain significant
social, cultural or economic benefits or
opportunities for Canadian citizens or permanent
residents.
66

67. Other LMO Exempt Work Permits
• PNP nominated individuals
• Charitable or religious workers
• Live‐in caregivers in Canada
• In‐Canada spousal or common‐law applicants
• Refugee claimants
• Exchange professors or visiting lecturers
• Seasonal agricultural workers from Jamaica
• Free‐trade Traders or Investors
67

68. Business Immigration
Temporary Foreign Workers
68

69. Temporary Foreign Workers
• Under the Temporary Foreign Worker Program (“TFWP”),
people come to Canada on a temporary work visas to fill
labour shortages
• Workers have a fixed‐term contract that specifies the
occupation, employer and place they must work
• TFWs are not immigrants in the sense that many are not
eligible to apply for permanent residence in Canada once their
work permits expire
69

70. Temporary Foreign Workers (cont’d)
Top source countries for TFWs in Canada 2000‐2009:
70

71. Temporary Foreign Workers (cont’d)
• Changes to the TFWP effective as of April 1, 2011:
– A more rigorous assessment of the genuineness of the job offer;
– A 2‐year ban for employers who have violated contract agreements for
wages and working conditions; and
– A limit of 4 years that a temporary foreign worker may stay in Canada
and another 4 years gap before applying for another temporary work
visa.
• If an employer has made a job offer to a worker who has
reached or is close to reaching the 4‐year cumulative duration
limit, the work permit application may be refused or the
duration of the work permit may be limited
71

72. Tips for Temporary Foreign Workers
• TFWs should keep thorough records to document the time
they have spent working in Canada
• Worker must be able to provide to the CIC or CBSA officer
documents that prove there were breaks from work during the
time period covered by their previous work permit
• Examples of legitimate breaks from work:
– Extended unpaid leave
– Parental leave
– Periods of unemployment
• After a TFW has reached their 4‐year cumulative limit, they will
not be granted another one in Canada for an additional 4 years
(apply for PR)
72

73. Tips for Temporary Foreign Workers (cont'd)
• Some workers will be exempt from the cumulative 4‐year
duration regulation:
– TFWs in managerial or professional occupations
– TFWs who have applied for permanent residence and
received certain documents per the category
– TFWs are exempt from the Labour Market Opinion process
– Consider applying for Permanent Residency immediately or
after 1 or 2 years as a Temporary Foreign Worker
73

74. Provincial Nominee Programs
An overview and why it is relevant to you
74

75. Provincial Nominee Program
• PNPs accelerate the Permanent Resident and work permit
application process for skilled and/or experienced workers,
experienced business persons and their family members who
want to settle in that province or territory permanently
• Provinces and territories enter into a memorandum of
understanding with the Federal government for a quota of
Permanent Residence nominees.
• Each province is given the freedom to determine the key
priorities and structure their PNP in accordance with such
goals.
75

76. PNP Awareness – BC case study
• For example, in BC, skilled workers, health professionals,
international students and post‐graduates can be nominated
for expedited permanent residency
• Once nominated, an LMO‐exempt work permit can be granted
• BC nominees in the occupation stream become aware of the
program through:
– Employers (22%)
– Immigration lawyers (22%)
– Other BC PNP applicants (17%)
– Other (20%)
76

77. PNP ‐ Relevance
• Available in all provinces but Quebec and Nunavut
• Applicants receive expedited permanent residency
• Applicants can obtain a work permit within 1‐3
months depending on the Province or Territory
• PNPs help meet specific needs and priorities in the
Province so it is region specific and sympathetic
• Advocacy for policy change is possible
77

78. Thank you
Andrea Raso Amer
+1 604 622 5152
andrea.rasoamer@fmc‐law.com
Phebe Chan
+1 604 691 6414
phebe.chan@fmc‐law.com

79. The preceding presentation contains information and examples
of issues you should know about if you are looking to do Business
in Canada. If you are faced with one of these issues, please retain
professional assistance as each situation is unique.