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Common Examples of Non-Compliance | dRN Law LLP

Common Examples of Non-Compliance

Frequent Business Travellers

Some foreign nationals are eligible for admission to Canada as “business visitors” if they are entering Canada solely for the purpose of undertaking permissible business visitor activities. In which case, they do not require a work permit for the purpose of their visit to Canada.

If a foreign national will be undertaking any activities in Canada which are considered to be “work” according to Canadian immigration laws and they are not eligible for a work permit exemption, they will require a Canadian work permit regardless of the duration of their stay in Canada, the fact that a foreign entity is paying their salary, or the fact that there is no tax equalization. 

The term “work” is broadly defined as “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”.  

It is within the Border Services Officer’s discretion as to whether or not they consider a foreign national to be a genuine business visitor seeking admission to Canada to undertake permissible business visitor activities. Further, the onus is on the foreign national to demonstrate that they qualify for admission to Canada as a business visitor. Accordingly, many Canadian corporations provide a letter of invitation in support of foreign employee’s application for admission to Canada as a business visitor.

It is an offence for a foreign national to work in Canada without the proper authorization to do so (e.g. a valid work permit). It is also an offence for a foreign national to misrepresent or provide false or misleading information to the Canada Border Services Agency (CBSA) and for an employer to counsel, induce, aid, or abet a foreign national to misrepresent or provide false or misleading information to the CBSA. 

If a foreign national presents a letter of invitation to the CBSA in support of their application for admission to Canada as a business visitor which is inaccurate and / or misleading, the foreign employee and / or the employer may be liable for misrepresentation and / or unlawfully working in Canada.

We have found that many employers (usually HR personnel acting on behalf of the employer) are incorrectly assessing that a foreign employee is eligible for admission to Canada as a business visitor when they require a work permit for the purpose of their visit to Canada. Further, we have found that many employers are providing a template letter of invitation to these foreign employees which does not accurately reflect the purpose of their visit to Canada and their activities while in Canada. 

Third Party Vendors and Independent Contractors

As previously mentioned, it is an offence for a foreign national to work in Canada without the proper authorization to do so (e.g. a valid Canadian work permit). If an employer fails to exercise “due diligence” to ensure that a foreign national has proper authorization to work in Canada, it will be deemed to know that they are not authorized to work in Canada.

Unfortunately, the term “employer” is not currently defined in Canadian immigration law. Therefore, it is open to interpretation that the term “employer” includes a company which does not directly employ or pay wages to a foreign national but benefits from and / or directs their work in Canada.

Accordingly, a company could be held liable for third party vendors and independent contractors working on site, in their corporate office, or in support of their operations without proper authorization to undertake the said work in Canada.

Despite this risk, we have found that many Canadian corporations do not have adequate internal processes in place to verify that its third party vendors and independent contractors have the proper authorization to work in Canada as they dangerously consider these actions to be the responsibility of its third party vendors and independent contractors themselves. 

That being said, we are seeing an increasing number of Canadian corporations taking responsibility for the Canadian immigration needs of its third party vendors and independent contractors, amending their standard form sales agreements and purchase orders to include a provision specifically with respect to Canadian immigration compliance, and implementing new internal procedures to verify that its third party vendors and independent contractors have the proper authorization to work in Canada before they attend their corporate offices, worksites, or operations.