Employment & Labour Law 

The Entry/Exit Program is a joint initiative between Canada and the United States.  Implemented on June 30, 2013, it enables Canada Border Services Agency (“CBSA”) officers to collect information on foreign nationals (excluding U.S. citizens) who exited the country via land border crossing into the United States. 

Currently, the Customs Act[1] enables CBSA to record entries and exits via land border crossing for all travellers (including both Canadians and Americans), as well as entries by air.  CBSA is therefore able to maintain travel records which capture entries for all travellers by air and land, but only exits via land border crossings. 

Of course, as many travellers exit Canada by air, these travel records are largely incomplete.  However, CBSA’s access to traveller information will be further expanded as a result of Bill C-21, An Act to amend the Customs Act, which received Royal Assent on December 13, 2018.  Bill C-21 will enable Canada and the United States to exchange basic biographic entry data on all travellers entering into their respective countries.  Entries into one country will therefore indicate an exit from the other, and this information will be shared. 

CBSA and its United States counterpart, U.S. Customs and Border Protection, have entered into an information sharing memorandum of understanding, which includes safeguards and protections for the exchange of travellers’ biographic entry data.  The biographic data collected on each traveller during exits by land border crossing includes: (1) name, (2) date of birth, (3) nationality, (4) sex, (5) travel document type, (6) travel document number, (7) name of country that issued the travel document, (8) date and time of exit, and (9) name of land border crossing used during exit.  

Significantly, once the regulatory amendments and related information sharing arrangements are in effect (expected to take place in June 2020), CBSA will also be able to record exits by air for all travellers.  In this regard, exit information will be obtained directly from air carriers through passenger manifests. 

In summary, once fully implemented, Bill C-21 will enable CBSA to maintain accurate and increasingly complete travel records for all travellers.  More specifically, information on the date, time, flight information, and location of departure by air will soon be recorded for all travellers departing on outbound international flights, in addition to the biographic data noted above.  However, this information will not be shared with the United States under the current version of the joint Entry/Exit Program.

The stated purpose of the Entry/Exit Program, as well as CBSA’s broader ability to record the biographic data on travellers entering and exiting the country, is to maintain a strong and secure border.  Indeed, it does allow for the tracking of known high-risk travellers, and enables action on time sensitive situations, such as locating abducted children or runaways.  However, this information is also used in connection with the more common traveller.  Such routine uses of entry and exit data include:

• Identifying individuals who remain in Canada beyond their authorized period of stay;
• Determining whether applicants meet residency requirements for purposes of citizenship and permanent residency applications (including those applicants who seek to renew their permanent residence cards on an on-going basis); and
• Verifying travel dates for purposes of applying duty and tax exemptions.

Canadian citizens, permanent residents of Canada, as well as foreign nationals currently present in Canada, can request their Travel History Report from the CBSA under the Privacy Act.[2]

[1] R.S.C., 1985, c. 1 (2nd Supp.).

[2] R.S.C., 1985, c. P-21.

Many Canadians will recall the Severe Acute Respiratory Syndrome (SARS) outbreak of 2003. Now, some 17 years later, we are faced with yet another highly-contagious and potentially deadly respiratory virus – novel Coronavirus. Having spread to more than 27 countries, the World Health Organization declared it a global health emergency on January 30, 2020.   

The media has been littered with stories about how to recognize the symptoms and warnings of potential risks.  The question remains – what can we do to protect our workplaces?

Be Prepared

While the world struggles to grapple with this novel and deadly emerging virus, employers can take the following steps to prepare and protect their employees and workplaces and limit their own liability:

1. Ensuring company-wide best practices are up to date. Employers should maintain an up-to-date emergency contact list, provide hand sanitizer throughout the workplace, implement reasonable travel restrictions, and keep the lines of communication open about these practices.
2. Confirming what resources are available to assist employees who may have contracted Coronavirus. Employers should confirm whether their group STD coverage will cover employees who are home sick with Coronavirus, home looking after a family member with Coronavirus and/or employees who may not have Coronavirus but who are in quarantine.
3. Enacting temporary measures to protect employees.
   • Because Coronavirus can be confused with the regular flu in some cases, in order to ensure that employees who may have Coronavirus do not return to the workplace and infect other employees, employers may want to consider insisting on a medical note from employees who have been home with the flu, confirming that they are safe to return.
   • Employers may also consider implementing a temporary work from home policy.
   • Employers may want to consider asking visitors to the workplace to confirm in advance whether they have had flu-like symptoms or may have had contact with individuals infected with Coronavirus.
4. Understanding statutory obligations and protections. These protections relate to various considerations in the face of an outbreak:
   • Employers will want to know whether illness or quarantine-related absences are protected pursuant to applicable federal or provincial statutory leave provisions.
   • Employers will also want to be aware of their applicable federal or provincial statutory leave obligations toward employees who need to care for ill family members.
   • It will be important to understand employee health and safety rights pursuant to Occupational Health and Safety legislation, which may include the right of employees to refuse to attend work if concerned about their health.
   • Employers may want to refresh their familiarity with human rights laws which, among other things, prevent discrimination on the basis of ethnicity or disability.
5. Having a plan.
   • Employers may want to develop a plan for obtaining and implementing local health directives.
   • Such a plan should also address who would be responsible for issuing communications from the employer and how the employer will communicate with its employees in the event of an emergency.
   • In order to protect the work premises, the plan should include steps to ensure that the facility is secure in the event of a reduced staff or unanticipated shut down.

If you would like further information about the recommendations provided, the legislative protections in place in your region or practical steps to protect your workplace in the face of workplace health concerns, please contact members of our Employment and Labour Group.

Date and time:Start: February 11, 2020, 12:00 PM EDT

End: February 11, 2020, 1:00 PM EDT

This seminar is available in the following time zones:

12 a.m. – 1 p.m. EDT

10 a.m. – 11 a.m. MT

9 a.m. – 10 a.m. PT

This session is only available via webinar

CPD/CLE Accreditation

LSBC: This session is registered for 1 hour of CPD credit with the Law Society of British Columbia.

LSO: This program is eligible for up to 1 Substantive Hour with the Law Society of Ontario.

Barreau du Québec: An application for verification of eligibility has been submitted to the Barreau du Québec.

Join us for a complimentary 1 hour webinar where we’ll highlight and identify the changes in Employment and Labour law that you need to know about and the trends that can be expected to impact your workplace in 2020.

Topics will include:

• Tips for Avoiding Employment Liability in 2020
• Telecommuting: Considerations when Employees are Working Remotely
• Ending the Employment Relationship of Long Service Employees – Pensions, Benefits and Compensation Strategies
• Where are we going with notice periods?!

Please confirm your attendance by Friday, February 10, 2020.

Speakers

• Catherine P. Coulter, Counsel, Ottawa
• Alison D. Walsh, Partner, Edmonton
• Scott Sweatman, Partner, Vancouver
• Roxana Jangi, Senior Associate, Calgary

Questions

Please contact Justine Moller, Coordinator, Client Development and Events, at justine.moller@dentons.com or +1 416 863 4560.

Register now

Date and time: November 26, 2019

12 p.m. – 1 p.m. ET
10 a.m. – 11 a.m. MT
9 a.m. – 10 a.m. PT

This session is only available via webinar

LSBC: This session is registered for 1 hour of CPD credit with the Law Society of British Columbia.

LSO: This program is eligible for up to 1 Substantive Hour with the Law Society of Ontario.

Join us for a complimentary 1-hour webinar where we will highlight the changes you need to know about and identify the trends that we expect to affect your workplace in 2019.
Topics will include:

• Managing Harassment Investigations under the OHSA: Requirements and Pitfalls
• A Case Law Update on Sexual Harassment
• Creating Enforceable Contracts: Consideration in the Employment Context

Please confirm your attendance by Thursday, November 21.

Speakers

• Adrian Miedema, Partner, Toronto
• Cristina Wendel, Partner, Edmonton
• Kyle Isherwood, Associate, Toronto

Questions

Please contact Carla Vasquez, Events Manager, at carla.vasquez@dentons.com or +1 416 361 2377.

Register now

Date and time:
October 25, 2019, 8:30 AM EDT to October 25, 2019, 1:00 PM EDT

Location: 
Dentons Canada LLP77 King Street West
5th Floor 
Toronto, Ontario 
Canada

Dentons’ Labour, Employment and Pensions Group will be hosting a half-day seminar on emerging workplace and human resources issues on Friday, October 25, 2019. The following topics will be discussed:

• Overtime exemptions under the Employment Standards Act – Matthew Curtis
• Termination provisions: enforceability issues and tips for drafting – Pamela Chan Ebejer
• The changing landscape of independent and dependent contractor relationships – Craig Lawrence and Karina Pylypczuk
• Work permit options for multinational companies – Henry Chang and Jonathan Mor
• Managing harassment investigations under the Occupational Health and Safety Act: requirements and pitfalls – Adrian Miedema
• The duty to accommodate invisible disabilities – Chelsea Rasmussen
• Getting what you bargained for in wrongful dismissal settlements – Andy Pushalik
• How to handle employee resignations and retractions – Meaghen Russell and Larysa Workewych

HRPA accreditation

This program has been approved for 3 (CPD) hours under Section A of the Continuing professional development (CPD) Log of the Human Resource Professionals Association (HRPA).

CPD accreditation 

This program is eligible for 2 hours of substantive content required by the Law Society of Ontario.

Agenda

• 8:30 a.m. : Registration and breakfast
• 8:50 a.m. – 9:55 a.m. : Opening remarks and guest speaker
• 10:10 a.m. – 12:40 p.m. : Breakout sessions
• 12:40 p.m. : Lunch and networking

Questions

Please contact Melis Dimitriou, Client Development Coordinator, Events, at melis.dimitriou@dentons.com or +1 416 361 2336.

Dentons Canada LLP is committed to accessibility for persons with disabilities. Please contact us at toronto.events@dentons.com in advance of the event if you have any particular accommodation requirements. We will work with you to make appropriate arrangements.

The Start-Up Business Class began as a five-year pilot program targeting foreign entrepreneurs with the skills and potential to build businesses in Canada that: (a) were innovative, (b) could create jobs for Canadians, and (c) could compete on a global scale.  Entrepreneurs seeking permanent residence under the Start-Up Business Class were not required to personally invest any capital in the proposed business. 

Despite the relatively small number of cases processed during its initial five-year period, the Government of Canada considered the pilot program to be a success.  On July 18, 2017, IRCC announced its intention to establish a permanent Start-Up Business Class once the pilot program expired on March 31, 2018.  The final regulations for the permanent Start-Up Business Class became effective on April 11, 2018.

I am pleased to have played a small role in the creation of Canada’s Start-Up Business Class.  Near the end of 2011, I first raised the idea of a start-up visa with Mr. Jason Kenney, during a fundraiser for a local political candidate.  Mr. Kenny is currently the Premier of Alberta but, at the time, he was Canada’s Federal Minister of Citizenship, Immigration and Multiculturalism. 

Earlier that year, the StartUp Visa Act of 2011 was introduced in the United States Congress.  During my discussion with Mr. Kenny, I mentioned the proposed bill.  I also explained that, since it was unlikely to become law in the United States, Canada could attract entrepreneurs who might otherwise be destined for the United States by establishing a start-up visa program of its own. 

Mr. Kenney initially believed that a start-up visa program would simply be a variation of the existing Entrepreneur Class (which was ultimately terminated 2013).  However, I explained that a start-up visa program would differ from existing investor and entrepreneur options to the extent that the entrepreneur would not need to be the source of investment capital.  Such a program would enable foreign entrepreneurs who established start-up businesses using capital contributed by third parties, such as venture capital firms or angel investors, to seek permanent residence in Canada.  By the end of our discussion, he warmed up to the idea of a start-up visa program. 

On April 18, 2012, Mr. Kenney announced public consultations on the possible creation of a new program to attract immigrant entrepreneurs.  On January 24, 2013, he announced that the Government of Canada would launch a start-up visa program to recruit innovative immigrant entrepreneurs who would create new jobs and spur economic growth.  On March 30, 2013, Citizenship and Immigration Canada published Ministerial Instructions in the Canada Gazette, which formally established the new Start-Up Business Class. 

Read Henry J. Chang’s full article on the Start-Up Business Class here.

Immigration, Refugees and Citizenship Canada (IRCC), and Employment and Social Development Canada (ESDC), have proposed an amendment to the Immigration and Refugee Protection Regulations (IRPR), which would provide increased employment mobility to certain foreign workers under the Temporary Foreign Worker Program (TFWP). The proposed amendment was published on June 22, 2019, in Part I, Volume 153, Number 25 of the Canada Gazette.

Under the TFWP, to hire a foreign worker, employers must obtain an approved Labour Market Impact Assessment (LMIA) from ESDC, pursuant to which IRCC issues a work permit. The current program only authorizes the issuance of an employer-specific “closed” work permit. Foreign workers are, therefore, completely dependent on the employer noted on the work permit. Should a foreign worker wish to leave the current employer to take up new employment, a new LMIA and work permit would currently be required. This is a costly process, requiring a great deal of time and effort. Moreover, the costs and effort would primarily be required on the part of the new employer, which only makes finding such an opportunity more difficult.

As a result of the above, the TFWP in its current form, grants a great deal of power to employers. As many foreign workers are unlikely to find another employer willing to navigate the process of obtaining a new LMIA, these workers have little option but to endure difficult employment conditions. Considerations such as these have prompted IRCC and ESDC to propose the change.

The proposed amendment would introduce LMIAs and work permits that are occupation-specific instead of employer-specific. Occupations in Canada are defined and organized in accordance with the National Occupational Classification (NOC), which assigns each occupation a four-digit NOC code. Pursuant to the proposed amendment, the new LMIAs (and the resulting work permits) would instead be specific to a particular NOC code, and not to a specified employer. This would afford foreign workers increased employment mobility by allowing them to change employers without first obtaining a new LMIA or work permit, so long as they remained in the same occupation. This would remove the most significant barrier to finding suitable alternative employment, as new employers would not be burdened with the cost, time and efforts required to support a new LMIA application. With this barrier removed, the effect would be to restore some power to foreign workers, allowing them increased opportunity to leave undesirable employment situations.

Notably, the proposed change to the TFWP would not affect all streams of the LMIA. Instead, it is intended to target two LMIA streams that are used to employ the most vulnerable of temporary foreign workers; the Low-wage Stream and the Primary Agriculture Stream.

The High- or Low-wage Streams of the LMIA are defined by reference to a provincial or territorial median hourly wage, as published by ESDC. By way of example, the Ontario median hourly wage is currently CA$22.50. Therefore, positions in Ontario that offer a wage at or above the median hourly wage are processed under the High-wage stream, while positions offering a wage lower than this are processed under the Low-wage Stream.

As its name suggests, the Primary Agriculture Stream is used to employ foreign workers on a farm, nursery or greenhouse. Such employment will involve one of the following: the operation of agricultural machinery; obtaining raw animal products for market; or the processing of raw products, the planting, care, harvesting or preparation of crops, trees, sod or other plants for market.

The two above LMIA streams are primarily used to employ low-skilled foreign workers, as these positions require little-to-no education and provide workers with minimal wages. As a result, the proposed amendment to the IRPR should provide increased employment mobility, and therefore, power in the employer-employee relationship, to the most vulnerable of Canada’s temporary foreign workers.

It remains to be seen whether IRCC and ESDC will move forward with the amendment, and whether there is any appetite to provide similar changes for the LMIA streams used for more highly-skilled foreign workers.

1 p.m. – 2 p.m. ET
11 a.m. – 12 p.m. MT
10 a.m. – 11 a.m. PT

This session is only available via webinar

CPD/CLE Accreditation

LSBC: This session is registered for 1 hour of CPD credit with the Law Society of British Columbia.

LSO: This program is eligible for up to 1 Substantive Hour with the Law Society of Ontario.

Join us for a complimentary 1-hour webinar where we will highlight the changes you need to know about and identify the trends that we expect to affect your workplace in 2019.

Topics will include:

• Update on Quebec’s new draft regulation concerning personnel placement agencies and temporary foreign worker recruitment agencies
• The latest on workplace harassment and investigations
• Drug and alcohol testing checklist for employers

Speakers

Andy Pushalik, Partner, Toronto

April Kosten, Partner, Calgary

Ryan Martin, Associate, Montréal

Questions

Please contact Melis Dimitriou, Client Development Coordinator, Events, at melis.dimitriou@dentons.com or +1 416 361 2336.

Register now

In April 2019, the media reported that the United States Citizenship and Immigration Services (USCIS) had denied the naturalization applications of at least two lawful permanent residents who had worked for state-licensed cannabis businesses in the State of Colorado. The Mayor of Denver even wrote a letter to Attorney General William Barr, requesting formal guidance from the US Department of Justice, which would clarify and adjust policies that are negatively impacting the legal immigration status of individuals who work, or who have previously worked, in Colorado’s legal cannabis industry. 

The Attorney General has not responded to the Mayor of Denver. However, USCIS issued a Policy Alert a few weeks later, announcing that it had updated its Policy Manual to clarify this issue.¹ However, instead of resolving the issue, the updated guidance simply reiterates that cannabis-related activities will likely bar a lawful permanent residence of the United States from naturalization, even if those activities take place in a state that has legalized cannabis. 

This article was first published on dentons.com. Read the full article.

You are invited to the Dentons’ Labour, Employment and Pensions group half-day seminar on emerging workplace and human resources issues. Join us on May 31st at this complimentary seminar to discuss topics such as:

• Jail time for OHSA violations – Adrian Miedema
• Bill 66 and pay transparency legislative update – Kyle Isherwood
• Workplace investigations – Pam Chan Ebejer
• Workplace accommodation dos and don’ts – Karina Pylypczuk
• Just cause terminations – Matthew Curtis
• Wrongful dismissal settlements – Meaghen Russell
• What you need to know about employment class actions – Mark Evans and Andy Pushalik
• Key employment contract considerations – Chelsea Rasmussen

CHRP accreditation

This program may be eligible for recertification points.

CPD accreditation

This program may be eligible for substantive hours required by the Law Society of Ontario.

Agenda

Questions

Please contact Melis Dimitriou, Client Development Coordinator, Events at melis.dimitriou@dentons.com or +1 416 361 2336.

Dentons Canada LLP is committed to accessibility for persons with disabilities. Please contact us at toronto.events@dentons.com in advance of the event if you have any particular accommodation requirements. We will work with you to make appropriate arrangements.