Employment & Labour Law 

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.

When criminal lawyers represent their clients, they may not always consider the immigration implications of the case. However, unless their client is a Canadian citizen, many criminal offences will have potentially adverse consequences. A brief discussion of immigration consequences arising from Canadian criminal offences is provided below.

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

During the 115th United States Congress, several Bills were introduced to legalize marijuana at the federal level. The Bills that received the most attention were: (1) the Strengthening the Tenth Amendment Through Entrusting States Act (STATES Act); (2) Marijuana Justice Act of 2017/Marijuana Justice Act of 2018 (Marijuana Justice Act); and (3) the Marijuana Freedom and Opportunity Act (Marijuana Freedom Act). However, when the 115th United States Congress ended on January 3, 2019, these three Bills (collectively, the Congressional Bills) died.

The Congressional Bills must be reintroduced in the 116th United States Congress before they may be considered again. Assuming that all three are eventually reintroduced (without change) during the 116th United States Congress, an analysis of how they might affect the ability of foreign nationals (i.e., individuals other than US citizens) to enter the United States is provided below. 

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

As you will recall, the Pay Transparency Act, 2018 was passed by the previous Ontario government and was scheduled to come into effect on January 1, 2019. In fall 2018, the current administration postponed the effective date indefinitely, leading many to speculate that the legislation would not come into force.

However, we may yet see pay transparency legislation in Ontario. In February 2019, the Ministry of Labour opened public consultations concerning the reporting requirements of the Pay Transparency Act. These consultations closed on April 5, 2019.

As a reminder, the Pay Transparency Act includes the following key concepts:

Employers will not be allowed to ask for compensation history from a job applicant or through an agent.

Employers will be required to include the expected compensation or range for a position in all publicly advertised job postings.

Reprisals by employers will be prohibited against employees who disclose, inquire about or discuss compensation.

Employers with 100 or more employees would be required (this would be phased in over time) to submit and post a pay transparency report annually, which includes information about the employer’s workforce and differences in compensation between male and female employees.

The consultation paper asks for submissions on the following issues:

Because hourly wage gaps alone would not capture all aspects of compensation differences between males and females, what additional wage gap calculation should be required in order to create a more accurate picture – for example, bonuses, overtime pay, commissions?

What reporting period do employers prefer to use to calculate average and median hourly gender wage gaps – for example, calendar year, a prescribed period such as a pay period or specific week, fiscal year, etc.?

Do employers with 100 or more employees currently have all the information they would need to calculate the organization’s median and hourly gender wage gaps for a specified period?

How much do employers with 100 or more employees estimate the cost of pay transparency reporting will be with respect to IT and software costs, personnel costs and other costs?

How many hours do employers with 100 or more employees anticipate that pay transparency reporting will take in total?

We will update our readers once the government issues the results of the consultation process.

As of January 1, 2019, the federal government and the provinces of Ontario, Manitoba and Nova Scotia are at various stages of introducing accessibility laws. Canada is a signatory to the United Nations Convention on the Rights of Persons with Disabilities and as such has agreed to take appropriate measures to achieve accessibility and to develop and monitor minimum accessibility standards. Here is a snapshot of the current situation across the country.

Ontario

The Accessibility for Ontarians with Disabilities Act (AODA) is fully operational and, regardless of the size of your organization, as long as you have one or more employees in Ontario, your organization should have fulfilled the general accessibility requirements, complied with the accessible customer service standard, the employment standard, the design of public space standard and information and communication requirements (with the exception of websites).  This blog post does not address the education and public transportation sectors.

Ongoing obligations include training of staff on the Human Rights Code disability provisions and the AODA whenever new staff are hired or your policies change. Employers with 20 or more employees in Ontario must also report compliance on the Service Ontario website every 3 years and employers with 50 or more employees must review and update their multi-year accessibility plan at least every 5 years.  Monetary penalties have already been issued against certain organizations for a failure to report their on-line compliance.

Websites and content published after January 1, 2012 will need to meet the WCAG 2.0 Level AA guidelines (with a few carveouts) by January 1, 2021, except where it is not technically feasible, your organization does not control the information, the content is unconvertible or the required technology is not readily available.  These guidelines have been developed by the World Wide Web Consortium and include “success criteria” that cover matters such as meaningful sequences, separation of foreground information from background, functionality by keyboard, avoidance of flashing visuals, providing non-text content in text format and other criteria to address which make navigation and use of websites more accessible for those with a variety of developmental, physical, intellectual, mental, sensory, visual and hearing disabilities.

Manitoba

The first standard under The Accessibility for Manitobans Act (AMA) applies as of November 1, 2018 to private sector employers with one or more employees in Manitoba. The Customer Service Standard Regulation applies to such organizations if they provide goods or services directly to the public or to another organization in Manitoba. Fortunately, the Customer Service Standard Regulation is very similar to the accessible customer service standard under the AODA and minimal changes will be required to bring your standard into compliance if you already have an Ontario customer service policy and training program. Employers with 20 or more employees in Manitoba must also document training of staff on the AMA and the Manitoba Human Rights Code. Monitoring of compliance on the Customer Service Standard is expected to start in 2019 or 2020.

Standards on employment and information and communications have been drafted.  Upcoming standards will cover the built environment and public transportation and infrastructure. Apparently the education standard will be the final standard to be developed.

Nova Scotia

The Accessibility Act  was passed in 2017. Standards currently under development cover education and the built environment. The plan is to develop other standards at the rate of one per year starting in 2021 to cover: delivery of goods and services, information and communication, public transportation and infrastructure and employment.

Federal Government

The federal government introduced Bill C-81, An Act to ensure a barrier-free Canada, or the “Accessible Canada Act” (ACA) on June 20, 2018. The Bill passed third reading in the House of Commons as of November 27, 2018. There have been many amendments and much discussion. The standing committee reported back with 74 amendments. The Bill was in first reading in the Senate on November 29, 2018.

Note that the ACA does not make Canada accessible and does not require the provinces to take any legislative steps. Instead, the ACA will required organizations governed by federal law to implement accessibility. Such employers include those in telecommunications, broadcasting, interprovincial transportation, railways, shipping and banking. Such employers will need to develop an accessibility plan, which needs to be updated every 3 years, a feedback process, and to publish progress reports.

The enforcement mechanisms go further than those of the AODA. Enforcement includes inspections, production orders, compliance orders, monetary penalties and compliance agreements.  There is also a complaint process to the Accessibility Commissioner, who can order compensation for lost wages, up to $20,000 for pain and suffering and up to $20,000 in case of a wilful or reckless practice.  The CRTC will be responsible for compliance and enforcement in the broadcasting and telecom sectors, while the Canadian Transportation Agency will be responsible for the transportation sector.

Stay Tuned

We will issue further updates as further standards are developed under the provincial accessibility laws and when the federal Accessible Canada Act is passed.

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 2019.

Topics will include:

• A roundup on the big changes to workplace legislation across the country
• US Immigration and cross-border travel in light of the legalization of cannabis in Canada

Please confirm your attendance by Tuesday, January 15, 2019.

CPD/CLE Accreditation

LSBC: This session will be 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: This program will allow participants to earn 1 CLE hour with the Barreau du Québec.

This session is only available via webinar

Speakers

• Catherine P. Coulter, Counsel, Ottawa
• Virginie Dandurand, Counsel, Montréal
• Ellen S. Kief, Counsel – U.S. Immigration Law, Vancouver
• Adrian C. Elmslie, Partner, Edmonton
• Taylor Buckley, Associate, Vancouver

Questions

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

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.

Register Now