I am often asked some variation of this question by new/potential clients, “Are you telling me that every company in Canada who has senior executives who live in another country and work frequently in Canada are getting work permits?”
Usually this is accompanied by a look of incredulity or even contempt for my perceived overly conservative bias.
I often take this opportunity to bring the conversation back to reality. We start discussing what constitutes a labour market entry, job duties, and end beneficiaries. The conversation can get pretty granular, but it often moves along with stories of people who have worked in Canada for 10 years off and on without ever even contemplating immigration, or so-and-so- at such-and-such company who they know for a fact doesn’t have a work permit.
Anecdotal stories aside, from the legal perspective, it’s about determining what that particular individual is doing in Canada and whether or not it constitutes work.
And the company and individual’s risk tolerance.
Topics like “work,” “compliance,” and “risk” seem very forthright. If you are a foreign national working in Canada, you need a work permit. Right? Not necessarily. There are lots of categories where a foreign national can “work without a work permit” such as some performing artists, athletes and expert witnesses, to name a few.
There are also the foreign government officers and military personnel who can work in Canada without a work permit. Then there is also the “business visitor.”
The “business visitor” is a wide-reaching category that can apply equally to someone coming in to attend a meeting, a conference, or to provide after-sales service (meaning: an individual can gain entry to Canada to help install say, software, that was purchased from a foreign vendor). Of course, this list isn’t exhaustive, but is illustrative of the types of entry that people can make where work is possible without requiring a work permit.
This is where the risk comes in. How does a company or employee (or counsel!) determine what is a business visit or labour market entry. I can tell you that as counsel we base our decisions on the rules and regulations, as well as on our experience.
We can all give horror stories of CEOs stopped at the border and questioned extensively and subsequently told she needs a work permit and is refused entry, or the employee who has stated they were coming in to Canada to visit friends and is found to be lying and barred from re-entry.
We know these things happen. Our job is to do our best so that it doesn’t happen to our clients while still obeying the letter and in some cases, the spirit, of these rules.
The risk can be hard to quantify. Yes, Immigration, Refugee, and Citizenship Canada is now doing inspections of employers who access the Temporary Foreign Worker Program. But if an employer errs on the side of not getting a work permit, is there still a risk?
The short answer is yes, but likely not from IRCC.
There is always the risk that a disgruntled employee will call a hotline and make a complaint, prompting either the Canada Border Services Agency or some local media to look into the allegations. That can create both a criminal liability and a reputational risk.
Imagine the headline:, “Canadian multi-national SVP flouts immigration laws by illegally working in Canada.” The press is brutal with these stories, so it’s unlikely to find a sympathetic ear.
But the real risk falls at the port of entry when that same foreign national is entering Canada, is questioned, and is deemed to be in need of a work permit. This is where it is caught most of the time, and really can create its own issues for those foreign nationals, who, for example, get stopped at the port of entry and are not allowed back into Canada.
This is a kind of forgotten risk in the new era of compliance inspections. The government inspection tends to be the new focus, but having an employee turned away at the border is a risk that most clients do not want to take, especially when dealing with the employees who fall into the C-suite group of workers. Some employers will decide to wait to get work permits until either the number of entries into Canada for a particular foreign worker increases, or they are asked to do so by an officer.
And that is the answer to the client question asked above. Does every company get work permits?
Not always right away and not always without first having an issue at the border.
This is why it is incumbent on counsel to walk through these issues with their clients to try and ensure clients understand both the risk to the company and the risk to the individual. They need to understand what “entering the Canadian labour market means” and the consequences that non-compliance can carry.
At that point, how the client or the individual shoulders the risk is based on an informed understanding of the rules and regulations, the potential risks, and the possible outcomes. We can’t help our clients contravene the law, but we can make sure that they understand the boundaries.