IMMIGRATION: Defining work not easy

IMMIGRATION: Defining work not easy

Which of the following constitutes “work” for which a foreigner in Canada must obtain a work permit?

– a student doing unpaid work for the purpose of obtaining work experience

– a telephone line volunteer at a rape crisis centre

– an uncle helping his nephew build a cottage

– a person who is opening a dry-cleaning shop

– a visitor who is doing work via the internet for his foreign employer

– a tourist who works part-time for a few weeks on a family farm for room and board

Since a foreigner can face a removal order for working in Canada without a work permit, it is important to know what activities are viewed as “work” and why.

Our legal definition for “work” is not particularly helpful. Work is 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”.

The first part is easy. If you get paid, it’s “work”. However, the opposite is not necessarily true. Just because a person is not being paid does not mean that they are not involved in “work”.

The second part of the definition is a little trickier. If the activity is one that Canadians “should really have an opportunity to do” or is “competitive in the marketplace” then that is “work” even if it is unpaid.
The student and the dry-cleaner in the above examples are considered to be performing “work” and therefore need a work permit. The first is gaining experience that could be given to a Canadian while the other is setting up a business that will compete directly with Canadians.

The immigration department does not consider the rest to be engaged in “work” and therefore these individuals would not need a work permit. The department does not see these individuals to be taking away opportunities from Canadians. While this may be clear in the case of the volunteer at the crisis centre, it is less clear why the uncle helping to build a cottage is not viewed by CIC as taking opportunities away from Canadians.

Although most “work” requires a work permit, some work is specifically exempted from the requirement to apply for a work permit. Examples include business visitors, athletes and coaches, news reporters, public speakers, clergy, etc.

Last week the department issued policy changes and clarifications to some of these exemptions in its Foreign Worker Manual. Those who may be affected by these changes should review these amendments at www.cic.gc.ca/english/resources/manuals/fw/index.asp that went into effect on June 29.

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Guidy Mamann practices law in Toronto at Mamann & Associates and is certified by the Law Society of Upper Canada as an immigration specialist. Reach him confidentially at 416-862-0000 or at reporter@migrationlaw.com.