Unlike most labour and employment law, immigration law is under the jurisdiction of the federal government and is subject to the Immigration and Refugee Protection Act (the “IRPA”). To be lawfully employed in Canada, one must be a citizen, a landed immigrant or have a work permit.
There is some increased movement of professionals, executives and skilled trades through free trade agreements, notably NAFTA (North America Free Trade Agreement). No work permit is required for business visitors who visit Canada to meet with Canadian clients or assess business opportunities, but a work permit will be required for foreign nationals who will be providing their services in Canada. Unless an exemption applies, the employer of the foreign national must apply to Service Canada to obtain a Labour Market Impact Assessment allowing it to offer employment to a foreign national. The two main categories of exemptions are for intra-company transferees and the “professional” category under NAFTA. Both of these types of exemptions are available only to managerial, specialized or professional employees.
Apart from senior executives, professionals, and workers with specialized skill-sets, most foreign workers in Canada are employed in the domestic care or agriculture sectors. Temporary foreign workers are protected by the same laws as Canadian employees, including labour and employment legislation and the Charter of Rights and Freedoms. The Canadian government recently introduced new legislation to govern Canada’s Temporary Foreign Worker Program. The law appears designed to better protect foreign workers and to address short-term labour and skills shortages. The new regulatory amendments seek to rigorously assess the authenticity of employment offers in order to minimize fraudulent offers and better protect foreign workers from exploitation and abuse. A second element of the new rules seeks to bar employers from hiring temporary foreign workers when Citizenship and Immigration Canada has determined that the employer has failed to meet its commitments regarding terms and conditions of employment. Finally, according to the regulatory amendments, temporary foreign workers can hold a temporary work permit for only four years at a time. However, some workers are exempted from this limit, including most who occupy managerial, highly skilled, or other exempt positions.