Andrew Tolomizenko is corporate counsel for a large

production company and provides legal services to outside clients in the television commercial and film industries.

On June 28, 2002, the new Immigration and Refugee Protection Act, Canada came into force. This act replaces the now repealed Immigration Act. Although it has been nine months since IRPA came into effect, it is still too early to determine how strictly some of IRPA’s newer provisions will be interpreted by immigration officers, Human Resources Development Canada officials, and adjudicators. Notwithstanding, as the busy spring and summer seasons approach (we all hope), companies bringing in ‘foreign nationals,’ as they are now called, should become familiar with some of these newer provisions. Volumes can be written about all the various changes, however, I am going to restrict my comments to some of the more important changes that affect the commercial production industry.

Surprisingly, the old act did not have a definition for ‘work.’ The IRPA regulations now have a definition for work, which is, ‘an activity for which wages are paid or commission is earned, or that competes directly with activities of Canadian citizens or permanent residents in the Canadian labour market.’

Accordingly, the jobs of film crew personnel, from director down to the PAs, will continue to be categorized as work. Therefore, as in the past, production companies must continue to get HRDC validations and employment authorizations (work permits) for all foreign film crew personnel entering Canada to work on a shoot.

Some of the more important changes established by IRPA include the codification of the factors that HRDC considers when determining whether to issue a validation for a work permit. Although these factors have generally been used by HRDC as a policy, they are now incorporated into the regulations of IRPA. Arguably, this is to a production company’s benefit, since policy can be easily changed and does not necessarily have to be followed on all occasions. On the other hand, regulations cannot be as easily changed and must always be followed.

Under section 203 (3) of the IRPA regulations:

An opinion provided by (HRDC) shall be based on the following factors:

(a) whether the work is likely to result in direct job creation or job retention for Canadian citizens;

(b) whether the work is likely to result in the creation or transfer of skills and knowledge for the benefit of Canadian citizens or permanent residents;

(c) whether the work is likely to fill a labor shortage;

(d) whether the wages and working conditions offered are sufficient to attract Canadian citizens or permanent residents to, and retain them in, that work;

(e) whether the employer has made, or has agreed to make, reasonable efforts to hire or train Canadian citizens or permanent residents; and

(f) whether the employment of the foreign national (foreign worker) is likely to adversely affect the settlement of any labor dispute in progress or the employment of any person involved in the dispute.

Unfortunately, IRPA regulations do not rank any of the above factors. Therefore, HRDC will continue to have some discretion by attributing more weight to one factor or another. For example, even though you may prove that by issuing the validation the work is likely to result in direct job creation for Canadian citizens, HRDC may decide to put more weight on whether the employer has made reasonable efforts to hire Canadian citizens or permanent residents (203(3)(e) above). In fact, this latter factor is what HRDC is currently requesting production companies to prove. That is, which Canadians have been considered for the job and why certain available Canadians are not acceptable.

Under section 205 of the IRPA regulations, a work permit may be issued if the work to be performed will ‘create or maintain significant… economic benefits or opportunities for Canadian Citizens.’ This section allows a foreign national to apply at the port of entry without obtaining HRDC validation. However, this is extremely risky since the updated foreign workers manual suggests that the ‘economic benefits’ argument will only be accepted in rare emergency cases. In other words, HRDC validation, based on the factors noted above, is expected to be provided before a work permit will be issued.

Other notable changes include some of the penalty provisions. Section 200 of the IRPA regulations provide that an immigration officer cannot issue a work permit to anyone who was caught working without a permit until six months have elapsed since they started working illegally. There is no discretion in this matter.

Also, under section 40 of IRPA (not the regulations), if a foreign national is requesting entry and is caught ‘directly or indirectly misrepresenting (him/herself) or withholding material facts relating to a relevant matter’, then the immigration officer may refuse entry to that person and force them to take the next flight home. This has happened to an agency representative who was eligible to enter as a business visitor but instead decided to lie about the purpose of his trip.

Finally, there is now a deemed rehabilitated provision for foreign nationals who have been convicted abroad of an offence which is punishable in Canada by a maximum sentence of 10 years, and 10 years have elapsed since their conviction and there have been no further convictions. Under the old act, such an individual was required to get a minister’s permit, which was a time-consuming process. Now, an immigration officer has the authority to deem the individual rehabilitated if the above requirements are met.

For more information about these changes I urge you to visit the Citizenship and Immigration Canada website at www.cic.gc.ca.

Next issue, I will discuss changes to the ‘business visitor’ category for foreign nationals.

This article is intended to provide general legal information and opinions. If you are involved in a legal matter related to those issues discussed above, you should seek your legal counsel’s advice. Andrew Tolomizenko is a freelance writer for On The Spot. Accordingly, his opinions do not necessarily reflect those of the publication.