Andrew Tolomizenko is corporate counsel for a large

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

Picking up where I left off in the April 14 Legal Eye article, in this issue I will outline some of the Immigration and Refugee Protection Act rules relating to business visitors coming into Canada for a commercial shoot.

As with the rules relating to foreign nationals who require a work permit, the business visitor rules are also found in the IRPA regulations. Specifically, sections 186 and 187. Under section 186, ‘A foreign national may work in Canada without a work permit, (a) as a business visitor to Canada within the meaning of section 187.’

Subsections 186(b) through (u) list various other individuals who may work in Canada without a work permit such as foreign diplomats, foreign news correspondents, foreign sports teams, etc.

None of these subsections apply to commercial film production. However, the legislature was apparently aware of the film industry when these regulations were being drafted since subsection 186(g) specifically excludes artists appearing in a film production. That is, performing artists are normally exempt from requiring a work permit unless they are performing in a film production, or a television or radio broadcast.

As with the prior legislation, roadhouse producers, agency and client personnel continue to be treated as business visitors at the port of entry. My practice is to provide each of such persons with a letter advising the border official that the roadhouse producer, agency and/or client personnel are entering Canada to observe and consult with Canadian staff and crew and, accordingly, pursuant to section 186(a) of the regulations, they may enter Canada without a work permit. This has always worked for my clients.

A word of advice: if possible, avoid using the title of ‘director’ when describing your agency or client personnel. For example, an agency’s creative director may have trouble entering simply because this title is confused with the title film director. I have been required to explain the differences to border officials who have held up these persons for this very reason.

Somewhat confusing is the first sentence of section 186, which states that a foreign national may work in Canada without a work permit. As stated in the last Legal Eye, the word ‘work’ is now defined in the IRPA regulations as ‘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.’

Section 187(1) goes on to state that, ‘For the purposes of paragraph 186(a), a business visitor to Canada is a foreign national who is described in subsection (2) or who seeks to engage in activities in Canada without directly entering the Canadian labour market. Section 187(3) goes on to state that a foreign national is not considered directly entering the Canadian labour market,…’only if (a) the primary source of remuneration for the business activities is outside Canada; and (b) the principal place of business and actual place of accrual of profits remain predominantly outside Canada.’

So, paraphrasing and incorporating the definition of work into sections 186 and 187, the legislation appears to say that a foreign national can engage in an activity for which wages are paid or commission is earned, or that competes directly with activities of Canadian citizens in the Canadian labor market without a work permit only if the foreign national’s primary source of remuneration is outside Canada and the principal place of business and the actual place of accrual of profits remain predominantly outside Canada.

This would seem to suggest that foreign directors on roadhouse jobs may be classified as business visitors. A ruling on this interpretation has never been tested, however, I am attempting to contact the appropriate authorities to determine if this new language can be interpreted this way. It is important to recall that section 196 of the IRPA regulations state that, ‘A foreign national must not work in Canada unless authorized to do so by a work permit or these Regulations.’

For those production companies that are getting excited about the prospect of being able to avoid HRDC for any foreign directors coming in on foreign jobs, I would not get my hopes up. There is enough language in the legislation to provide some discretion to border officials, and it is unlikely that interested parties on this side of the border will allow such an interpretation without a fight.

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.