International Spotlight: Canada

[Sergio Karas is affiliated with Siskind Susser Bland through our Visalaw International immigration lawyers alliance. He regularly handles arts, sports and fashion immigration matters from his office in Toronto ]

Sergio R. Karas, B.A., LL.B, is a Certified Specialist in Canadian Citizenship and Immigration Law by the Law Society of Upper Canada, Vice-Chair of the Ontario Bar Association Citizenship and Immigration Section and Vice-Chair of the International Bar Association Immigration and Nationality Committee. He can be reached at Karas & Associates, (416-506-1800), karas@karas.ca ; www.karas.ca

The Immigration and Refugee Protection Act (“IRPA”)[1], and its Regulations have been in effect since June 28, 2002, and provide more flexibility to hire foreign workers than previous immigration legislation. However, employers should plan carefully when considering international relocations, to avoid the pitfalls that plague the system, including misunderstanding as to who can work in Canada and for how long, delays at visa processing posts overseas and compliance with Service Canada requirements for obtaining Labour Market Opinions (“LMOs”).

In addition, special rules apply to occupations in the performing arts and sports. Many occupations are exempt from Work Permits because they are not considered to be “work” as defined by the IRPA Regulations[2], yet other occupations are sufficiently competitive in the labour market and require both Work Permits and Labour Market Opinions.

A foreign worker may be authorized to work in Canada without a permit or may be required to obtain one. The first step in determining whether a Work Permit is needed, is to consider the nature of the activities to be performed by the foreign worker. “Work” is defined in Section 2 of the IRPA Regulations as an activity for which wages or commission are earned, or which competes directly with Canadian citizens or permanent residents in the labour market.

If a foreign worker performs an activity that will result in receiving remuneration, he or she will be engaging in “work”. This includes salary or wages, commissions, receipts for fulfilling a service contract, or any other situation where foreign nationals receive payment for the performance of services. Even if the foreign worker does not receive remuneration, the activities performed may still constitute “work” if there appears to be an element of competition with the local labour force. To determine which activities could be considered “work”, ask yourself the following questions:

Ü Will the foreign worker be doing something that a Canadian or permanent resident should really have the opportunity to do?

Ü Will the foreign worker be engaging in a business activity that is competitive in the marketplace?

The answers to these questions are not always obvious. Some examples of “work”, may include, but are not limited to:

Technical personnel coming to Canada to repair machinery or equipment, even if they are paid outside of Canada by a third party contractor.

A foreigner who intends to engage in self-employment, either directly or by receiving commissions or payment for services.

On the other hand, the following activities are not considered to be “work”:

Volunteer work for which a person would not normally be paid, such as activities for charitable or religious institutions.

Attending meetings on behalf of a foreign employer to discuss products or services, take orders or specifications for a manufacturer abroad.

Bearing in mind the above noted definitions and background will help to understand the policies with respect to issuing Work Permits in the performing arts and sports occupations, where special rules apply.

Immigration policy has divided performing artists into three different categories:

(a) Performing artists who are exempt from having to obtain a Work Permit and simply enter as visitors to Canada ;

(b) Performing artists who require a Work Permit but are exempt from obtaining a Labour Market Opinion; and

Performing artists who do not require a Work Permit must meet the criteria set out in Section 186(g) of the IRPA Regulations[3]:

186. A foreign national may work in Canada without a work permit

…(g) as a performing artist appearing alone or in a group in an artistic performance — other than a performance that is primarily for a film production or a television or radio broadcast — or as a member of the staff of such a performing artist or group who is integral to the artistic performance, if

(i) they are part of a foreign production or group, or are a guest artist in a Canadian production or group, performing a time-limited engagement, and

(ii) they are not in an employment relationship with the organization or business in

Canada

that is contracting for their services, nor performing in a bar, restaurant or similar establishment.

According to Citizenship and Immigration Canada and to Service Canada, the following performing artists can work without a permit as they qualify for the exemption in Section 186(g):

The policy set out above requires a number of clarifications with respect to the terms referred to in Section 186(g).

“Time-Limited Engagement”: as a general guideline, Citizenship and Immigration Canada and Service Canada consider that an unlimited number of rehearsals and performances over a two-week period are reasonable. Alternatively, an unlimited number of rehearsals and up to eight performances over a six or seven-week period would also qualify a guest artist for inclusion under to the “time-limited engagement” policy. However, a foreign national who rehearses and performs with a Canadian orchestra for an entire season, would require a Labour Market Opinion and a Work Permit.

“Employment Relationship”: a foreign performing artist would not be considered to be in an employment relationship if he or she was hired to perform a single concert or a short series of concerts. For example, if a band is hired to perform at a wedding, or a festival hired a singer to perform twice in a weekend, there would be no employment relationship created even where contracts are signed. On the other hand, if a dinner theatre hired a foreign singer or dancer to perform five nights a week on a weekly basis for four weeks or longer, an employer-employee relationship would be created and both a Work Permit and Labour Market Opinion would be required. Essentially, contracts for short-term “engagements” would not create an “employment relationship” between an artist and the organization contracting for their services and there would be no requirement to obtain a Work Permit. A longer-term contract, however, where the performer is expected to perform on a regular basis and usually in the same venue, would be considered an employment relationship, and a Labour Market Opinion and a Work Permit would be required.

“Bar, restaurant or similar establishment”: A performance in a bar, restaurant or similar establishment requires a Labour Market Opinion and a Work Permit. For the purposes of determining whether a venue is a “bar, restaurant or similar establishment”, the following indicators should be taken into consideration:

A “bar, restaurant or similar establishment" may offer live, non-live, or a combination of live and non-live entertainment to its patrons. Non-live entertainment normally includes the work of a disc jockey. A venue may still be considered a "bar, restaurant or similar establishment" even though it primarily offers live entertainment, occasionally offering a non-live entertainment event. Examining the liquor license can provide an indication of whether a place should be considered a "bar, restaurant or similar establishment", or whether it can be considered a concert venue where the performers will be exempt from the work permit requirement.

In most Canadian provinces, liquor licenses may clearly set out the type of establishment licensed. Some licenses are for “lounges” and others are for “restaurants”. However this is not always the case. For example, a venue may be identified within the license as operating as a concert venue, but possess a "Liquor Primary License of bars and pubs". In this case, the venue would still be considered a concert venue and not a "bar, restaurant or similar establishment" for the purposes of Section 186(g)(ii) of the Regulations. In situations where an establishment has no liquor license and the classification of an establishment is unclear, the municipal operating license of the establishment can also provide a strong indication of the nature of the venue, through no single factor may be conclusive.

There may be situations where a venue that would normally be a "bar, restaurant or similar establishment" may be considered a concert venue for a particular performance. For example, a local music or cultural association rents or leases a club for a performance on a night that the venue would not normally open. Tickets are sold for that event, and the venue opens and closes shortly before and after the performance. Even though the operators of the venue conduct their normal food and drinks business to serve those attending the event, this may be considered a "concert" situation which allows the performers to be Work Permit exempt.

Examples of "bar, restaurant or similar establishment" NOT exempt under Section 186(g)(ii) of the Regulations (Work Permits and Labour Market Opinions required):

Examples of venues NOT considered to be a "bar, restaurant or similar establishment" under section 186(g)(ii) of the Regulations (Work Permit exempt):

Comedy clubs and dinner theatres are not considered to be a bar, restaurant or similar establishment, since their primary business function is the sale of live entertainment, and not that of food and beverages.

Special mention should be made of the situation that arises with respect to festivals and showcase events. Although most such events take place in concert venues, some performances may take place in bars, restaurants or similar establishments. For example, a jazz festival may include events in smaller venues, such as a lounge. In those cases, the contract with the performing artist must be closely examined to ensure that the engagement is part of the festival program, and if so, the performing artist can be exempt from a Work Permit pursuant to Section 186(g) of the Regulations.

In addition to the above, the following persons will be granted entry as visitors pursuant to the IRPA Regulations other than Section 186(g):

(b) PERFORMING ARTISTS REQUIRING WORK PERMITS BUT EXEMPT FROM LABOUR MARKET OPINIONS:

Some categories of performing arts occupations require Work Permits but are exempt from obtaining Labour Market Opinions. The occupations have been designated by policy, based on the recommendation by Service Canada concerning labour market conditions. They are as follows:

Film Co-productions: All temporary foreign workers entering Canada to take employment under the terms of a film co-production agreement between Canada and any foreign country are exempt from the need for a Labour Market Opinion. The temporary foreign worker must present a letter issued by the Canadian co-producer confirming that a co-production agreement has been signed and specifying what role the temporary foreign worker will fill in the production. The worker should also present a copy of their contract with the Canadian or foreign co-producer. Telefilm Canada plays a role in approving co- production agreements, and is available to confirm that an agreement exists, should this be necessary.

American Federation of Musicians: Musicians working under the Cultural Exchange Program between the Canadian and American components of the American Federation of Musicians (A F of M) do not have to obtain Labour Market Opinions if they are members of the Federation and citizens of the United States . They must possess a letter from the Canadian office of the A F of M identifying them as participants in the cultural exchange program, and indicating that it would be appropriate for them to work in Canada provided that they meet the usual requirements of a Temporary Resident (Visitor). To reflect the duration of the J-1 visa given to Canadians by the United States , the Work Permit may be issued for a maximum of three months from the original date of entry. In situations where the requirements of Section 186(g) of the Regulations are met, no Work Permit is required.

Circus performers: Foreign traveling circus performers, in most cases, meet the requirements of Section 186(g) of the Regulations. However, in cases where the employer is Canadian, there is entry into the Canadian labour market, and a Labour Market Opinion is required. The only exception are performers engaged by Cirque de Soleil, which has demonstrated the significant benefit it brings to the local economy and that the organization looks to find the best circus performers in the world.

Any performing arts occupation not listed in any of the exemptions will require both a Work Permit and a Labour Market Opinion from Service Canada. Occupations that are indicated in that category are:

o Circus acts and performers, and crew working for a Canadian employer (except for Cirque de Soleil);

Actors, Artists, Technicians, and similar workers in Film, Television, Theatre & Radio: The following list is not exhaustive, but only provides examples of occupations subject to Labour Market Opinions and Work Permits in the film and television industry:

o screen and television actors, unless part of a group making a motion picture under intergovernmental co-production;

o artists involved in taped television dramatic productions and live dramatic performances that are being filmed;

o technicians working in film theatre and television productions, unless they meet the requirements of Section 186(g) noted above;

o persons coming to make either a film, videotape or sound recording for use in advertising commercials;

o persons coming to participate in making a motion picture, documentary, no matter who finances the project;

o persons temporarily occupying a permanent position at a permanent performing arts organization (i.e., those not considered to be guest artists).

Athletes and other foreign workers involved in sports occupations are also subject to special rules, which, to some extent, parallel those for performers in the arts. The criteria to determine if they require Work Permits and Labour Market Opinions is whether or not the workers will engage in an activity of a competitive nature in the labour market.

Section 186(h) of IRPA Regulations[4] allows professional or amateur foreign teams and individuals to compete in Canada , and also allows foreign athletes to be members of Canadian amateur teams. The Regulation states:

186. A foreign national may work in Canada without a work permit…

(h) as a participant in sports activities or events in

Canada

, either as an individual participant or as a member or a foreign-based team or Canadian amateur team;

Examples of individuals who meet the criteria set out in the said exemption are:

(b) SPORTS OCCUPATIONS REQUIRING WORK PERMITS BUT EXEMPT FROM LABOUR MARKET OPINIONS:

Professional and semi-professional coaches, trainers and athletes working for Canadian-based teams require Work Permits. However, they are exempt from obtaining Labour Market Opinions, based on the policy set out in Section 205(b) of the IRPA Regulations[5], which allows the exemption based on Canadian interests:

205. A Work Permit may be issued under section 200 to a foreign national who intends to perform work that:

…(b) would create or maintain reciprocal employment of Canadian citizens or permanent residents of

Canada

in other countries;

A professional or semi-professional coach is defined as a worker who earns enough income from coaching to support themselves or, if part-time, that income contributes a significant portion towards supporting themselves in

Canada

. They may be coaching an amateur athlete, team or club, but they themselves are still “professionals”.

Professional teams, for which foreign athletes would require a Work Permit, include those in the National and American Hockey Leagues, the Canadian Football League, Major League Baseball and its affiliates at the A, AA and AAA levels, the National Basketball League and the North American Soccer League.

(c) SPORTS OCCUPATIONS REQUIRING BOTH WORK PERMITS AND LABOUR MARKET OPINIONS:

Professional referees require Labour Market Opinions and Work Permits, except for leagues that have reciprocal arrangements for Canadian referees, National Hockey League (NHL) referees who are U.S. citizens or permanent residents qualify for Work Permits under such reciprocal arrangement, and may be issued Work Permits pursuant to Section 205(b) of the Regulations. Reciprocity is assumed for judges and referees at top-level professional competitions, but referees for lower level games or competitions must seek Labour Market Opinions unless reciprocity can be documented.

It is important that foreign performers and those working in sports workers plan their engagements well in advance, in such a manner so as not toe trigger the application of Labour Market Opinion requirements, and to avoid requiring a Work Permit, if at all possible. However, in some cases, due to the nature of the venue or to the kind of performers, those requirements will have to be met. It is therefore imperative that performers and sports workers and their contractual employers obtain the appropriate legal advice before attempting to enter Canada for an engagement.

[1] S.C. 2001, c.27

[2] S.O.R./2002-227 as amended

Disclaimer: This newsletter is provided as a public service and not intended to establish an attorney client relationship. Any reliance on information contained herein is taken at your own risk.