As part our presenting sponsorship of the Halifax Chamber of Commerce’s Annual Fall Dinner, we are pleased to present a series of thought leadership articles highlighting the dinner’s themes of immigration, recruitment, and labour market solutions.

By Kathleen Leighton

The desire for flexible work arrangements is nothing new, but remote work in particular has become more prevalent due to both the ongoing digitization of our world and the start of the COVID-19 pandemic. Employees are now used to working out of the comfort of their own homes, and employers have begun to build trust that their workers can be efficient from their home environments. Over the past couple of years, remote work has even become a necessity as stringent pandemic-related border restrictions and quarantine requirements frustrated many employer’s attempts to bring foreign workers into Canada physically. Employers now more than ever must consider hybrid work set-ups to attract and retain employees and meet their labour needs. While not always possible depending on the nature of the job, the ability to hire foreign workers to work remotely from outside Canada has become an attractive option for businesses for this reason. Employers trying to find workers may also want to offer flexibility and the option for someone to work from home even if they are inside Canada.

These trends beg the question of where Canada draws the line on work permit requirements. Do all foreign workers require work authorization regardless of where they will be situated? Read on for an overview of what constitutes “work” for Canadian immigration purposes and the necessary authorization for various remote work scenarios.

What is work?

Work is defined as follows in section 2 of the Immigration and Refugee Protection Regulations (“IRPR”):

… 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.

Further, guidance from Immigration, Refugees and Citizenship Canada (“IRCC”) indicates that work includes both paid and unpaid work in certain circumstances. If you receive money or commission from an employer in return for a service or any other activity, this is considered paid work. However, if you are performing an unpaid activity, this may still be considered work if it is a job that one would usually be paid for or that would provide valuable work experience for Canadian citizens and permanent residents. In other words, “volunteering” in an office environment may still be considered work for IRCC’s purposes.

What work is regulated by IRCC?

Not all “work”, however, is regulated by IRCC. Section 195 of IRPR states that a foreign national is “a worker and a member of the worker class if the foreign national has been authorized to enter and remain in Canada as a worker”. Further, section 196 adds that foreign nationals “must not work in Canada unless authorized to do so by a work permit or these Regulations”.

The key theme in these regulatory provisions is that the worker or work be “in Canada”. Therefore, IRCC is concerned with work taking place in Canada or work where there is an entry into the Canadian labour market. Below are interpretations of IRCC’s requirements across various scenarios that involve remote work.

1. Foreign national is employed by a Canadian company but located outside of Canada:

In this scenario, there is a Canadian employer involved. However, the foreign national is located and performing their work for the Canadian employer outside of Canada. One example would be an IT consultant located in the United Kingdom but working with a Canadian business. Assuming the worker receives wages or commission for this work, the activities certainly fall within IRPR’s definition of “work”. However, this work would not be regulated by IRCC. The individual has not entered Canada to perform work. Work authorization would therefore not be required in this scenario.

That said, there may still be certain times when the individual needs to enter Canada to meet with their employer, attend meetings, or perform certain activities on site. In these cases, the individual would need to ensure they had proper authorization to travel to, stay in, and work in Canada as contemplated during those visits.

2. Foreign national is in Canada, employed with a Canadian entity, but working remotely from their home in Canada in whole or in part:

In this scenario, the individual is performing activities that are considered to be work under IRPR, and is also working in Canada. They require work authorization for this purpose. However, it is also important that the work authorization they have properly authorizes the remote work in Canada. For example, if the individual is authorized to work by way of a Labour Market Impact Assessment (“LMIA”)-based work permit, but the LMIA application only listed the physical job site as the location of work with no mention of telework or remote work, this may be an issue. Similarly, any work that is performed remotely must be in line with the job duties included in the LMIA application (or Employer Compliance Submission in the case of an employer-specific LMIA-exempt work permit). If the job description provided was for an on-site labourer, that individual is not then authorized to do book keeping for the company from their home in Canada.

Additionally, particularly in the case of LMIA applications where Service Canada is evaluating the impact to the Canadian labour market, employers may need to provide extra justification when hiring foreign workers to perform remote work from within the country. Employers will firstly need to ensure that any advertising they do makes it clear that the work can be performed remotely, as this may attract more Canadians to the position and minimize the need to hire a foreign worker. Employers should also be aware for LMIA applications that advertising for a remote position may also impact the wage that must be advertised and offered to the worker. Additionally, there could be pushback in the case of entirely remote positions, and employers may be asked to justify why the foreign worker needs to be in Canada to begin with in those scenarios.

3. Foreign national is in Canada but employed by a foreign company:

Consider the scenario where a foreign worker comes to Canada with a work permit and brings along their significant other. One major factor that individuals consider when moving to Canada is what their spouse will be able to do while in Canada and whether they will also be able to work. Let’s say this worker’s significant other is an IT consultant and is able to work from anywhere in the world for their Australian employer. Therefore, the significant other maintains their job with their Australian employer and will perform their job duties from their new location in Canada. This individual is also receiving wages or commissions for these activities. This generally fits into IRPR’s definition of work. The individual is also “in Canada”, but is the work “in Canada”?

Whether this work is of concern to IRCC depends on whether the individual’s presence in Canada is ancillary to their job function:

• If their employer is a foreign entity, all job activities relate to the foreign entity, and work activities performed could truly be done from anywhere in the world, this work likely does not require work authorization.
• If the foreign entity has client sites in Canada that the individual will have to visit in the course of their duties, or if the individual’s physical location in Canada is required to carry out some or all of their job duties for the foreign entity (e.g. direct sales to Canadian customers), this work likely would require work authorization.

Note, even if the individual does not require work authorization in this scenario, they still need to ensure they have proper authorization to travel to, enter, and remain in Canada as a visitor.

Conclusion

Ultimately, offering a position with the flexibility of some remote work is a benefit many employers are keen to provide as a means to attract candidates. Where those candidates are foreign nationals, it will be important for employers to ensure that proper authorization for the work is obtained and maintained throughout the course of the job. IRCC is not concerned with all work happening all over the world for Canadian entities, nor is it concerned with work being performed by an individual physically in Canada who has not entered the Canadian labour market. In all other scenarios, it is important for foreign nationals and employers alike to ensure proper work authorization is in place, and where remote work occurs within Canada by a foreign national for a Canadian employer, there may be additional considerations to ensure work authorization is properly obtained.

This update is intended for general information only. If you have further questions about these programs or are an employer seeking to support your workers, please contact a member of our Immigration Group.

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