An interesting decision in a Alberta Workers’ Compensation Appeal Decision No.: 2017-0248, 2018 CanLII 87280 (AB WCAC)
raises interesting issues about how accessible or apparent are some of the nuances of the operation of the Immigration and Refugee Protection Act [IRPA] and Regulations [IRPR], especially around implied status.
Implied status (R.186(u) of IRPR in the context of work) is an often misunderstood concept. It is an area where I have had to write a lot of opinion letters for employers/employees in order to preserve the employees’ ability to maintain employment. As there is no “official” document confirming implied status, and the end of the period will often rely on a worker’s forthcoming updates to their employer about their application, it can be the source of some tension.
In Decision No.: 2017-0248, the status of foreign workers vis-a-vis their implied status is addressed in two major statements in the decision. Without getting into the applicability of the misunderstanding on the consequences, which it appears there may have been, it is important to clarify the law. I hope this piece is ultimately also an argument by getting an immigration opinion from an immigration lawyer may aid in understanding non-immigration law matters. This area of the law is not as simple as ‘googling’ IRCC’s website.
The Worker’s Representative’s made the following submissions as entered into the decision:
[106.12] The worker’s employer had offered modified work duties. The worker was committed to performing modified duties and signed a modified work agreement on March 19, 2015.
[106.13] On the same day the agreement was signed, the employer advised WCB that it could no longer employ him because his work visa had expired and the worker had done nothing to renew it.
[106.14] However, the worker had reported to his supervisor that he had applied for an extension, one month before his work visa expired. He provided the supervisor with an email to support this.
[106.15] An employer who hires temporary foreign workers should be aware that, once an individual has applied for extension of work visa, he or she remains entitled continue to work for the same employer until a decision is made on the extension. The employer did not follow through with the worker’s implied status as a temporary resident entitled to work and removed the modified work.
[106.16] Because of the employer’s decision, the worker had to relocate to another province as he had no way to pay his living expenses.
The Appeal Board later addresses the submissions and decides as follows:
[158] We acknowledge the worker’s representative’s submissions with respect to the worker’s ability to continue to work past the date on which his work permit expired.
[159] We note that the worker was issued a work permit on March 20, 2014. The date of expiry was March 20, 2015. The work permit explicitly stated that the work permit did not confer temporary resident status:
“. . .
Remarks/Observations:
DOES NOT CONFER TEMPORARY RESIDENT STATUS. JP/OSC
. . .”
[160] The Government of Canada information, supplied by the worker’s representative and copies of printouts of which were contained in the appeal documents package, stated what would happen if a temporary resident applied for renewal of a work permit which then expired. However, there was no evidence before us to establish that the worker was a temporary resident at the time his work permit expired. To the contrary, the permit stated he was not.
Implied Status is Available for a Work Permit Holder With a Condition “Does Not Confer Temporary Resident Status”
What the Worker Compensation Appeal Board does, in essence, is equate the condition on the work permit indicating that the work permit does not confer temporary resident status to the presumption that implied status cannot be available as implied status requires pre-existing temporary resident status.
While it sounds good in theory, it is wrong on application of law. This is where implied status can sometimes be a misnomer.
*Warning – this part gets a bit reg heavy so if you hate regulations, you may want to avoid reading further.
First, the starting point – what type of work permit does the Appellant in this case have. We can do a preliminary deduction without seeing the work permit that is either a R. 206 of the Immigration and Refugee Protections Regulations [“IRPR“] and/or R.207(c) or (d) IRPR work permit. We are able to do this by looking at R.202 IRPR which sets out the impetus for the condition of not conferring temporary resident status.
This provision applies to work permits that often are applied for by refugee claimants or subject to an unenforceable removal order [R.206], is a protected person within the meaning of subsection 95(2) [R.207(c)], or is applying to become a permanent resident and has been granted an exemption by the Minister per s. 25(1), s.25.1(1), or s.25.2(1) of IRPA [R. 207(d)]. The later is commonly knows as the “first-stage approval” for a Humanitarian and Compassionate grounds permanent residence application, quite common when dealing with individuals without status who are applying for permanent residence.
The provision for implied status falls under R. 186(u) IRPR which allows a foreign national to work on the conditions of an expired work permit while awaiting a decision on a new work permit application. It is worth noting that this is a provision which does not mention anything relating to temporary resident status.
186 A foreign national may work in Canada without a work permit
(u) until a decision is made on an application made by them under subsection 201(1), if they have remained in Canada after the expiry of their work permit and they have continued to comply with the conditions set out on the expired work permit, other than the expiry date;
In fact, R.201 IRPR ties into R. 200, which states and Officer shall renew a foreign national’s work permit [note again – no language around an individual needing to be in status] if they continue to meet the requirements of section (R.) 200.
Application for renewal
- SOR/2010-172, s. 3.
DIVISION 3Issuance of Work Permits
Work permits
200 (1) Subject to subsections (2) and (3) — and, in respect of a foreign national who makes an application for a work permit before entering Canada, subject to section 87.3 of the Act — an officer shall issue a work permit to a foreign national if, following an examination, it is established that
(a) the foreign national applied for it in accordance with Division 2;
(b) the foreign national will leave Canada by the end of the period authorized for their stay under Division 2 of Part 9;
(ii) intends to perform work described in section 204 or 205 but does not have an offer of employment to perform that work or is described in section 207 but does not have an offer of employment,
(ii.1) intends to perform work described in section 204 or 205 and has an offer of employment to perform that work or is described in section 207 and has an offer of employment, and an officer has determined, on the basis of any information provided on the officer’s request by the employer making the offer and any other relevant information,
(B) that the employer, except an employer referred to in any of paragraphs 209.91(a) to (d),
(I) during the six-year period before the day on which the application for the work permit is received by the Department, provided each foreign national employed by the employer with employment in the same occupation as that set out in the foreign national’s offer of employment and with wages and working conditions that were substantially the same as — but not less favourable than — those set out in that offer, or
(II) is able to justify, under subsection 203(1.1), any failure to satisfy the criteria set out in subclause (I), or
(iii) has been offered employment, and an officer has made a positive determination under paragraphs 203(1)(a) to (e); and
(e) the requirements of subsections 30(2) and (3) are met, if they must submit to a medical examination under paragraph 16(2)(b) of the Act.
Non-application of par. (1)(b)
(2) Paragraph (1)(b) does not apply to a foreign national who satisfies the criteria set out in section 206 or paragraph 207(c) or (d).
In fact, four subsections of R. 200 specifically highlight section 206 and 207 and indeed in subsection (2) make it that the ability to leave Canada at the end of an authorized stay [i.e. or reframed – maintain temporary resident status] is not a consideration in whether to issue a work permit.
In conclusion – it is very clear from the regulations that an individual with an R. 206 or R. 207(c) and (d) IRPR work permit that has a condition stating the work permit does not grant temporary status CAN still rely on implied status under R. 186(u) of IRPR.
It is unclear what Government of Canada documents were relied upon but websites don’t often tell the full picture.
