The Federal Court reviewed an Immigration Appeal Division
decision finding that a foreign worker had engaged in unauthorized work by
occasionally helping her sister at the cash register of a family-owned liquor
store.
The applicant held an employer-specific work permit
authorizing her to work as a live-in caregiver. CBSA officers observed her
operating a cash register at the liquor store and alleged that she had worked
outside the conditions of her permit.
The Immigration Division initially found that her activities
did not constitute “work” under section 2 of the IRPR. The IAD reversed that
determination. The Federal Court concluded that the IAD’s finding was
unreasonable because it failed to properly assess whether the applicant’s
limited, unpaid activities actually competed with Canadian citizens or
permanent residents in the labour market.
Key Principle
Under section 2 of the IRPR, an activity may constitute
“work” even where no wages or commission are paid if it is in direct
competition with the activities of Canadian citizens or permanent residents in
the Canadian labour market.
However, not every instance of unpaid assistance at a family
business automatically qualifies as work.
The analysis must consider the actual circumstances,
including the nature and frequency of the activity, whether another worker was
displaced, whether the activity provided a meaningful employment or experience
opportunity, and whether the foreign national effectively assumed the role of
an employee.
Background
The applicant came to Canada in 2016 as a live-in caregiver.
Her sister worked at a large liquor store owned by
relatives. When visiting her sister, the applicant occasionally operated the
cash register while her sister took short breaks.
CBSA officers observed the applicant behind the register,
serving customers. Her name was registered in the store’s point-of-sale system,
and she processed a purchase made by the officers.
The applicant was not paid, was never scheduled to work, had
no required hours, was not supervised as an employee, and was not expected to
attend the store.
The ID concluded that these occasional activities did not
constitute work. The IAD disagreed, reasoning that by serving customers and
operating the cash register, the applicant freed other employees to perform
different tasks and deprived others of employment or experience opportunities.
Court Findings
The Court found that the IAD relied on cases involving
substantially different circumstances.
In the authorities cited by the IAD, the foreign nationals
performed recurring duties, effectively replaced employees, were sometimes the
only person serving customers, or provided significant assistance that
benefited the employer.
The circumstances here were materially different.
The liquor store had approximately 90 employees, with 25 to
35 staff members working at any given time and numerous employees available on
the sales floor. There was no evidence that another employee would have been
hired if the applicant had not helped her sister.
The IAD also concluded that the applicant had been
“assisting customers,” despite her testimony that she only processed purchases
at the register. There was no evidence explaining what assistance she allegedly
provided.
The Court found that the IAD appeared to prefer the CBSA
officer’s evidence over the applicant’s testimony without explaining why,
particularly significant because the IAD had not conducted its own oral
hearing.
The Court emphasized that where an appeal body reaches
materially different factual conclusions based only on a written record, its
reasoning must remain transparent and intelligible.
Outcome
The Federal Court allowed the application for judicial
review, set aside the IAD decision, and remitted the matter to a different
IAD member for redetermination.
Case Citation:
Petinglay v. Canada (Public Safety and Emergency Preparedness), 2019 FC 1371 CanLII
Written by:
Dr. Muhammad
Abrar (Barrister and
Solicitor)
Author | Writer | Mentor | Legal Researcher | Canadian Immigration Case Law and
Statistics Analyst
