Canadian Employment and Immigration Law Quarterly Update

Updating business managers with what you need to know, right now: 

This quarter’s legal update looks at a number of recent developments in immigration and employment law. 

Immigration lawyer Stanley Leo discusses backlogs at IRCC, work permits and permanent residency, the use of artificial intelligence at IRCC, and the situations in Ukraine and Afghanistan. 

Employment lawyer James D. Kondopulos discusses revisions in paid sick leave requirements in BC, changes to the rules around the certification of bargaining units, backlog at the BC Human Rights Tribunal and the Tribunal’s go-forward plan.

Pressed for time? Skip ahead. 

Immigration Law with Stanley Leo

S1:01 Backlogs at Immigration and Citizenship

S1:02 Work Permits, Permanent Residency, and Graduate Work Permits

S1:03 Artificial Intelligence and IRCC

S1:04 Ukraine and Afghanistan

Employment Law with James D. Kondopulos

S2:01 Revisions in Paid Sick Leave Requirements in BC

S2:02 Changes to the Rules in BC around the Certification of Bargaining Units

S2:03 Backlog at the BC Human Rights Tribunal and the Tribunal’s Go-Forward Plan

Interview with Stanley Leo, Immigration Lawyer at Lowe & Company

S1:01 

Backlogs at Immigration and Citizenship

GB: What is the current state of application processing at IRCC? 

Government processing backlogs persist. A recent news story stated that there is a backlog of over 2 million applicants now, which is very believable. The government is fully aware of it.

The department has an obligation to try to meet increasing targets, but they’re being expected to do that while also dealing with multiple issues that have affected their own capacity, including Covid. 

I believe they’re trying to add staff. Anyone who’s unable to work in the office can now work remotely, but it remains to be seen how efficiently they can do so.

There have also been other unexpected demands on their attention, including the situations in Afghanistan and Ukraine. 

S1:02 

Work Permits, Permanent Residency, and Graduate Work Permits

GB: How has the lessening of Covid restrictions affected work permits? 

People are requesting work permits on entry again if they’re otherwise allowed to do so, which is facilitating movement much more efficiently than before. For the most part I don’t see there being major immigration-related issues for employers outside of delays in processing. Programs are still being administered, albeit more slowly and unpredictably. 

GB: In previous reports we spoke about complications with permanent residency applications. Have there been any developments? 

The Government of Canada did announce that they’re going to resume express entry invitations in July. What that looks like, we don’t know. Invitations, the quality of invitations, or the impact of invitations often depends on how many people they invite, who’s in the pool, and whether they restrict certain programs. Those details are less known. For employers with existing foreign workers who might need a new work permit, the express entry invitations will help. 

Some workers who get invited to apply for PR will be able to move forward on that basis, and will also be able to apply for things like bridging work permits, which employers don’t need to be engaged with. 

GB: Are graduate work permit extensions being issued?

There was an announcement made a few weeks ago that international graduates who have post-graduation work permits that expired, or will be expiring this year will be able to apply for an 18 month extension. That’s over and above the initial duration of their work permit. Usually those post-graduation work permits are only available once, so it’s actually a big deal. What we don’t know right now is how that’s going to affect people, because it was announced pretty late. Who knows how long it takes to process those work permits at this point? I can’t stress enough how delays and unpredictability are real hallmarks of the current experience at immigration. 

GB: Do you have any general advice for employers looking to hire or extend the eligibility of foreign workers? 

In some cases it’s almost business as usual. If someone wants to hire a professional under NAFTA from Mexico or the US, it’s almost back to normal, other than concerns about vaccinations and travel rules. In general, however, if someone has a business issue they need addressed in one to two weeks, it’s increasingly less likely that they’ll be able to address that through immigration. If an employer has foreign workers working with them and they have any intention of engaging the system, the best advice I can give them is to leave a lot of buffer time. 

S1:03

Artificial Intelligence and IRCC

GB: Revelations about the Chinook System and the use of artificial intelligence by IRCC have caused concerns. What are you hearing? What are your thoughts on using AI in application processing?

On the one hand I can understand the desire to use tools like that, which should help speed up decision making, but the government also has an obligation to make reasonable decisions, and the use of AI can be problematic.

There is an AI system that has been developed and in use for probably at least three years now. It’s being used primarily for temporary resident applications, and it’s most commonly being encountered negatively in study permit applications. The rate of refusal from some countries is super high, and it does seem to be correlated with the increased use of AI in those regions.

I think there’s room for it to grow, but right now we’re certainly in the start of a process of pain. There’s been little information published about the way that AI has been used so far, which is one of the reasons it’s difficult to discuss. This is likely done on the basis of system integrity or national security. They don’t want people to know enough that they can game the system. 

S1:04

Ukraine and Afghanistan

GB: What has the Government of Canada done to accommodate Ukrainian refugees?

They will not require Ukrainians to have a passport in order to apply for a visa and travel to Canada, which is an extraordinary measure. Even protected persons, for the most part, are expected to provide that kind of identification, so for them to make that effort and provide that exemption is a huge boon for Ukrainians who desire to apply to come to Canada. 

They’ve also become more accommodating on biometrics, such as people having to go and provide fingertips, eye scans, and that kind of thing. There are limited places that you can do that at the best of times, so my understanding is that they’ve increased the capacity for that. 

GB: What about their ability to work while in Canada? 

Ukrainians applying to come to Canada under the current Canada-Ukraine Authorization for Emergency Travel can also apply for work permits, basically from the moment they arrive in Canada. In this situation, Ukrainians can request an open work permit and stay in Canada for up to 3-years. The work permit enables them to pursue whatever work they need to do to support themselves. 

Canada is home to one of the largest Ukrainian populations outside of Ukraine, so there are natural connections for people fleeing Ukraine who desire to come to Canada specifically. 

GB: What are the target numbers associated with this program? 

The program has no quota. Technically speaking if every single person fleeing Ukraine wanted to come to Canada and applied for a visa to do it, there are no limits on the program.

GB: What about Afghanistan? It seems that the situation has disappeared from the headlines, so do Canadian efforts to process applicants from Afghanistan continue? 

The Afghanistan situation is still very much on the IRCC’s radar, even if it’s not being reported in the news. The plight of many of those applicants is perhaps even more acute, because there are known stories of the Taliban going around and identifying people who collaborated with foreign governments, including Canada’s, and there are very real threats in that sense. I’m certain that it’s still on the minds of IRCC. 

Interview with James D. Kondopulos, Employment and Labour Lawyer/Founding Member and Partner at Roper Greyell LLP

S2:01 

Revisions in Paid Sick Leave Requirements in BC

GB: What can you tell us about changes to the employment standards scheme around paid sick leave? 

The BC government has now sandpapered what were some rough edges in the requirements around paid sick leave. Previously an employee’s entitlement to paid sick leave was determined on the basis of the individual employee’s employment year, and that was creating all sorts of logistical and other challenges for employers, because each employee’s employment year would be different. That has now simply been replaced with the calendar year January 1 to December 31. 

GB: Would that apply to multiple employers in the event that an employee switched companies mid-year? 

It would be tracked on an employer specific basis. If I were to take my paid sick leave with Employer X, I could then leave and move to another employer and be entitled to paid sick leave with Employer Y, provided I’ve completed the necessary qualifying period, 90 days of employment. It’s no longer necessary to track each individual employee’s employment anniversary date for paid sick leave purposes. This is a logistical change that makes good practical sense. 

GB: Have there been any changes which affect paid sick leave with unionized employees? 

Previously, for unionized employees, the Employment Standards Act paid sick leave entitlement was subject to the “meet or exceeds” test. If a collective agreement had a scheme which addressed the matter of sick leave entitlements and that scheme, assessed as a whole, was determined to meet or exceed the employment standards requirement, the collective agreement scheme would replace or supplant the employment standards requirement. That is now off the table.  The “meet or exceeds” test no longer applies in this context. That’s significant and I know the labour movement, organized labour, was quite keen on that change.

GB: So if you had an agreement with your employer that met or exceeded the government’s requirement, wouldn’t that mean that you now have less sick days?

Not necessarily. The collective agreement scheme might have provided sick leave entitlements which in some ways met the employment standards minimum, but in other ways fell short of it. Taking the entire scheme as a whole, there would previously have had to be a judgment about whether the scheme met or exceeded the employment standards minimum. That’s history now.

The argument previously would have gone along these lines: we didn’t give you X or Y, but we gave you A or B, so our scheme meets or exceeds the employment standards minimum. In some situations one bucket of employees might have been treated quite favourably, another bucket not so favourably but, judged in its entirety, the collective agreement scheme met or exceeded the employment standards minimum. In those situations the employment standards minimum would have fallen by the wayside. That’s gone now. Employees are now entitled to that paid sick leave under the ESA, regardless of whether they’re unionized or not.  If they are entitled to additional benefits under the collective agreement, they would likely get those too. These matters will have to be revisited by the employer at the bargaining table with the union. 

S2:02

Changes to the Rules in BC Around the Certification of Bargaining Units

(Editor’s note: As of our publishing date, the legislation discussed in this section, Bill 10, the Labour Relations Code Amendment Act 2022, has now passed into law. That occurred on Thursday, June 2, 2022.) 

GB: Tell us about the new legislation that offers a “second path” to unionization in British Columbia.

Previously, there was a two-step process in British Columbia to certify a bargaining unit. The union had to get 45% of the proposed bargaining unit members to sign a union card. If the BC Labour Relations Board was satisfied that there was the necessary threshold support as of the date of the application, the Board ordered a secret ballot vote of the entire proposed bargaining unit within 5 business days. If the majority of the employees in the proposed bargaining unit voted in favour of union representation and the Board was satisfied that the proposed bargaining unit was appropriate for collective bargaining, the union was certified. 

Under the amendment there are now two pathways to certification for a trade union after it files its application for certification. Path number one is card only, or card check certification. If the union obtains signed union cards from at least 55% of the proposed bargaining unit, the Board certifies the union without a vote, eliminating the secret ballot vote. 

Path number two is the secret ballot vote, which will occur if the union establishes that, as of the date of the certification application, at least 45%, but less than 55%, of the employees in the proposed bargaining unit have signed union cards. In that case the board orders a secret ballot vote. If the majority of the employees in the proposed bargaining unit vote in favour of union representation and the Board is satisfied that the proposed bargaining unit is appropriate for collective bargaining, the union is certified. 

GB: What’s been the employer’s response to this change? 

The employer community has, not unexpectedly, reacted poorly to the proposed changes. There is an outcry about the new law, because of course it does away with the secret ballot vote under path one to certification. Card based certification was a key part of the BC NDP’s election platform. They’re labour or trade union friendly changes, there’s no doubt about that. 

S2:03

Backlog at the BC Human Rights Tribunal and the Tribunal’s Go-Forward Plan

GB: You mentioned that you wanted to talk about the Human Rights Tribunal. What’s happening there? 

The BC Human Rights Tribunal is currently terribly backlogged. I understand that about 30% of that backlog has to do with Covid-19 masking and vaccination complaints, and the rest of it is non Covid-19 related. It’s a stunning backlog that will take the Tribunal months, if not years, to sort through.

I understand that the Tribunal is currently screening human rights complaints which were filed in September or October 2021. It will take another 3-4 months to serve those complaints on respondents. The approximate time between the filing of a complaint by a complainant, and service by the Tribunal of the complaint on the respondent is approximately a year. That’s before the respondent even becomes aware of the complaint and can start to deal with it.

GB: Are there different channels used to deal with, for example, masking and vaccination issues? 

All of the complaints enter the Tribunal through the same door. If there is apparent merit to the matter, and the bar is set relatively low, for access to justice and other reasons, the complaint will proceed.

There is a push, and there will be an ongoing push, to mediate as many of these disputes as possible, and to do that in an efficient way. And I think that push is very much motivated by the heavy backlog at the Tribunal.

The Tribunal will be asking respondents in appropriate circumstances to file applications to dismiss. That will occur in certain scenarios where the Tribunal thinks an application to dismiss would assist in the resolution of the complaint.

Cited Sources
Direct contact with Stanley Leo and James D. Kondopulos. 
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