Canadian Employment Law Today

Canadian HR Reporter, 2020 ada as a live-in caregiver. Her sister worked in a liquor store, which was managed by the sister's husband and owned by her father-in- law. Rosalyn Petinglay would visit her sister in the store and sometimes operate the cash register when her sister took short breaks. The Canada Border Security Agency (CBSA) found Petinglay behind the cash register. When CBSA representatives made a purchase from her, the receipt showed that her name was registered in the system. It was determined that the first part of the definition of work did not apply to Petinglay as she did not receive any compensation, had not been asked or directed to work and was not supervised or required to attend at any particu- lar time. The second part of the test required a determination of whether the activity was in direct competition with the activities of Cana- dian citizens or permanent residents in the la- bour market. Petinglay argued that she did not provide assistance to any customer, she came and went as she pleased, her hours were not tracked, no one was called in to replace her if she did not come in and the company did not hire anyone to replace her after she stopped going to the store. She claimed that her name was registered in the cash register as it was re- quired to prevent fraud. The court held that Petinglay's activities did not constitute work. It was undisputed that her activities did not fall under the first part of the definition of work. She did not meet the second part of the defi- nition either because: it was a large store that had at least 10 to 20 employees on the floor at a time; she helped her sister occasionally; she did not prevent other staff members from performing their activities; when she operated the cash register, there were other employees present; and she did not provide any sales as- sistance to customers. Restoration of status cures past work with- out a permit. In Tiangha v. Canada (Citizenship and Immigration), Ephraim Tiangha came to Canada under the Live-in Caregiver Program. After his employer passed away, he found it difficult to find a new job. In the interim, his father became gravely ill and, to support his medical expenses, Tiangha started working without a permit. Before leaving for his father's funeral, he found a new job as a caregiver and secured a work permit, too. However, upon his return, his new prospective employer had also passed away. He again started working without a permit until he found a caregiver job and he was granted a new work permit. He applied for permanent resident status, but it was refused because he was found to have worked in Can- ada without authorization. Tiangha argued that, as he had received a new work permit, that cured his previous inadmissibility for hav- ing worked without authorization. The court agreed and relied on Ozawa, where the restora- tion of temporary resident status had the le- gal effect of curing any breach of the original temporary resident visa and held that the new work permit cured the previous breach. The legislation and regulatory framework along with existing case law dealing with the definition of work help us understand the im- portance of assessing specific situations and obtaining a work permit for employment or for an activity before an individual performs any services, paid or not, for which a Canadian citizen or permanent resident could be em- ployed. For more information, see: • Juneja v. Canada, 2007 FC 301 (F.C.). • Ozawa v. Canada (Minister of Citizenship and Immigration), 2010 FC 444 (F.C.). • Petinglay v. Canada (Public Safety and Emer- gency Preparedness), 2019 FC 1371 (F.C.). • Tiangha v. Canada (Citizenship and Immigra- tion), 2013 FC 2011 (F.C.). May 6, 2020 | Canadian Employment Law Today ABOUT THE AUTHOR Sergio R. Karas Sergio R. Karas is principal of Karas Immigration Law Professional Corporation in Toronto. He can be reached at (416) 506-1800 or karas@karas.ca. CREDIT: ANYABERKUT ISTOCK

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