Vol. 148, No. 14 — July 2, 2014
SOR/2014-170 June 20, 2014
IMMIGRATION AND REFUGEE PROTECTION ACT
Regulations Amending the Immigration and Refugee Protection Regulations
P.C. 2014-840 June 20, 2014
Whereas, pursuant to subsection 5(2) (see footnote a) of the Immigration and Refugee Protection Act (see footnote b), the Minister of Citizenship and Immigration has caused a copy of the proposed Regulations Amending the Immigration and Refugee Protection Regulations, substantially in the annexed form, to be laid before each House of Parliament;
Therefore, His Excellency the Governor General in Council, on the recommendation of the Minister of Citizenship and Immigration, pursuant to subsection 5(1) and section 32 (see footnote c) of the Immigration and Refugee Protection Act (see footnote d), makes the annexed Regulations Amending the Immigration and Refugee Protection Regulations.
REGULATIONS AMENDING THE IMMIGRATION AND REFUGEE PROTECTION REGULATIONS
1. Subparagraph 186(g)(ii) of the Immigration and Refugee Protection Regulations (see footnote 1) is replaced by the following:
- (ii) they are not in an employment relationship with the organization or business in Canada that is contracting for their services;
COMING INTO FORCE
2. These Regulations come into force on the day on which they are registered.
REGULATORY IMPACT ANALYSIS STATEMENT
(This statement is not part of the Regulations.)
The Temporary Foreign Worker Program contributes to Canada’s economic development by allowing employers to hire foreign nationals to meet their short-term labour and skills needs when this will not negatively impact the Canadian labour market. The Program is jointly managed by Employment and Social Development Canada (ESDC) and Citizenship and Immigration Canada (CIC) under the authority of the Immigration and Refugee Protection Act (IRPA) and the Immigration and Refugee Protection Regulations (IRPR).
Under the Temporary Foreign Worker Program, foreign nationals may apply for a work permit to be authorized to work in Canada once their employer has obtained a Labour Market Opinion (LMO). ESDC assesses requests from employers seeking to hire temporary foreign workers and issues an LMO letter stating whether the foreign national is likely to have a positive, neutral, or negative impact on the Canadian labour market. CIC is responsible for the issuance of work permits.
Section 186 of the IRPR sets out exemptions from the requirement to obtain a work permit (and therefore an associated LMO) for categories of work where employment of foreign nationals in Canada would not negatively impact the Canadian labour market. Among these exemptions, paragraph 186(g) provides that certain foreign performing artists may work in Canada without a work permit for a time-limited engagement. However, foreign artists destined to perform in bars, restaurants or similar establishments do not qualify for the exemption under subparagraph 186(g)(ii) of the IRPR. The original policy rationale for making this distinction was to support jobs for Canadian artists by protecting performances in Canadian venues in which entertainment was considered not to be the primary business focus.
Issues and objectives
Two key issues have emerged with respect to foreign entertainers performing in bars, restaurants and similar establishments that suggest that the current differential treatment under subparagraph 186(g)(ii) is no longer warranted:
- The venue-based distinction is not achieving its intended policy purpose
Foreign artists performing in Canada for time-limited engagements were provided a work permit exemption in recognition of the broader cultural value of allowing them to present their unique talents to Canadians in a manner that would not negatively impact the Canadian labour market. Foreign artists performing in bars, restaurants and similar establishments were not afforded this exemption, however, as it was considered that the purpose of such venues was not primarily to showcase unique talent but rather to sell food and alcohol, and bringing in performing artist was a means of boosting sales by enticing customers to stay longer — an objective that could be accomplished as easily by a Canadian performer as by a foreign national.
However, many bars, restaurants and similar venues, have continued to rely on a mix of both Canadian and foreign performing artists to attract customers and boost revenues. The viability of this model may be less sustainable since the introduction of the LMO processing fee in 2013. The additional cost of engaging foreign performing artists arising from the LMO fee has proven to be challenging for many smaller bars, restaurants and similar establishments, making such venues less economically viable. As such venues are a starting point for the development of many Canadian performers, fewer venues could lead to fewer opportunities for Canadians to establish their own career in the music industry. The new LMO fee may also be dissuading some foreign acts from touring in Canada, reducing opportunities for Canadian artists to open for and tour with foreign acts, which can be an important means for introducing Canadian performers to a wider audience. In short, the venue-based distinction combined with the new LMO processing fee, may in fact negatively impact employment opportunities for Canadian performing artists.
- Administrative challenges in implementation
Normally, the LMO process assesses the likely impact that engaging a foreign national to work in Canada would have on the Canadian labour market. This process may be less relevant for the engagement of foreign artists destined to perform at bars, restaurants and similar establishments when they only enter Canada for short time periods. An analysis of past approved LMO applications indicates that foreign artists destined to perform at such venues entered Canada to work an average of only 12 days. Since these artists are here for such short durations, it is hard to measure the impact of an individual foreign artist on Canadian artists.
Furthermore, defining what constitutes a bar, restaurant or similar establishment to satisfy the current IRPR provision for work permit requirements is administratively challenging. Determination of whether a venue is in fact a “bar, restaurant or similar establishment” has been based on whether: the primary function is to sell food or beverages; the venue is open to serve patrons both before and after the performance; and information in the venue’s liquor license. In practice, non-subjective assessment of these criteria can at times be challenging and lead to difficulty in making consistent assessments with respect to what distinguishes a bar, restaurant or similar establishment from other performance venues that also sell food and alcohol.
The proposed IRPR amendment
- — provides consistent treatment to foreign artists, regardless of the type of venue;
- — simplifies the administration of the work permit process; and
- — maintains opportunities for Canadian artists who benefit from the continued viability of smaller venues and opportunities to tour with foreign acts.
The aforementioned objectives are being achieved by removing the words “nor performing in bars, restaurants or similar establishments” at the end of subparagraph 186(g)(ii) of the IRPR that currently require foreign artists to obtain a work permit (and therefore their employers to obtain an LMO) when performing specifically in bars, restaurants or similar establishments for a time-limited engagement, as opposed to any other performance venue.
Stakeholder support for the proposed amendment has been received from the music industry community. A number of music industry stakeholders have formally requested the proposed amendment stressing the importance of consistent treatment of foreign artists and their employers regardless of the type of venue. This request was reiterated by a number of key stakeholders during the December 2013 roundtable consultations hosted by CIC in cooperation with ESDC.
The “One-for-One” Rule does not apply to this proposal, since it does not increase or decrease the administrative burden on businesses.
Small business lens
The small business lens does not apply to these amendments, as no additional costs are imposed on business.
The regulatory amendment is a facilitative measure that provides consistent treatment of foreign artists performing in Canada for time-limited engagements, regardless of the type of venue.
Canadian musicians rely on live performances, including touring abroad, and gain exposure through multiple-act performances that include known performers from outside Canada, especially since Canada is considered a relatively small market. In this way, Canadian and foreign entertainers do not necessarily displace each other at performance venues. Instead, they perform jointly on the same bill, with lesser known acts benefiting from the exposure and enhancement in stature of sharing a bill with a more established act.
Thus, the proposed change will bring the following benefits to society and culture as well as the economy, business and trade:
- Canadian cultural experience will benefit from maintaining opportunities to enjoy live international music outside of festivals; and
- Smaller Canadian venues will remain economically viable and continue to provide opportunities for Canadian performing artists.
Implementation, enforcement and service standards
The regulatory amendment will come into force on registration. As this regulatory amendment provides an exemption from the requirement to obtain a work permit, enforcement and service standards do not apply.
Temporary Resident Policy and Programs
Department of Citizenship and Immigration
365 Laurier Avenue West