Court rules: Majority ownership and acting as President of the Canadian company are not eligible for the Canadian Experience Class PR application.

by Jenny Rokhline

It is a known fact that self-employment in Canada on its own does not meet the requirements to immigrate to Canada under the Canadian Experience Class stream:

87.1(2) A foreign national is a member of the Canadian experience class if

  • (a)they have acquired in Canada, within the three years before the date on which their application for permanent residence is made, at least one year of full-time work experience, or the equivalent in part-time work experience, in one or more occupations that are listed in Skill Type 0 Management Occupations or Skill Level A or B of the National Occupational Classification matrix, exclusive of restricted occupations; and
  • (b)during that period of employment they performed the actions described in the lead statement for the occupation as set out in the occupational descriptions of the National Occupational Classification;
  • (c)during that period of employment they performed a substantial number of the main duties of the occupation as set out in the occupational descriptions of the National Occupational Classification, including all of the essential duties;
  • (d)they have had their proficiency in the English or French language evaluated by an organization or institution that is designated under subsection 74(3) using a language test that is approved under that subsection, the results of which must indicate that the foreign national has met the applicable threshold that is fixed by the Minister under subsection 74(1) for each of the four language skill areas; and
  • (e)in the case where they have acquired the work experience referred to in paragraph (a) in more than one occupation, they meet the threshold for proficiency in the English or French language, fixed by the Minister under subsection 74(1), for the occupation in which they have acquired the greater amount of work experience in the three years referred to in paragraph (a).
  • Application

(3) For the purposes of subsection (2),

  • (b)any period of self-employment or unauthorized work shall not be included in calculating a period of work experience

The Federal Court in Lazar v. Canada (2017 FC 16) provided further guidance on assessing these requirements.

The Applicant in the case was working in Canada in the Senior Management Position (NOC 00). The Applicant indicated in his application that he was not self-employed. The Applicant also provided Articles of Incorporation, Shareholder register and documents identifying the company’s directors and officers. Based on the information disclosed, the Applicant was listed as the President of the Canadian company and a holder of the 90% of shares.

The Applicant argued that the Officer failed to assess the T4 slips and the employment letter from the Applicant’s Canadian employer when determining the application.
The Court found that the Officer’s decision in the case was reasonable:
1. 90% shares ownership and acting as the President of the Canadian company was sufficient to determine that the Applicant was self-employed.
2. While a corporation is, in law, a separate and distinct legal entity, the assessment of the question of self-employment under the CEC is driven by factors relating to ownership and control of a business.
3. Since the Officer’s issue with the application was not in relation to the credibility or genuineness of the materials, there was no breach of procedural fairness by not allowing the Applicant to address the Officer’s concerns regarding the self-employment of the Applicant.

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