Immigration: Canada Experience Class

On September 17, 2008, a new class called the Canada Experience Class (CEC) was created which temporary foreign workers and foreign graduates working in Canada can use to apply for permanent residence. Applicants must reside in a province other than Quebec.

We will be explaining who qualifies to apply under this class and how the processing works.

There are two types of applicants who qualify to apply under this class:

1. Temporary foreign workers who have 24 months of full-time Canadian work experience in occupations designated by Canada’s National Occupation Classification (NOC) as managerial, professional, technical or skilled within the last 36 months. The NOC describes duties, skills and talents and work settings for occupations in Canada and can be accessed online.

2. Foreign graduates from a Canadian post-secondary institution with at least one year of full-time (or equivalent) skilled work experience in Canada.

As well, all applicants must have:
• temporary resident status during their qualifying period of work experience and any period of full-time study or training in Canada
• recent work experience in occupations that meet the minimum requirements for workers with management, professional or skilled and technical occupations listed in the National Occupation Classification (NOC)
• must have the qualifying work and study experience needed at the time the application is made
• knowledge of English or French (speaking, reading, listening and writing)
• not worked or attended school without authorization
• not remained in Canada after the time authorized to do so has expired
• not been found inadmissible to Canada on grounds such as health or security

It is important to note that this class is not available to refugee claimants in Canada and workers without status

Language Proficiency

In order to establish that the language requirements have been met, the applicant should take a recognized Third Party language test. It is possible to submit written submissions to prove your language skills but Canada Immigration recommends this only for applicants whose first language is English or French.

You can make arrangements for testing through designated testing agencies through Canada Immigration at: www.cic.gc.ca/english/immigrate/skilled/language-testing.asp and submit the results with your application. The test results must be within one year of the date of your application. In the application, there is a chart which spells out what result you should achieve with respect to speaking, listening reading and writing for your designated NOC occupation.

Work Experience

1. Temporary Foreign Worker

As a temporary foreign worker, you must have the equivalent of 24 months of recent legal full-time or full-time equivalent Canadian skilled work experience (one week of work = 37.5 hours) at an occupation designated by the NOC as professional, managerial, technical or skilled and this work experience must
have been acquired within the last 36 months.

Work experience does not count if accumulated while:
• self-employed
• working illegally
• working while subject to removal order
• working using a employment authorization issued to a refugee claimant

2. Graduate

As a graduate applicant, you must have the equivalent of 12 months of recent full-time or full-time equivalent (37.5 hours = a week) Canadian skilled work experience in one of the occupations designated by the NOC as professional, managerial, skilled or technical. This experience should be acquired after you have completed your study and obtained a Canadian credential therefore work performed under the off-campus work permit program or co-op work terms does not count.

Graduates must have studied full-time in a program of study or training that was at least 16 months in duration which is equivalent to two academic years. Full-time studies can also include any periods of
training in the workplace. You must, after completing your studies obtain:
• a diploma, degree, trade or apprenticeship credential from a public, provincially recognized Canadian university, community college, CEGEP or trade/technical school
• a diploma or trade or ap-prenticeship credential from a private Quebec post-secondary institution
(i.e. private CEGEPs)
• a degree from a Canadian private provincially recognized post-secondary institution

Online and English as a Second language programs do not count.

If your studies are in a graduate program (i.e. Masters), one academic year of study is sufficient if you have previously obtained a qualifying post-secondary educational credential (length of study at least 8 months or more) in Canada within the two years preceding the completion of your graduate program.

Please note that you must have legal status to study in Canada during the duration of your studies here.

Please note that you do not have to be working when you submit the application.

The Processing of CEC Applications

All CEC applications will be processed by the Area Processing Centre located in Buffalo, New York. An application can be forwarded to a visa office if you are not in Canada and the visa office will redirect
the application to Buffalo. The application must be filed within one year of leaving Canada. The lock-in date is the date the visa office or Buffalo APC receives a properly completed application. This date is very important if you have dependents who may, because of passage of time, cease to be dependents. If the applicant is approved, you can be landed in Canada without having to leave and re-enter Canada.

There is no discretion with CEC applications. It is a pass/fail system. So far, approximately 90% of applications have been approved. Processing time for applications is approximately 8 months. All requirements must be met at the time of filing (i.e. work experience cannot be acquired simultaneous to the processing of the application). Sometimes, an interview may be necessary if there is a question about the applicant’s relationship with the employer and whether there is an arms length relationship. Interviews can be conducted by phone or at a Canada Immigration office.

While you are waiting for your CEC application to be processed, you should continue to extend your employment or student authorization and indicate in the extension application that you have made a CEC application.

As is apparent from the qualifications for the CEC that Canada Immigration is hoping to attract and retain skilled and well-educated workers who have come to Canada to study or work in professional, managerial, skilled or technical pr-fessions. Unfortunately though, persons who may have these qualifications but came here as refugee claimants or as unauthorized persons, cannot avail themselves
of this new class.

CASINO TOUR OPERATOR FINED FOR VIOLATING WORKER’S RIGHTS

In a recent decision, the Human Rights Tribunal of On-tario has found casino tour operator Tai Pan Vacations Inc. liable for committing an act of reprisal against a female employee who had settled a related human rights complaint.

The Tribunal has ruled that Tai Pan, also known as Tai Pan Tours Inc. and one of the largest Chinese Canadian owned tour bus operators in the Greater Toronto Area, committed a “wilful and egregious violation” of Ontario’s human rights code and the company must pay former customer service representative Ms. Chan nearly $60,000, plus interest, in compensation for emotional sufferings as well as restitution for lost wages and benefits.

Our Clinic represented Ms. Chan and the very large sum of money that the Tribunal has ordered Tai Pan Vacations to pay to Ms. Chan, is in our opinion appropriate for the distress and financial hardship the company caused her.

This decision, particularly the $15,000 the company must pay to its former employee for her humiliation and loss of dignity, serves notice to business owners that the rights of workers must be upheld even in trying economic times.

The Ontario Human Rights Commission supported Ms. Chan in her complaint. It also wanted to ensure that other Tai Pan employees would not be discriminated against in the future. The employer in the case, Tai Pan, was ordered to draft policies to combat discrimination and harassment as well as a workplace accommodation policy and to have managers trained within six months.

“The Tribunal’s decision reflects the seriousness of this case,” said Barbara Hall, Chief Commissioner.
“Employers need to understand that they cannot punish employees who pursue their rights under the Human Rights Code,” she said.

In her first human rights complaint, Ms. Chan alleged discrimination after Tai Pan fired her when she told them she was pregnant. After suffering a miscarriage, Tai Pan rehired her only to fire her again just three weeks after settling her first complaint.

Tribunal adjudicator Eric Whist, in his 20-page decision, wrote: “The company’s decision to terminate the complainant a mere three weeks after Ms. Chan’s first complaint was settled goes beyond being willfully blind or reckless, it was a calculated retaliation. The respondent mistakenly believed it could terminate Ms. Chan with impunity.”

Ms. Chan approached the Ontario Human Rights Commission with her initial complaint on Feb. 24, 2006, claiming discrimination based on sex after being put on unpaid leave by the company for about two months after telling Tai Pan senior managers that she was pregnant. The company placed Ms. Chan on unpaid leave. Seven weeks after notifying Tai Pan of her pregnancy, Ms. Chan suffered a miscarriage. Upon being notified of the miscarriage, the company allowed her to return to work.

However, Ms. Chan also testified that the company’s reprisals against her filing of the initial human rights complaint did not end after she miscarried. She reported other incidents to the Ontario Human Rights Com-mission, including being excluded from salary increases despite good performance reviews, and being left out of “incentive” parties with Casino Rama for preferred clients.

In another instance, Ms. Chan testified that when she met with Tai Pan President Francis Wat on Nov. 10, 2006, he told her she could receive her bonus and salary increase if she withdrew her human rights complaint.

The complaint was settled March 12, 2007, with Tai Pan paying $5,343.84 to Ms. Chan. But three weeks later, she was summoned to meet with Tai Pan’s human resources manager, Ms. Kwan, and told she was being terminated. Ms. Chan testified she then asked Ms. Kwan why she was being terminated and was told that Tai Pan had the right to do so as long as it paid all statutory entitlements.

Ms. Chan, without a job, applied for employment insurance benefits. Human Resources Development Canada (HRDC) queried Tai Pan on their reason for terminating Ms. Chan, to which Ms. Kwan replied in a letter, dated May 14, 2007: “Due to recent litigation between Ms. Chan and Tai Pan the employment relationship and employer/employee trust were affected to the point that it was impossible to continue
her employment.”

In delivering its judgment, the Human Rights Tribunal of Ontario did not accept Tai Pan’s reason for terminating Ms. Chan. “In my opinion Tai Pan did not then provide a credible and rational explanation, in the face of this letter, to demonstrate that, on a balance of probabilities, the respondent’s decision to terminate the complainant was not an intentional act of reprisal for Ms. Chan having filed a human rights complaint,” Whist wrote in his decision.

Tai Pan has been ordered to compensate Ms. Chan in the monetary amount of $15,000. “This is a substantial award and one I find to be warranted given the serious nature of the discrimination and the humiliation and loss of dignity suffered by the complainant,” Whist wrote.

The Tribunal adjudicator makes note in his decision that Ms. Chan constantly said in her testimony that she took pride in her work as a customer service representative and in being a good employee, making her termination all the more difficult emotionally, as well as financially, for her.

Restitution of $42,466.79 was calculated as the difference between what Ms. Chan would have earned had she remained as an employee at Tai Pan and the actual amount she did earn over 20 months that it took her to find her current full-time job.

“It is important for employers to recognize that they have a duty in the equal and equitable treatment of their employees at all times, and especially during times of financial uncertainty. Sadly, our legal
clinic’s current caseload shows an increase in labour-related cases, making our involvement critical to many families in the communities we serve.