Using a landlord’s office space doesn’t make you an employee

  • September 11, 2019

Working out of a shared office doesn’t give you an employer-employee relationship with the landlord; and a non-Canadian working temporarily from a Canadian office for a foreign employer isn’t getting Canadian work experience.

Those are the key messages in a recent letter from the CBA’s Immigration Law Section to the ministers of Employment and Immigration.

The Section wrote to “raise concerns about issuing work permits under the Temporary Foreign Workers Program to foreign telecommuters working for employers outside of Canada from office space in Canada.” The Section believes that issuing work permits to this group would undermine the integrity of the Temporary Foreign Workers Program.

According to the information on the IRCC website, foreign workers may be allowed to work for foreign-based employers while in Canada, but only in limited circumstances and while they’re here their immigration status is “visitor” – they’re not viewed as entering the Canadian labour market. Their activities are not considered “work” as defined by the Immigration and Refugee Protection Regulations or by Employment and Social Development Canada.

The Section points specifically to the business model whereby companies rent office space for use by foreign employers whose foreign employees are working temporarily in Canada – for example, companies whose US-based workers have to leave the country to renew their visas might “house” them temporarily in Canada.

The Section notes that there is no employer-employee relationship between the worker and the landlord, therefore these rental companies should not have access to the TFWP, and those workers should not gain advantages that would accrue if that relationship did exist – for example, Canadian work experience putting them on the path to permanent residency.

“We fear that the success of this model will draw imitators and that its expansive redefinition of the employment relationship for immigration purposes may give rise to abuse,” the Section writes.

“Helping foreign employers build remote teams of foreign workers in Canada does not further the TFWP’s fundamental purpose – connecting Canadian employers with skilled workers.”

The Section asks the federal departments to review the issuance of Labour Market Impact Assessments and work permits to foreign employees of foreign companies not operating in the Canadian labour market to decide whether the practice is consistent with the TFWP, and to issue a bulletin to clarify the government’s position either way.