Credit for time working abroad

Reason for this post: part of the requisites for earning credit while abroad, pursuant to employment abroad for a Canadian employer, may be that the position be temporary despite the reference to being assigned on a "full time basis" to the position outside Canada.

In particular, it appears that CIC (or at least the IAD) is interpreting work-abroad-for-a-Canadian-employer option to explicitly mean that if a PR is "hired on a full-time basis to work outside of Canada" (even if for a Canadian business) that time outside Canada is NOT counted toward being resident in Canada.

Perhaps most PRs potentially affected already well understood what is required to get credit for time spent abroad while working for a Canadian employer, but I have the sense that more than a few have not been aware that there is a restriction on the character of the assignment or that there may be limit to how long the assignment abroad is for, that it must be temporary.

I recently posted a link to the PR card application guide appendix, regarding the PR residency obligation, and that was, in particular, to the guide's explanation for counting time a PR was employed outside Canada by a Canadian business. I said the guide is "probably the best explanation" and includes "a detailed explanation regarding counting the days the PR was employed outside Canada, including the requirements that the employment must meet, and the supporting documents that may be required."

In looking at some of this year's IAD PR residency obligation breach cases, my sense is that it may be far from obvious how this is in practice applied.

In particular, there is not much if any of a hint, in how the guide states what will qualify for this credit, that the assignment must be temporary.

In this regards . . .

Sometime ago I discussed and linked a Federal Court decision which involved a fairly narrow interpretation of what qualified for credit as time in Canada based on working for a Canadian employer abroad. That was the MCI v Jiang case, a decision by Justice Boivin. Not sure what topic here that discussion took place. The decision was nearly three years ago.

A recent citation to this case highlights an aspect that I think I overlooked when I cited this case on a previous occasion (I have not revisited my original discussion of this case here), and which strongly suggests that CIC takes a more strict approach to allowing credit for time abroad working for a Canadian employer than what many might anticipate.

In particular, somewhat recently a IAD panel, in the matter of Kamara and the Minister of Public Safety . . . , cited this case for the following proposition:

It was this Court’s view in Jiang that to have time spent outside of Canada count toward the residency requirement, the permanent resident must be assigned temporarily, must maintain a connection with his employer, and must return to work for it in Canada following the assignment.

I am not sure how this is derived from the applicable provisions of IRPA, and in particular I don't see where the necessarily temporary character of the "assignment" requirement comes from. Indeed, references in the Act to how this should be interpreted specify that it is based on an employee "assigned on a full time basis . . . to a position outside Canada (among three alternatives listed). That does not suggest it is primarily about a temporary position. And I can see no where at all that the time spent working abroad is dependent on the PR continuing to work for the same employer upon returning to Canada.

My sense of this is, apparently, wrong.

In contrast to my thinking, the Minister argued that the word "assigned" includes a "notion of mobility and a connecting factor" and that otherwise denotes work . . . "for a temporary period."

Apparently the Federal Court agreed with the Minister.

And that was followed (last year) by a similar decision by another Federal Court justice in this case, Justice Noel also quoting Justice Boivin, and in this case stated:

The Applicant entered into an employment agreement with a Canadian business for a period of three years. In that time, the Applicant worked on a full-time basis in China, only returning to Canada for short periods of time “to report to the job and to stay in the country” . . . . Whether he had intended it or not, the Applicant was hired on a full-time basis to work outside of Canada. He now wishes to count the days he spent working in China towards his residency requirement. This is precisely the situation this Court found unreasonable in Jiang. (emphasis added)

And thus now the IAD is interpreting these cases to explicitly mean that if a PR is "hired on a full-time basis to work outside of Canada" that time outside Canada is NOT counted toward being resident in Canada.

If this is the approach CIC is taking generally, I suspect there are more than a few Canadian PRs living abroad who not aware of this interpretation.

While the PR in the more recent case had PR status saved by an application of H&C grounds, this interpretation of what qualifies for credit based on being "assigned" to a position abroad is a rather dramatic limitation which seems likely to catch more than a few PRs off guard.

There is another aspect to this more recent case, though, which warrants attention: it highlights the improvidence of applying for a new PR card without first being in compliance with the PR residency obligation. This individual had no problems entering Canada, despite how little time she had spent in Canada, but then eight months later she applied for a PR card to replace the one that was expiring, resulting (after some inquiries) in her being issued a Section 44(1) report followed by a departure order (usually referred to a "Removal Order"), as in declared inadmissible (and after which time being spent in Canada, during the appeal of that, would not count toward meeting the residency obligation) and which would constitute revocation of PR status unless she successfully appealed (and her appeal was successful, based on H&C grounds) . . . but that was issued some 20 months after she had returned to and thereafter continuously remained in Canada.