When can visitors to Canada assist Canadian non-profits in a volunteer capacity? Can a charitable or religious worker obtain a work permit, and if so, must they be paid? This post describes some of the common issues faced by non-profits and volunteers.
WHEN DOES THIS COME UP?
This typically comes up when there is an individual who is stuck on visitor status, either while awaiting their spousal or common-law open work permit, while waiting for a program of study to start, or just while they are in Canada for a lengthy vacation. Such individuals have “visitor” status, which allows them to remain in Canada provided they do not engage in “work”: an activity for which wages or commissions are paid, or that is in “direct competition” with Canadian citizens or permanent residents.
This captures both paid and unpaid work, or work where an honorarium is given in exchange for services. It captures agreements to pay in future, as well as capturing activities that a Canadian or permanent resident could perform for wages, but which are being performed by a volunteer (e.g. such as an unpaid bookkeeper position, or an unpaid reporter position for a newsletter — even though they are unpaid, it is still an entry into the labour market and the actual work should be paid). It also captures unpaid employment undertaken for the purpose of obtaining work experience, such as an internship or practicum normally done by a student.
This issue affects guest speakers, clergy and religious workers, and workers performing charitable functions, such as volunteering to build houses for the homeless or perform project work for a religious organization.
WHAT ARE THE CONSEQUENCES?
Organizations that employ persons without verifying their authorization to work may be charged with an offence under s.124(1)(c) of the Immigration and Refugee Protection Act: employing a foreign national in a capacity in which the foreign national is not authorized to be employed, with punishments up to $50,000 and two years in prison. The foreign national can receive a five year ban from Canada, or if they have a valid study or work permit but they are working outside its terms, a six month ban.
The requirement on the non-profit is to exercise due diligence as to whether or not the individual is authorized to “work” or volunteer in Canada. This post seeks to outline some circumstances where work or volunteer activities are acceptable, but note that it is not legal advice and is no substitute for the verification of an employee or volunteer’s ability to work in Canada.
THE GENERAL RULE
The general rule is that visitors to Canada cannot work without a work permit, an authorization issued by Immigration, Refugees and Citizenship Canada (formerly Citizenship and Immigration Canada). Work permits are difficult to obtain in many situations, or require wages to be paid, something many non-profits and charities either cannot afford or don’t want the administrative hassle of organizing.
WHEN IS A VOLUNTEER NOT CONSIDERED “WORKING”?
Some occupations, however are work permit exempt; as are activities performed by visitors which do not have the characteristics of “work”.
The following activities have been found not to be “work” for the purposes of Canadian immigration law:
- Sweeping up at a church and participating in fundraising was not outright considered a competitive activity, but was noted that it might be depending on the circumstances: Pathoumvieng v. Canada (Citizenship and Immigration), 2011 FC 523;
- Childcare provided for a friend for family member without payment (or the expectation of payment) is not considered to be work.
- Directors entering Canada to attend meetings but not engage in the hands-on work of the non-profit are not considered to be working: See, for example Guieb v. Canada (Public Safety and Emergency Preparedness), 2012 CanLII 61933 (CA IRB); Ozawa v. Canada (Citizenship and Immigration), 2010 FC 444
Far more activities have been found to be work, such as:
- Undertaking an internship on an agreement to pay in future basis (e.g. working on a car lot, keeping track of hours, to be paid in future once work authorization issued, etc.);
- Undertaking child care with the expectation of a gift or payment in future to compensate;
- Directors and shareholders engaging in the hands-on day-to-day work of the organization, rather than just acting in a director or shareholder capacity; and
- Attendance at the counter or store of a friend (to provide coverage for an ill friend), other than to say the store is closed.
WHAT ARE YOUR OPTIONS?
In general, appropriate volunteer tasks for visitors have some of the following qualities:
- No wage, commission, or honorarium is given or expected;
- There is no future promise of employment or paid work
- NB: This should be the case in all volunteer activities, to avoid disappointment of the volunteer and an employment contract arising;
- The activities does not compete with Canadian or permanent residents — if it is done, it should be a discreet tasks, not an entire job (e.g. sweeping the floor after a church service is acceptable once a week, but providing daily janitorial services may be going to far). Use your best judgement.
WHAT ABOUT WORK PERMIT EXEMPTIONS?
Clergy, which include members of a religious order preaching doctrine, are work permit exempt. Commercial speakers and guest lecturers are work permit exempt. In general, these only apply to short-entry periods. Directors and members who are coming into Canada for meetings but are not entering into the day to day work of the organization are work permit exempt. Judges of competitions (sports, fairs, etc.) are also work permit exempt. A full list is available online.
WHAT ABOUT CLOSED WORK PERMITS FOR THE NON-PROFIT, CHARITY?
Charitable and Religious Workers can obtain work permits, which allow them to work for pay and for free. IRCC guidance provides the following useful definitions as to who is a “volunteer” and who is a “charitable” worker:
A volunteer worker, whose activity is incidental to their main purpose for entering Canada and does not meet the definition of work, does not require a work permit (e.g., being a Big Brother or Big Sister to a child, being on the telephone line at a crisis centre, canvassing for donations). A charitable worker usually takes a position involving an activity that meets the definition of work and requires a work permit because they are participating in a competitive activity or are being paid wages (e.g., group home worker, carpenter for Habitat for Humanity).
Charitable work is that which can be tied to a head of charity: advancement of education or religion; relief of poverty; and other purposes beneficial to the community. Border services officers will consider the specific duties performed by the foreign national, based on a list of factors in IRCC guidance.
Religious work should reflect a particular religious objective, such as providing religious instruction or promoting a particular faith. It is not a requirement that the applicant be a member of the faith of the particular religious institution. The work should involve advancing the spiritual teachings of a religious faith as well as maintaining the doctrines and spiritual observances on which those teachings are based.
Unpaid positions are eligible for the Employer Compliance Filing Fee exemption (this is an online filing required for an employer to hire a foreign national and obtain a work permit). Charitable and religious workers may be paid but are not fee exempt. If they intend to apply for permanent residence in future based on the work experience, note that they must be paid under the current law for the Canadian work to count towards their Express Entry or other scores. Consult an immigration lawyer or regulated Canadian immigration consultant for more information.
WHAT ABOUT STUDENTS, YOUTH AND WORKERS?
Students. This is less of an issue for students with study permits. Provided the student is in full-time studies, they may work up to 20 hours per week off campus, and if they are on a study period break (such as summer), they may work full-time. If the organization is based on campus (such as an inter-faith chapel, club, student radio station, or newspaper), there is no permit required.
Youth often come to Canada either on a Working Holiday (which grants them an open work permit) or on a Young Professional or Co-op program. It depends on their nationality as to what programs are available. A full list is available online. For Working Holiday, typically it is under 30 and a lottery is held to determine who can apply. For Young Professional and Co-op, eligibility is dependent on a job offer which requires an Employer Compliance Filing.
Workers with open work permits also have less to worry about. A worker with an open work permit can do any volunteer task, provided it is not “healthcare” oriented which requires a medical exam.
Note that a worker with a closed work permit (not for the charity or non-profit) can volunteer in a non-“work” capacity as a visitor would.
WHAT ABOUT SPOUSES / COMMON-LAW PARTNERS?
Spouses and common-law partners of those foreign nationals with work or study permits may be eligible for an open work permit, provided their spouse or common-law partner has at least six months of validity on their permit and depending on the profession of their spouse or common-law partner, if a worker.
Spouses and common-law partners who are members of the in-Canada family class application stream may be eligible for an open work permit, provided they have submitted a complete application for permanent residence and a complete sponsorship application. Information is available online.