The Canadian Immigration System, The Trucking Industry, and Foreign Drivers and Related Industry Workers

 

Canada, through a patchwork of both federal and provincial programs, maintains a balancing act: on one hand, protecting Canadian workers, and on the other hand, allowing Canadian companies to secure foreign workers where there is a demand.

Not unlike other legal systems, tweaking one element of the system often throws another element off kilter; therefore, there is a constant rejuggling of the systems. The interplay between the multiple jurisdictions involved – provincial and federal – only complicates the situation even further.

Nowhere are the positive and negative aspects of this balancing act revealed then in relation to the trucking industry.

Background

There are many foundational concepts that require consideration before delving into the Canadian immigration system. Among other important concepts is the ‘NOC’ – the National Occupational Classification. This is essentially a listing and classification of all possible occupations and a categorization of the occupations into a hierarchy of levels. The NOC is divided into five broad levels:

– NOC 0: Managerial-level occupations.

– NOC A: Occupations typically requiring a university degree.

– NOC B: Occupations typically requiring a post-secondary diploma or similar credential.

– NOC C: Occupations requiring secondary school or occupation-specific training.

– NOC D: Occupations that have on-the-job training.

For reference, note that truck drivers are considered NOC C.

Any understanding of the ability to secure foreign workers in Canada requires a recognition of the NOC categories. This is one ‘gate’ (of many) by which Canada decides what types of workers may be in more demand at a particular time, or to whom exceptions may apply, but it is a thread which runs through all other considerations.

Temporary Work

General Considerations

In order to understand the issues that impact the trucking industry specifically, it is important to step back and get a bird’s eye view of the immigration system in general. As noted, a prime consideration of the immigration system – at least in terms of allowing foreign workers into the country – is protecting the Canadian labour market. As such, the real starting point in the system is a general disallowance of foreign workers from entering the country. This may sound draconian, and given the fact that so many workers do come to Canada, this stating point may seem hard to believe, but this is indeed the starting point.

However, the law then essentially relents in certain situations and provides a system to overcome the disallowance when certain conditions are met. This process is what is known as the ‘LMIA’ process – a Labour Market Impact Assessment. This as a process whereby an employer must show (through recruitment efforts, etc.) that it could not find a Canadian candidate for a position and is seeking government permission to allow a foreign worker to apply for the job. This would be the primary tool for seeking to bring a foreign worker – and notably a truck driver – to work in Canada.

NOTE: As of the time of preparation of this article, the federal government has announced that due to the COVID-19 situation, truck drivers have been classified as an essential service and the recruitment requirement has been waived until October 31, 2020. See more on COVID-19 related issues below.

In some situations, beyond the scope of this article, the law will relent even further and allow some people to work in Canada even though the employer has not sought an LMIA. As just a brief overview for the sake of general consideration of the issues, there are numerous exceptions to the LMIA requirement – and indeed, where an employer can find a relevant exemption, it is essentially without exception that they should take advantage of it. Some LMIA exemptions include:

– Intra-Company Transfers. In situations where a person holds a senior managerial or specialized knowledge position in a foreign affiliate of a Canadian company, he/she can work in Canada.

– Treaty-based professionals. Under various agreements, certain professionals can work in Canada as well. Some of the relevant treaties include NAFTA (soon to be the USMCA) for Americans and Mexicans, CETA for European Union citizens, and CPTPP for citizens of various other Pacific Rim countries. There are other treaties with other countries that can be of value, and should be researched when applicable.

– Reciprocal Benefit. In some cases, where a large employer shows that it is giving opportunities to Canadians outside Canada, it may be allowed to seek a foreign worker in a kind of ‘tit-for-tat.’

– Francophone Mobility. Among other more novel exceptions, and some that come and go is a program that allows some French speakers to work in Canada in any province
outside Québec.

In each of the above categories, there are certainly other criteria, and applicants will typically need to be working in relatively higher-level fields – NOC 0, A, or B. Though these categories may not work for truck drivers per se, they should not be overlooked for industry-related cases – for example, more senior company personnel in larger organizations and professionals/technicians supporting the company in any way.

The Trucking Industry

With the general concepts relating to work permits now considered, an employer can consider issues relating to its industry specifically. In terms of trucking, the key will be to substantiate a shortage in the field. As noted, this is done through an LMIA. To show the shortage, evidence will be required. This will certainly require advertising but can also include industry information, published statistics, or any other evidence of a shortage. It will also be important to identify foreign candidates that will be able to fulfill the obligations – including consideration of language, experience, etc. Having an LMIA is important but so too is ensuring that the worker is qualified. Both elements must be approved for the foreign worker to be able to seek employment in Canada.

Permanent Residence

Under both federal and provincial systems, there are opportunities to seek permanent residence in Canada (and ultimately, citizenship).

Federal Immigration

Under the federal system – in addition to family-based opportunities and business-related applications – there is the ‘Express Entry’ system for most workers. Though this term is thrown about a fair bit, Express Entry is not really a system itself but rather an umbrella for selecting immigrants from three categories it encompasses. Those categories are:

– Federal Skilled Workers. Workers in NOC 0, A, or B occupations who meet certain minimum criteria relating to factors including experience, education, language ability, etc.

– Canadian Experience Class. Workers in NOC 0, A, or B occupations who have worked in Canada for at least one year

– Federal Skilled Trades Program. Workers in various trades, who would be at a NOC B level (and also meet certain criteria re language and other factors)

Yet again, none of these may be applicable for drivers per se, but may be useful for other workers in a trucking organization.

Provincial-based Immigration

Through a series of provincial-federal agreements (and in the case of Québec, a separate selection system), each province and territory has its own immigration system, which allows it to nominate a specified number of permanent immigration applicants each year. Each province has its own programs and criteria but, in general, each province has a business-related scheme – which allows businesses that invest in the province to secure immigration for qualified business candidates – and an ‘economic class’ – which allows nomination based on various employment-related criteria, generally sponsored by an employer in that province. It should also be noted that a common (though not unanimous) thread in relevant provincial programs is a point system based on selection criteria set by the province, which garners entry into a pool; the province will then selected candidates with minimum scores set for draws held from time to time.

A brief review of the western provinces’ programs, as they may relate to truck drivers or related occupations (e.g. mechanics, technicians, etc.) is as follows:

 i. Alberta

The primary legal vehicle to seek permanent residence is the ‘Alberta Opportunity Stream.’ Alberta maintains a list of ineligible occupations – and truck drivers are not on the list, meaning they are eligible. Selection criteria then include that the driver must already have been working in Canada (at least 12 months in Alberta or 24 months elsewhere), must meet criteria for minimum language ability, must have a high-school diploma, and must have a full time job offer (as an employee – not a contractor, etc.) from an Alberta employer.

 ii. British Columbia

B.C. maintains an ‘entry level and semi-skilled worker’ category. Selection in this category requires that the driver have been working with a B.C. employer for nine months, have a high school education, and meet certain language criteria.

iii. Manitoba

Manitoba maintains an in-demand occupations list. Truckers are not on the list. For occupations not on the list generally, it is still possible for workers to apply, again with an evaluation of various factors and a point system. The government of Manitoba does recognize the need for long-haul truck drivers and does allow employers to recruit foreign truck drivers through its provincial nominee program – but they have stringent requirements to verify that such recruitment is done – only after an appropriate attempt to find Canadians has been made, that the credibility of the employer can be established, and that the prospective driver meets criteria re experience ‘comparable’ to North American experience, and also meets other criteria re language, high school education, etc.

iv. Saskatchewan

Saskatchewan recognizes the demand for long-haul truck drivers and has a program to allow them to seek permanent residence through its provincial nominee program. To qualify, the driver must have worked with a Saskatchewan trucking company for at least six months, hold a Saskatchewan Class 1A licence, have an approved full-time job offer from the employer, and show sufficient language skills. Targeted draws are then held to allow qualified candidates to seek permanent residence.

COVID-19 and the Trucking Industry

Since the commissioning of this article, the world has changed – dramatically. In addition to other modifications to our daily lives, the immigration system has been impacted. Here are some issues that temporarily impact the industry during this crisis.

Work Permits

Separate from the issue of trucks entering Canada for delivery of essential goods, and allowing those drivers to carry out their duties without the need to self-isolate for 14 days (as others entering Canada are required to do), the general work permit system is still operating. LMIAs are being issued as are work permits. The system may have slowed a bit and we do see some officers, who are under the respectfully, incorrect and/or overzealous, impression that those seeking work permits must be doing so in industries defined as ‘essential,’ but pronouncements from Immigration Canada indicate that the system continues to operate. People who cannot come to Canada are those coming for leisure but those coming to work, are still permitted entry. One interesting caveat though is that they must be entering Canada – whether by air or land – from the United States. Further they must self-isolate for 14 days once they arrive (though they must be paid for this time in self-isolation).

Given the foregoing, the statements above about the work permit system generally, and vis-à-vis truckers, remain true. As noted above, however, the recruitment requirement for truckers has been waived until October 31, 2020.

Permanent Residence

The federal system discussed above also remains open. Certainly, it may be less applicable to truck drivers per se, but in theory, nothing has changed in the federal system.

In terms of provincial programs, the general rule across the country is that the programs remain open, but slowed. In some cases, selection draws have been postponed and, in some cases, staffing has been reduced, which is the cause of the slowdown but it does not seem that any program has closed. There are some provinces that have actually not declared any kind of emergency or otherwise indicated any changes that may impact provincial nominee programs (in terms of western provinces, Manitoba has not declared any emergency as of the time of preparation of these materials).

Summary

This article of course can only glean the surface of the complex issues involved in hiring foreign truck drivers, or others connected to the trucking industry. The information, however, should allow employers to get a broad picture of the issues, allowing them then to drill down as necessary for their own purposes when the need arises.

Benjamin A. Kranc is principal of Kranc Associates, a Canadian corporate immigration law firm. Ben obtained his LL.B. from Western University. Ben was called to the Bar in 1988, and certified as a specialist in immigration law by the Law Society of Ontario in 1997. Ben is author of ‘North American Relocation Law’, and lectures at the University of British Columbia Immigration Program. For more information, please see www.kranclaw.com. Ben can be contacted at bkranc@kranclaw.com or 416-977-7500.