Officers would need to determine whether applicants under the Canadian Experience Class (CEC) program were employees or self-employed individuals during their period of qualifying work experience in Canada. For determining this, Citizenship and Immigration Canada (CIC) officers would need to consider various factors such as:
- The degree of the worker’s control or autonomy in terms of how and when the individual performs work, as well as the methods used for carrying out the expected tasks
- Assessing whether the worker owns and / or provides tools and equipment for accomplishing the work
- The degree to which the worker has to perform the work personally and whether the worker has the option of subcontracting work or hiring others to help and assist with the completion of the work
- The degree of financial risk assumed by the worker and,
- This would include determining whether the worker needs to make any investment for completing the work or providing the service and whether the worker is free to make business decisions that affect the worker’s ability to realise a profit or incur a loss (as opposed to the opportunity for earning commissions or other productivity bonuses)
- Any other relevant factors, including written contracts
Situations could arise where the officers need additional information for determining whether applicants are employees or self-employed professionals. The authorities have published a Canada Revenue Agency (CRA) guide titled Employee of Self-employed? Officers could refer to this guide for more details on the above-mentioned factors. They could also refer to this guide for other indicators that they could use for determining whether an individual is a self-employed person or an employee.
Oftentimes, officers experience difficulties in determining the degree of control when they examine the employment of professionals such as:
- Physicians and,
- Information technology consultants
These individuals possess specific expertise and specialised training. As a result, they usually do not need much (if any) specific direction while discharging their daily activities. Therefore, when examining the factor of control for these individuals, officers would need to focus on:
- The payer’s control over the worker’s daily activities and,
- The payer’s influence over the worker
Similarly, there might be certain occupations where individuals could be self-employed or in an employee-employer relationship, based on the specific circumstances of their employment. Officers would need to refer to the Canada Revenue Agency (CRA) website for more details on determining a worker’s employment status for an assortment of specific employment categories.
The authorities typically consider consultants or contractors as self-employed individuals. This is because these individuals usually work in a contract for services business relationship. Examples of such individuals could include independent contractors in the financial, real estate and business services industries. In addition, the authorities also consider individuals who hold a substantial ownership and / or exercise management control of a business for which they also work, as self-employed professionals.
Situations could arise where prospective applicants are unsure of their employment statuses. These individuals might not even have the documentation specified above. In this scenario, these individuals have the option of requesting a ruling from the Canada Revenue Agency (CRA) for obtaining a determination on their status. Such a ruling would typically state whether, in the view of the Canada Revenue Agency (CRA):
- A worker is an employee or a self-employed professional and,
- The worker’s employment is pensionable or insurable
For requesting a ruling, workers would need to send a letter or complete the Form CPT1 (Request for a Ruling as to the Status of a Worker under the Canada Pension Plan and / or the Employment Insurance Act) to their tax services office. Thereafter, the workers could submit the ruling to Citizenship and Immigration Canada (CIC) for supplementing a Canadian Experience Class (CEC) application.
Officers would need to consider each application under the Canadian Experience Class (CEC) on its own merits. They would need to review all the information available to them at the time of decision before arriving at a final decision. Citizenship and Immigration Canada (CIC) officers would typically give due consideration to a Canada Revenue Agency (CRA) ruling on an applicant’s employment status. However, they would need to remember that such a ruling does not constitute conclusive evidence. The Citizenship and Immigration Canada (CIC) officers would bear the responsibility for taking the final decision about the employee status of the applicant for assessing whether the applicant meets the prescribed Canadian Experience Class (CEC) requirements.
Source: Citizenship and Immigration