Like so many issues, the scope and application of the
assigned-abroad-by-a-Canadian-employer-exception, which allows a PR to count time abroad toward compliance with the PR Residency Obligation, is complex and very much dependent on the specific facts in each respective individual case. Some generalizations are
usually true but can be profoundly misleading relative to the vagaries of real-world scenarios.
There is no one-rule-fits-all governing the exception.
Note, however, for the last many years the exception has been narrowly interpreted and strictly applied, leading to the caveat that unless it is certain the exception will be allowed, it is prudent to assume it will not be.
torontosm said:
Business trips do not count towards the residency obligation.
I disagree. In general, there is no reason why a "business trip" would not count so long as both the employer and employment otherwise satisfy the criteria for the
assigned-abroad-by-a-Canadian-employer-exception which allows a PR to count time abroad toward compliance with the PR Residency Obligation.
That said, what constitutes a "business trip" is ordinarily so brief that there should be no need for a PR to obtain a credit in order to meet the PR RO. Note, for example, if the PR's actual presence in Canada totals 731 days within the preceding five years, there is
NO call to assess whether the credit for the exception applies. On the other hand, someone spending so much time abroad for work that he or she was absent from Canada for more than 1095 days during the preceding five years, clearly was not abroad merely for typical business trips.
Again, the overriding caveat warrants noting with emphasis: The caveat is that the exception is so narrowly interpreted and applied, there are only very limited situations in which a PR working abroad will be allowed the credit, so much so it seems unusual that any PR who needs the credit will actually qualify for it.
This warrants a more thorough explanation, which I may get to later in a subsequent post.
In any event, while there are definite scenarios which will qualify for the exception, the practical reality is that many if not most of those PRs hoping to qualify for this exception are attempting to meet the technical criteria even though their work or life is essentially based abroad. The OP's scenario, in particular, illustrates this. And as
Rob_TO explicitly responded, that is not how the exception works.
Then there is the query now posed:
axelfoley said:
On this topic... assume there is a Canadian company (a branch office/subsidiary of a foreign company) employing a PR in Canada, whereby the PR is required to travel to various countries on business, perhaps 3 to 6 months per year cumulatively per year. This is extended business trips of perhaps 2 to 4 weeks at a time to meet clients an work on international assignments, and liaise with the head office outside Canada. The PR would be resident in Canada for more than 6 months per tax year and is tax resident in Canada and in no other country.
Would the time spent away from Canada (3 to 6 months per year on extended business trips in various countries) count towards the Residency Obligation? Thanks for any guidance...
As I noted, I disagree with the observation that a "business trip" will not qualify for the exception. The real issues in this scenario, however, are whether the employer qualifies and whether the employment qualifies. If the extent of the "business trips" abroad result in spending more than 60% of the time abroad (otherwise, no credit is necessary, and thus is not even relevant), that is bound to invite close scrutiny and a strict application of the requirements.
Moreover, there is this:
axelfoley said:
I was given a s.44(1) report to say that there were grounds to believe that I am a PR who is inadmissible for failing to comply with the residency obligation under s.28 of the IRPA Act.
This kind of history is almost certainly going to mean far more skeptical scrutiny, and a more strict approach to assessing a claim for credit for time abroad. Another PR in a similar employment scenario might get the credit whereas a PR with a history of extended absence from Canada will not.
Context matters. The PR's history matters. If it appears the employment is at all rooted in an effort to skirt actually settling in Canada and being in-fact
permanently residing in Canada, of course IRCC and CBSA are going to be more skeptical and strict.
Thus, for example, the PR who is attempting to get the credit a second time is likely to face a very skeptical and strict approach compared to, say, a PR who needs the credit for a single five-year time period.
I realize there are more than a few PRs who tend to approach their PR status differently, but the practical reality is that Canada considers PR status to be about
permanently settling and residing in Canada, and any PR who does not appear to be in-fact permanently settled and residing in Canada is almost certainly going to face elevated scrutiny and a more skeptical assessment . . . especially for a PR asserting the credit for time-employed-abroad-by-Canadian-employer exception.
Thus, back to the business trip scenario and query posed:
For example,
" . . . assume there is a Canadian company (a branch office/subsidiary of a foreign company) employing a PR in Canada . . ."
Which is it? A Canadian company, or a branch or subsidiary of a foreign company?
To qualify for the credit, the primary element is that the employer is a Canadian company, operating a business based in Canada and managed in Canada. Who owns the company is a peripheral matter. Additionally, the employee must also be employed for a position in Canada.
Thus, yes, a Canadian company may be a branch or subsidiary of a foreign company. But that is about who owns the company. The fact a particular company is owned by a foreign company (is a branch or subsidiary of a foreign company) is
NOT about where the company itself is organized, authorized to do business, where that particular company's business is based, or where the headquarters for
that company are located . . . or, importantly, where those who direct the work of the employee are located.
Foreign airlines, for example, have branch offices in Canada. They have a certain amount of business in Canada. Their business, however, is not based in Canada. A pilot who flies for such an airline, even if that pilot is essentially working out of a location in Canada, probably will not be entitled to the credit for time spent flying abroad.
In contrast, a pilot employed by Air Canada who was hired in Canada, whose position is managed by an office in Canada, but who predominantly flies international routes and is thus abroad so much that she is actually outside Canada more than 1095 days during a five year time period, will probably be entitled to the credit. But note, if those who manage that pilot's schedule are actually located in a location abroad, maybe NOT.
All the pieces of the puzzle must come together to make a complete picture of a person employed in Canada by a Canadian employer, abroad pursuant to a temporary assignment. If any piece is absent, there is a significant risk the exception will not be allowed.
While it is difficult to outline many real-world scenarios in which the credit is both available and needed, there are some:
- airline pilot or flight attendant employed by Canadian-based airline who flies international routes
- trucker employed by a Canadian-based company and operating out of a Canadian location but driving routes into the U.S.
- oil rig worker employed by a Canadian-based company and assigned to a rotation-schedule aboard an oil rig outside Canada
- technical worker (engineer or IT or mechanical technician) employed by a Canadian manufacturer of large machinery who is periodically assigned abroad to assist foreign customers in the installation and set-up of the machinery
The latter, for example, might be based out of a particular location in Canada but be sent abroad so often, from one installation project to the next, as to fall short of actual physical residence in Canada. And this individual should have little or no trouble obtaining the credit for the
assigned-abroad-by-a-Canadian-employer-exception.
For oil rig workers, and airline employees, and truckers, who the employer is makes a huge difference. If it is not a Canadian based employer, even if the individual himself or herself is essentially based in Canada and goes on assignments from a location in Canada, there is a high risk the credit will not be allowed.
There can be other critical factors. For the trucker, for example, it may make a difference if the trucker is dispatched from a location in the U.S. rather than in Canada, indicating the employment is for a permanent position abroad rather than involving a series of temporary assignments abroad.
Similarly, for a technician like I described above, one periodically assigned to foreign locations where the equipment is being installed, it there is a foreign based business underlying all the work being done abroad, and a more or less paper connection to a facility in Canada, that is not likely to work. IRCC can, and often will, look past the paperwork.
In other words, if someone is really employed to work abroad, there is a big risk that no matter how much it is made to look like Canada-based employment on paper, IRCC will see past the formalities and deny credit.
Again, for all scenarios in which the credit might be available, it is nonetheless critical that the employment be a full time position and a
temporary assignment, and as such, thus, usually (nearly always) the employee must be employed for a position
in Canada, then assigned to go abroad, temporarily, with the expectation the employee will return to his or her position
in Canada at the conclusion of the assignment.
Observation regarding overall situation:
My sense is that a trucker living in Canada with a family in Canada and unequivocally working for a Canadian business, will not have any problems regarding the PR RO despite spending an average of more than 230 days a year on the road in the U.S. Similarly for an airline pilot or flight attendant working for Air Canada. But if the trucker, for example, is employed by a family owned trucking business which minimal routes in Canada, almost all actual routes in the U.S., the scales tip in the negative direction.
The particular details, the context and circumstances matter.
Moreover, if there is a big shortfall in actual presence, that is going to raise a huge red flag and invite far more skeptical scrutiny. As has been noted in another topic, the trucker who works out of a Canadian location but drives long-haul routes into the U.S., should ordinarily not be outside Canada even 200 days of the year, let alone more than 200 days of the year. And a PR can be abroad 200 days a year, up to 218 days a year, and have no need for the credit. So a new immigrant who took a year or two to settle in Canada, then started such a trucking job, is probably going to be OK. But someone who has been a PR for more than five years, then trying to justify falling short of the PR RO and seeking this credit, that will not look so good. Again, the particulars matter and the context matters.
Thus, my sense is that the overall impression will matter a great deal. If it looks like the PR is engaged in the employment so as to facilitate being abroad, my guess is that the particular details will get a far more thorough and skeptical review, one tending to be focused on reasons to deny the credit. If it looks like the PR's employment is essentially a job abroad, likewise, that is more likely to invite a very strict and thorough assessment with IRCC looking for reasons to justify denying the credit.
Thus, for example, for the query posed by
axelfoley, the context includes having been previously reported for a breach of the PR RO. And again, of course this is going to make it much more difficult to persuade IRCC (or CBSA) to allow a credit for time spent abroad based on the exception for being assigned abroad by a Canadian employer.
Maybe IRCC will be more liberal in its approach to these scenarios than CIC was for the last many years. But the IAD cases over the last many years clearly suggest an almost draconian approach which, again, has meant a very limited, highly restrictive application of this credit.
