Residency obligation and working remotely for a publicly funded Canadian entity

[arun.k]

Hi,
This is an academic question at this point. I am working for a major Canadian public funded entity and has been lucky to be allowed informally to work remotely regardless of my location as long as the job is done. I have full time work status and my pay slip and T4 slips reflect that. Does the days spend outside country but still working full time for a publicly funded entity qualify in anyways to be counted towards residency obligation either directly or via a pathway? A small portion of the said absences from Canada were for exploring project partners in the country of visit although those trips were in 2 to 4 weeks range because I chose to spread my engagements and attend to other duties remotely.
Thanks

 

[armoured]

Hi,
This is an academic question at this point. I am working for a major Canadian public funded entity and has been lucky to be allowed informally to work remotely regardless of my location as long as the job is done. I have full time work status and my pay slip and T4 slips reflect that. Does the days spend outside country but still working full time for a publicly funded entity qualify in anyways to be counted towards residency obligation either directly or via a pathway? A small portion of the said absences from Canada were for exploring project partners in the country of visit although those trips were in 2 to 4 weeks range because I chose to spread my engagements and attend to other duties remotely.
Thanks

Short form answer is no, your time abroad where you decide to work remotely won't count for RO.

The intent and language is broadly meant to apply only to cases where an employee is 'posted' abroad, temporarily, by means of a formal assignment process.

Business trips - short term assignments, travel 'to explore project partners' might be a bit of a grey area (and depend on the exact status of the entity and your contractual arrangements, etc. But again, short form and to simplify since you say this is 'academic' - best to consider that such short trips won't count either. There are some limited circumstances where they might, conceivably - but as a rule of thumb, "if you need those days to be in compliance with your RO, they probably won't."

Meaning: it is in your personal interests to plan to remain in compliance with RO without consideration being given for those days. If you absolutely need them, it gets a lot more complicated and hard to document, with no way of getting confirmation or approval in advance, and all the risk for you, not your employer.

On the other hand - in my view - you have every normal right to agree with your employer as a publicly funded entity to limit such trips/service so as not to cause you compliance problems for your residency. (In practice hard to 'enforce' though if your employer really wants you to travel a lot - but employers that want you hopefully won't push too hard on that)_

 

[dpenabill]

Hi,
This is an academic question at this point. I am working for a major Canadian public funded entity and has been lucky to be allowed informally to work remotely regardless of my location as long as the job is done. I have full time work status and my pay slip and T4 slips reflect that. Does the days spend outside country but still working full time for a publicly funded entity qualify in anyways to be counted towards residency obligation either directly or via a pathway? A small portion of the said absences from Canada were for exploring project partners in the country of visit although those trips were in 2 to 4 weeks range because I chose to spread my engagements and attend to other duties remotely.
Thanks

Overall: NO likelihood the scenario described will support a claim for RO credit for the time abroad.

In particular, I largely agree with the overall conclusion offered by @armoured, as to the particular scenario described.

Beyond that, however, beyond implications about this particular scenario, there are some elements addressed here regarding which some clarification may be warranted. These observations are instigated by and oriented to what I consider to be a MYTH, regarding "business trips" (no one has ever provided this forum with any authoritative source which even comes close to supporting the view, often expressed here, that time spent going abroad on behalf of a Canadian business employer to work will not qualify for the employed-abroad-by-Canadian-business credit because it is or could be characterized as a "business trip"), which has been such a persistent myth this is something I have researched, analyzed, explored, and addressed in depth and at length (including, just this morning, looking at a number of cases I had not reviewed before). See https://www.canadavisa.com/canada-immigration-discussion-board/threads/working-abroad-ro-credit-including-business-trips-an-update.607559/

Otherwise, I would emphasize that the term actually used in the relevant cases, over and over again, is "assigned" abroad rather than "posted" abroad. The latter, "posted," is probably used by many to mean close to the same thing as "assigned," and the terms used are far less important than the substantive nature of the employment. But in addition to use of the term "assigned" in the applicable Regulation (Regulation 61(3) Immigration and Refugee Protection Regulations) itself, numerous official decisions, including Federal Court decisions in addition to IAD panels, specifically focus on the terms "assigned," and "assignment," and some go into depth interpreting the meaning of "assigned" or "assignment" in particular. I do not mean to get bogged down in distinguishing the relative meaning of these terms, or perhaps more significantly their connotations, but in regards to this credit, the focus has been consistently, emphatically, on the meaning of "assigned" or "assignment," so these are the terms that loom large in understanding and figuring out how this credit is applied in practice.

But this leads back to a bigger concern regarding what some describe as "business trips," which is a label that is largely NOT relevant to whether, or not, the time the PR is abroad in the employ of a Canadian business will qualify for the employed-abroad-by-Canadian-business credit. That is, whether the time a full time employee of a Canadian business is abroad as assigned by the employer, qualifying for the credit, does not depend on whether the label "business trip" applies to the work or not.

(To be clear, what the OP describes does not appear to come close to even arguably qualifying for this credit. Whether or not the "Canadian entity" involved meets the qualifications for a business in Canada. This discussion is a not-so-relevant tangent.)

For whether a business trip will count, or not, the relevant questions are the same as in regards to any other situation where a PR is sent abroad to work on behalf of the employer; the relevant questions are whether

(1) the PR is in the full time employ of the employer (or affiliate if applicable),​

(2) the employer is a Canadian business (meeting the criteria for what constitutes a Canadian business),​

(3) the PR is "assigned," by the employer, to the job/work being done abroad, and​

(4) the assignment is temporary (subject to the criteria for determining this, like definite plans for the PR to return to a position in Canada)​

Which means a business trip should count in many scenarios, according to the applicable rules and practice, BUT might NOT count in other scenarios. Does NOT depend on whether the label or characterization "business trip" appropriately or not describes the nature of the PR's working abroad.

Leading back to the OP's scenario and . . .

Business trips - short term assignments, travel 'to explore project partners' might be a bit of a grey area (and depend on the exact status of the entity and your contractual arrangements, etc.

Again, I agree with @armoured's overall conclusion. Including here . . . except in the particular context here I would not characterize this as a "grey area." As the OP sets the stage, in particular in a situation where the PR is already abroad and the circumstances are such that the employed-abroad-by-Canadian-business credit is not applicable, the time engaged in a short-term assignment ("business trip" or otherwise) will not meet the criteria necessary for the credit to apply. There are actually cases fairly close to this, which I remember in general terms but cannot put my cursor on at the moment.

Unraveling how the facts fit into the criteria, in this scenario, may seem to be a bit fuzzy, potentially getting into a sort of grey area, but not really. Complex, yes, but in sorting through the relevant elements, this should not be a grey area, not by much anyway. To some extent this leads to what meets the criteria in the Regulation specifying that the PR be "assigned on a full-time basis," which could invite convoluted interpretations and applications, but that would mostly be rooted in pushing an arguable though not really persuasive position, while in contrast, in reality, in practice, it is usually fairly easily sorted out and not much of a grey area at all.

It illustrates how dangerous focusing on labels can be. A "business trip" can count. A "business trip" might not count. Characterizing the PR's time working abroad a "business trip" does not illuminate much at all about whether it will qualify for this credit.

 

[armoured]

Which means a business trip should count in many scenarios, according to the applicable rules and practice, BUT might NOT count in other scenarios. Does NOT depend on whether the label or characterization "business trip" appropriately or not describes the nature of the PR's working abroad.
...
Again, I agree with @armoured's overall conclusion. Including here . . . except in the particular context here I would not characterize this as a "grey area."

I can't help but agree here. To clarify only, my use of 'posted' instead of 'assigned' and both of those vs 'business trip' or other such was not meant to draw any distinctions not in the law or regs, but only a bit more easily understood.

To wit, for the use of such shorter-term 'trips' for RO compliance: as I understand the issue with shorter-term assignments, it may practically not be feasible to demonstrate (i.e. document) that they were indeed assignments and met all the requirements to qualify. (As opposed to a 'posting' where one would almost certainly have a specific contractual or other written arrangements that might make this clear).

Hence out of this I used 'grey area' not to refer to any formal definition or limitation, but whether it's really practical to rely upon such 'assignments' qualifying for the RO. (And whether any PR wishes to be in a situation where they need to dispute what IRCC may decide.)

If there is consistent information demonstrating that PRs can reliably make use of such shorter-term assignments (business trips for lack of a more concise term), particularly where documentation may be weak, would love to hear it.

And at any rate, certainly didn't want to muddy the waters further.

 

[arun.k]

Thank you both for weighing in. It is indeed a grey area. In my personal case I am well above RO to maintain PR but wasn't sure if using some of those assigned trips might be worth considering to get closer to citizenship.

 

[scylla]

Thank you both for weighing in. It is indeed a grey area. In my personal case I am well above RO to maintain PR but wasn't sure if using some of those assigned trips might be worth considering to get closer to citizenship.

These days won't count towards citizenship. Best case scenario, they might count towards your PR residency obligation. However you won't be able to count them for citizenship purposes. Different rules apply for RO for PR vs. RO for citizenship.

 

[arun.k]

These days won't count towards citizenship. Best case scenario, they might count towards your PR residency obligation. However you won't be able to count them for citizenship purposes. Different rules apply for RO for PR vs. RO for citizenship.

Oh I see, that is good to know. On a related note, do you know how this clause is used to determine RO?
Situation 3. Accompanying a permanent resident outside Canada
You may count each day you accompanied a permanent resident outside Canada as long as:

• the person you accompanied is your spouse, common-law partner or parent (if you are a child under 19 years of age); and
• the person was employed on a full-time basis by a Canadian business or in the public service of Canada or of a province or territory during the time you accompanied them.

Proof needed
You must provide supporting documents to prove that:

• The person you are accompanying is a permanent resident;
• You are the spouse, common-law partner or child of that person; and
• The permanent resident you are accompanying meets the residency obligation.

I ask because this 'situation' doesn't ask for 'full time' posting and might be applicable for a spouse or child for PR RO?
Thanks again

 

[scylla]

Oh I see, that is good to know. On a related note, do you know how this clause is used to determine RO?
Situation 3. Accompanying a permanent resident outside Canada
You may count each day you accompanied a permanent resident outside Canada as long as:

• the person you accompanied is your spouse, common-law partner or parent (if you are a child under 19 years of age); and
• the person was employed on a full-time basis by a Canadian business or in the public service of Canada or of a province or territory during the time you accompanied them.

Proof needed
You must provide supporting documents to prove that:

• The person you are accompanying is a permanent resident;
• You are the spouse, common-law partner or child of that person; and
• The permanent resident you are accompanying meets the residency obligation.

I ask because this 'situation' doesn't ask for 'full time' posting and might be applicable for a spouse or child for PR RO?
Thanks again

Which RO are you asking about? PR or citizenship? This applies to PR RO - not citizenship RO.

 

[arun.k]

Which RO are you asking about? PR or citizenship? This applies to PR RO - not citizenship RO.

PR only.

 

[dpenabill]

It is indeed a grey area.

Well, to be clear, NO. Not a grey area. As stated up front: Overall: NO likelihood the scenario described will support a claim for RO credit for the time abroad.

The time abroad as described in the OP is NOT going to qualify for a credit toward RO compliance.

I would also note, without wrangling with finer details, most indications are that the employed-abroad-by-Canadian-business credit is narrowly applied. So even for a situation that might be thought of as in a "grey area" it is a far more likely to NOT qualify for the credit, thus not be in a grey area at all in the way IRCC approaches these situations. The way this credit has been interpreted and applied, there is very little "grey area." If it is not clearly in, the bookmakers odds all point to it being out.

. . . but wasn't sure if using some of those assigned trips might be worth considering to get closer to citizenship.

Simple NO. More emphatically, perhaps, than in regards to the RO, but no is no.

On a related note, do you know how this clause is used to determine RO?
Situation 3. Accompanying a permanent resident outside Canada

If a PR is accompanying a parent or spouse who is a PR, and that parent or spouse qualifies for the employed-abroad-by-Canadian-business credit, the accompanying PR also qualifies for the credit. All the same criteria applies. This provision simply means that family abroad with the PR also gets the RO credit . . . if the PR they are accompanying qualifies.

DISTINCTION: Who is in the employ of public service of Canada or a province is almost always very clear, and this is about being employed by the government, not just some other organization or entity engaged in what might be descriptively referred to as "public service." This part rarely raises any does-it or doesn't-it questions. That is why my observations focus on employment with entities qualifying as a "Canadian business."


More Re "Business trips" in particular:

I would further add, whether for clarification or emphasis, that even though business trips might qualify for the credit, or not qualify, that is NOT about business trips being in some grey area subject to interpretation. That is about the fact that the work abroad is characterized as a "business trip" is NOT WHAT MATTERS. So some count. Some do not count. But that depends on the particular circumstances attendant the work abroad, NOT whether it is a business trip.

Leading to . . .

. . . for the use of such shorter-term 'trips' for RO compliance: as I understand the issue with shorter-term assignments, it may practically not be feasible to demonstrate (i.e. document) that they were indeed assignments and met all the requirements to qualify. (As opposed to a 'posting' where one would almost certainly have a specific contractual or other written arrangements that might make this clear).

Apart from the OP's scenario, which will NOT qualify for the employed-abroad-by-Canadian-business credit, as previously discussed, (and there is NO such credit toward meeting the citizenship presence requirements), I do not see a practical problem dealing with whether time abroad qualifies for the credit arising from shorter-term assignments.

However, that is a more complicated tangent. There are some decisions, well one in particular, that might be seen as muddying the water. Shen v Canada 2017 CanLII 56623 https://canlii.ca/t/h5pqz No need to go down that rabbit-hole here.

Overall, there is little sign in all the cases I have reviewed that short-term trips abroad for an employer will raise issues, at least ordinarily. It's long-term posts abroad with relatively minimal ties to operating a Canadian business, or arrangements which one way or another run counter to the purpose and intent of the RO, that mostly come up in the litigation.