Employed by Canadian Company outside Canada

[Canada_soon2014]

Question for my friend:-

If I was hired by a reputable private Canadian company in one of there key regional head office outside Canada.
AND worked there full time basis on a permanent role (no requirement in contract to move to Canada)
Salary n tax all paid outside Canada to the country I was employed.

Time period while serving Canadian company, will it count for the Resident obligation?


Please see below Canadian Legislation and advise

28(1)
outside Canada employed on a full-time basis by a Canadian business or in the federal public administration or the public service of a province

OPTION 2. Employment outside Canada

You may count each day you were employed outside Canada if your employment meets the following requirements:

you are an employee of, or under contract to, a Canadian business or the public service of Canada or of a province or territory and
as a term of your employment or contract, you are assigned on a full-time basis to:
a position outside Canada
an affiliated enterprise outside Canada or
a client of the Canadian business or the public service outside Canada
For this application, a Canadian business is defined as:

a corporation that is incorporated under the laws of Canada or of a province and that has an ongoing operation in Canada
an enterprise that has:
an ongoing operation in Canada
is capable of generating revenue
is carried out in anticipation of profit
in which a majority of voting or ownership interests is held by Canadian citizens, permanent residents, or Canadian businesses as defined above or
an organization or enterprise created by the laws of Canada or a province


http://www.cic.gc.ca/english/information/applications/guides/5529ETOC.asp

 

[scylla]

Based on what we've seen CIC do, this time can be counted towards the PR residency requirement if you are first hired for a permanent role within Canada and then at a later date transferred to a permanent role outside of Canada. If you are hired for the role outside of Canada directly, then CIC doesn't seem to allow you to count this time towards PR. That's the general rule of thumb I would use.

 

[ImmiWorks]

To add a couple more details. The regulations enable permanent residents to comply with the residency obligations while working abroad, provided that:

• they are under contract to, or are full-time employees of a Canadian business where the assignment is controlled from the head office of a Canadian
  business;
• they are assigned on a full-time basis as a term of their employment or contract, to a
  position outside Canada with that business, an affiliated enterprise or a client;
• they maintain a connection to a Canadian business;
• they are assigned on a temporary basis to the work assignment; and
• they will continue working for the employer, in Canada, after the assignment.

 

[Canada_soon2014]

Thank you very much.

Just few more points to clarify my case.

The business was solely operated from the guideline/directions from Canada, as the company is big Canadian brand and Head office is based in Canada.

As the business expanded, I was outside in one of the regional headoffice outside Canada. But we used to work along Canadian peers, to cover global market customers.
I was direct employee of the company, on direct payroll, although the salary & tax was paid in local currency to my country.
My aim was to find a job internally and move within company to canada, but that didnt happen as the company started making people redundant due to lack of revenue.

So as mentioned above if those days can be used under resident obligation it means the PR is save

Any generous souls can confirm please

 

[Naheulbeuck]

Your question has already been answered unfortunately, you never worked for that company in Canada and the company has no plans to bring you to Canada, it does not consider your position as a temporary assignment therefore it is very unlikely that CIC will consider it as qualified time for the RO.

 

[scylla]

Thank you very much.

Just few more points to clarify my case.

The business was solely operated from the guideline/directions from Canada, as the company is big Canadian brand and Head office is based in Canada.

As the business expanded, I was outside in one of the regional headoffice outside Canada. But we used to work along Canadian peers, to cover global market customers.
I was direct employee of the company, on direct payroll, although the salary & tax was paid in local currency to my country.
My aim was to find a job internally and move within company to canada, but that didnt happen as the company started making people redundant due to lack of revenue.

So as mentioned above if those days can be used under resident obligation it means the PR is save

No - you won't be able to count these days towards PR.

 

[dpenabill]

Generally I am reluctant to definitively declare what the outcome will be in particular cases if there is any relevant question of fact in issue (such as a question of fact as to whether the particular employment for a Canadian business meets the criteria for the PR RO credit given to PRs working abroad for a Canadian business).

But unless you were employed in Canada, working in Canada, before being assigned to a position working abroad for the Canadian business, I tend to agree with what has already been suggested: the time is not likely to be credited toward compliance with the PR Residency Obligation, and the probability is strong enough most would agree with the definitive, negative response by scylla.

To qualify for the credit, the employment would also need to meet other criteria, including that posted by ImmiWorks. But the absence of first working for the business in Canada is enough to predict that IRCC will not allow credit for the time employed abroad by the Canadian business.

Whether or not, in contrast, the circumstances of employment and belief that such time would count, could support a H&C case, is a very different question.


Potential H&C case:

The statute and regulation could arguably be interpreted differently than CIC and IRCC have. But the case law indicates there is little or no chance of successfully pursuing this argument for the purpose of what the applicable law is. There are more than sufficient concurring conclusions by the Federal Court affirming CIC's approach to effectively close this door.

That is, a decision by IRCC denying credit for this time abroad employed by a Canada business is almost certainly going to be upheld as correct in law.

But to the extent an individual PR who was employed abroad by a Canadian business might have reasonably believed that the employment would be credited toward compliance with the PR RO, particularly an individual who reasonably believed the employment would eventually lead to working for the Canadian business IN Canada, that might suffice to make a H&C case based on this being a reasonable explanation for not returning to live in Canada sooner, an explanation justifying the PR's retention of status.

Probably a difficult case to make, but not impossible.

The statute (section 28(2)(a)(iii) in IRPA), after all, states that a PR's compliance with the residency obligation counts days "outside Canada employed on a full-time basis by a Canadian business."

The applicable regulation is Section 61(1), which defines what qualifies as a Canadian business, Section 61(2) which excludes any business that serves primarily to allow a PR to comply with the PR RO while residing outside Canada, and Section 61(3) which prescribes what the statutory provisions "employed on a full-time basis by a Canadian business" means. It is the latter which employs the term "is assigned," which CIC (and now IRCC) interprets and applies in a way that, in effect, requires assignment from a position first in Canada and with the intention to continue working for the employer in Canada after the assignment.

Neither the regulation nor the description of this credit in Appendix A (part of PR application guide explaining Residency Obligation, to which most IRCC information about the RO refers) explicitly states that the PR must be first employed in Canada (noting, however, it is likely considered to be implicit in the term "is assigned" and again, it is clear that the applicable statute and regulation have been interpreted and applied so as to require employment first in Canada).

Thus, if a PR had a subjective basis, reasonable in the PR's personal circumstances, to believe the PR's employment abroad for a Canadian business would directly lead to a position in Canada after a more or less certain term of assignment abroad, the PR might be able to make a persuasive H&C case . . . acknowledging making a mistake about the credit, but arguing it was a good-faith mistake in the PR's plan to come to Canada and settle in Canada with employment in Canada.

The strength of any H&C case depends on the totality of circumstances, so there are many other factors which will have an influence on how any such case goes. The more in breach of the PR RO, for example, the less likely such a case will succeed.

Odds of success go up if the PR is already back in Canada, working in Canada, and has been for some time, before the question of compliance with the PR RO comes up . . . but of course, for such an individual, one back in Canada and not yet reported for a breach of the PR RO, the better course is to avoid any situation which will make compliance with the RO an issue, that is, to avoid going abroad and avoid making any application to IRCC, including especially an application for a new PR card.

But for the PR in this situation who has already been reported for a breach of the RO, the H&C side of this may make a difference in how it goes on appeal.