Ottawa, Ontario, March 20, 2007
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review brought by Siddharth Juneja seeking an order setting aside a decision of the Immigration Division of the Immigration and Refugee Board (Board) by which he was declared to be inadmissible under section 41 of the Immigration and Refugee Protection Act, S.C. 2001 c. 27 (Act). These are the reasons for my judgment rendered orally at Edmonton, Alberta, on March 13, 2007.
BACKGROUND
[2] In August 2005, Mr. Juneja entered Canada from India as a temporary resident for the purpose of studying at the Northern Alberta Institute of Technology in Edmonton. His study permit was valid until July 30, 2006, and it expressly prohibited his employment unless otherwise authorized by the Department.
[3] In the course of an investigation, Mr. Juneja was observed to be working at a local Ford dealership in Edmonton. Mr. Juneja was arrested on May 2, 2006, for working without authorization contrary to section 30(1) of the Act. An admissibility hearing was then convoked under section 44(2) of the Act. On August 22, 2006, the Board declared Mr. Juneja to be inadmissible and issued an exclusion order requiring him to leave Canada.
[4] I understand that Mr. Juneja has since left Canada after the expiry of his student visa.
THE BOARD HEARING AND DECISION
[5] The Board was required to determine whether Mr. Juneja, as a foreign national, had violated section 30(1) of the Act by working in Canada without authorization. It was not disputed that Mr. Juneja did not have a work permit at the time he was observed in the local Ford dealership. What was in dispute was whether his activity at that business constituted “work” as defined by section 2 of the Immigration Regulations, S.O.R./2002-227 (Regulations). That provision states:
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“work” means an activity for which wages are paid or commission is earned, or that is in direct competition with the activities of Canadian citizens or permanent residents in the Canadian labour market.
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«travail » Activité qui donne lieu au paiement d’un salaire ou d’une commission, ou qui est en concurrence directe avec les activités des citoyens canadiens ou des résidents permanents sur le marché du travail au Canada.
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[6] Although the evidence presented to the Board concerning the terms under which Mr. Juneja was engaged by the Ford dealership suffered from some imprecision, the Board was satisfied that his activity did constitute “work” under the Act and Regulations. In that regard Mr. Juneja was performing work-like tasks for the dealership but was not being paid. The employer was banking or keeping track of his hours, presumably for the purpose of paying wages if and when Mr. Juneja received an authorization to work from the Department. The agreed wage was $8.00 per hour.
[7] The Board concluded that these arrangements met the definition of work. It found that the employer’s agreement to bank Mr. Juneja’s hours and to pay a wage of $8.00 per hour – albeit conditionally – was either an activity for which wages are paid or was, otherwise, in direct competition with the employment activities of Canadians or permanent residents.
STANDARD OF REVIEW
[8] The determination of whether Mr. Juneja was engaged in “work” as defined by the Regulations is a question of mixed fact and law because it requires the application of factual findings to a legal definition. It is, however, an issue which is primarily centered on a question of law which would attract less deference than a purely factual determination or a fact- intensive determination. In this case, I find the standard of review to be reasonableness simpliciter. Even if I am wrong about the standard of review, I am satisfied that the Board’s decision meets the lower standard of correctness.
ANALYSIS
[9] The Board made reasonable factual findings about the terms of Mr. Juneja’s engagement. It found that the arrangement provided for Mr. Juneja to be paid a wage of $8.00 per hour for the hours he had worked, but conditional on the subsequent issuance of a work permit. These findings were well supported by the evidence and, in any event, they are not challenged by Mr. Juneja.
[10] The question, then, is whether such a contingent arrangement to pay a wage for work performed meets the legal definition of work in section 2 of the Regulations. The Board found that it did and, in my view, the Board was correct.
[11] Mr. Juneja had an expectation of future payment and the dealership had at least a conditional and, perhaps, an absolute legal obligation to pay for the work he performed. Mr. Juneja’s “activity” was of a character for which wages are paid and where wages were anticipated.
[12] Even if Mr. Juneja is correct that the definition of “work” sets an absolute standard which is not fulfilled by a conditional arrangement for payment, his conduct is still caught by the second part of the definition – that is, the performance of an activity in direct competition with the activities of Canadians and permanent residents in the Canadian labour market. The employment of Mr. Juneja directly competed with others who were legally entitled to work in Canada. That is so whether a wage was paid or not. I do not agree with Mr. Juneja’s counsel that this part of the definition applies only to self-employed persons. The definition contains no qualification of that sort. I also do not agree that only the employer could be in direct competition. The employer was not competing with potential Canadian employees but Mr. Juneja was.
[13] Additional support for this interpretation can be found in the Regulatory Impact Analysis Statement published with the revised Regulations and in the Department Guidelines. Both indicate that the definition of “work” includes unpaid employment undertaken for the purpose of obtaining work experience, such as an internship or practicum normally done by a student. Although these references are not binding on the Court, they can be a helpful aid to statutory interpretation and certainly they do support the Board’s legal analysis in this case.
[14] I do not believe that the authorities relied upon by Mr. Juneja assist his argument in this case. Both the Bernardez v. Canada (1995), 101 F.T.R. 203, [1995] F.C.J. No. 1297 decision and the Georges v. Canada, [1978] F.C.J. No. 140, [1979] 1 F.C. 349 (C.A.) decision pre-date the regulatory change to the definition of “work”. The old provision spoke of an activity for which a person receives or might reasonably be expected to receive valuable consideration. That provision made no reference to competing for work that would otherwise be available to Canadians. Even at that, the Federal Court of Appeal in Georges, above, found that the essential concern of the prior definition was to protect employment opportunities for Canadians whether wages were paid or not. While both Georges and Bernardez recognized a need for flexibility in applying the previous definition, it is difficult to believe that either decision would support a finding that Mr. Juneja was not working on the facts of this case whether under the prior or current definition of “work”.
[15] In conclusion, I find the Board’s decision to be reasonable on the particular facts of this case and this application is, accordingly, dismissed.
[16] Mr. Juneja’s counsel proposed the following certified question:
Does the new regulatory definition of “work” include a reasonable expectation of payment?
Upon reflection, I am not disposed to certify this question. This case does not raise a pure issue of law but, rather turns on a set of facts which are particular to Mr. Juneja’s circumstances. I do not see this decision as giving rise to an issue of general importance in other cases. Furthermore, the issue raised would not be determinative in this case because the Board found that Mr. Juneja had breached both of the tests for “work” under the Regulations. Unless the issue proposed would be dispositive of the case, it is clear that a question ought not to be certified.
JUDGMENT
THIS COURT ADJUDGES that this application for judicial review is dismissed.
"R. L. Barnes"
FEDERAL COURT
NAME OF COUNSEL and SOLICITORS OF RECORD
DOCKET: IMM-4703-06
STYLE OF CAUSE: SIDDARTH JUNEJA
v.
THE MINISTER OF CITIZENSHIP & IMMIGRATION
DATE OF HEARING: March 13, 2007
REASONS FOR JUDGMENT
AND JUDGMENT BY: BARNES J.
APPEARANCES:
Mr. Obi Agbarakwe For the Applicant(s)
Mr. Rick Garvin For the Respondent(s)
SOLICITORS OF RECORD:
AGB Law Office For the Applicant(s)
2410, 10235 – 101 Street
Edmonton AB T5J 3G1
(780) 453-6774
Department of Justice Canada For the Respondent(s)
211 Bank of Montreal Building
10199 – 101 Street
Edmonton AB T5J 3Y4
(780) 495-4317