Operational Bulletin 303 - May 2, 2011

This section contains policy, procedures and guidance used by IRCC staff. It is posted on the department’s website as a courtesy to stakeholders.

Fishing (or Hunting) Outfitters—Additional Guidance for Officers Processing Entries into Canada of Foreign Outfitters

Issue

The purpose of this Operational Bulletin (OB) is to provide additional guidance to all Citizenship and Immigration Canada (CIC) and Canada Border Services Agency officers who process temporary resident foreign nationals (FNs) entering Canada to run fishing or hunting outfitter operations in Canada, or to work for one as a guide. This guidance will be added to the Temporary Foreign Worker Guidelines (FW 1), sections 5.30 and 13.4, in a future update.

Background

  • Officers have expressed concern regarding how to process entries into Canada of FNs who are performing various types of fishing or hunting outfitting and guide activities.
  • Many of these operations do not fit the classic model of business entities, and often the FNs associated with them do not regard themselves as operating a business. These operations frequently involve FNs hosting family members, friends or others. In many cases, however, the FNs are receiving payment for services and, in some cases, making profits.
  • These operations function in various ways, with a wide variety of organizational structures. Some are registered companies in Canada, with a Canada Revenue Agency Business Number and/or pay Canadian taxes. In some cases, one FN has complete ownership, while in others several FNs own the operation (in equal or differing proportions).
  • Many operations charge fees, which may simply cover costs incurred or may provide profit to the owners. The fee may be charged to cover one or more of the following: Ability to fish, transportation, accommodation, meals, fishing equipment/supplies, boats and/or the services of a fishing or hunting guide.
  • In some cases, the operations are staffed solely by the owners, while in others the FN owners pay wages to employed staff at the business (i.e. fishing guides, cooks, hospitality staff, etc.), who may be either Canadian nationals, residents, FNs or a combination. Some operations do not purchase any goods or supplies in Canada, but instead bring them from the United States, while others purchase their goods, supplies and services, either wholly or in part, in Canada.

Current policy/procedures

  • Section 13.4 (Foreign camp owner or director) of the “FW 1 Guidelines” states:
     
    “For a camp owner, director or their spouse, a work permit is required, but they are exempt from an LMO pursuant to R205(a), C11.
     
    Other members of the foreign owner’s family, should they wish to be employed by the camp, will be subject to the LMO requirement as per the guidelines for R205(a), C11 in Subsection 5.30.” (In other words, such an owner would only need to satisfy an officer that their activities will bring “significant benefit” to Canada.)
     
    The above guidelines apply whether the camp is a children’s recreational facility or a hunting or fishing camp.”
     
  • The provisions of FW 1, section 13.4 are currently subject to the interpretation of R205(a), set out in section 5.30, which says that FNs who do not have a controlling interest in a business and are entering to work are required to apply for a work permit (WP) as an employee, supported by a neutral or positive Labour Market Opinion (LMO). Human Resources and Skills Development Canada has indicated, however, that Service Canada cannot issue an LMO in cases where there is no employer-employee relationship, i.e. a job offer or wages. Since many of the fishing/outfitting operations have multiple owners in which no single FN has 50% control, and an employer-employee relationship does not exist among the owners, this leaves some owners of fishing operations with no pathway by which to obtain a WP.

Additional Guidance

  • A key step for officers is to identify the essential elements of the outfitting/fishing operation: Ownership, share of ownership, other FNs and Canadians involved with the operation (i.e. guides, employees), the services provided by the operation, fees charged, Canadian goods and services being used, etc. It is also necessary to determine whether “work” is occurring by applying the criteria provided in FW 1, section 5.1.
  • FNs involved with outfitting operations in which no fees are charged do not require WPs and may be admitted as tourist visitors.
  • Business visitors–FN owners of outfitting operations with paying clientele may be admitted as business visitors (tour operators/guides) if they are accompanying the clientele from outside of Canada and if there is little in the way of services being provided to the clientele while in Canada. For example, the FN is not preparing meals, nor providing guiding services, but rather once they arrive at the destination the clientele is on their own unless they encounter problems.
  • Requirements for fishing, hunting and outfitters vary by province (e.g. there is a yearly license for commercial outfitters in Saskatchewan). In conducting their review of the outfitting/fishing operation, officers should request and review the relevant licenses or registration documents that the FN has obtained.
  • FNs working at outfitting operations in which fees are being charged and for which significant services are being provided in Canada should normally be required to obtain a WP supported by an LMO.
  • LMO-exemption (C11) and change to section 13.4
    • A FN owner of an outfitting operation in which fees are charged is eligible for an LMO-exempt WP if the business is able to satisfy the requirement of significant benefit to Canada.
    • Recognizing that many outfitting operations are owned jointly by individuals with equal shares of a fishing/hunting operation (e.g., 5 owners, each with 20% ownership), CIC is allowing the C11 exemption for each of these owners if the business is able to satisfy the requirement of significant benefit to Canada.
    • The spouses of FN owners whose application for an LMO-exempt WP are approved may also obtain such WPs, if they are otherwise admissible to Canada.
    • Other owners (e.g. owners with a lesser share) within this category would need to apply for a WP as an employee, and thus would require an LMO if they are conducting “work” as defined in FW 1, section 5.1.
  • Guides—section 13.5 “Fishing Guides” requires that FN fishing (or hunting) guides working for an outfitter in Canada obtain a WP, and if self-employed may be issued an LMO-exempt WP if able to demonstrate that the requirements of R205(a) are met by demonstrating that their activities attract tourism or benefit Canadian citizens or permanent residents (PRs).
    Note: In the province of Saskatchewan, a FN identifying themselves as a guide would not be able to claim “self employment,” as guides are required to be employed by an outfitter.
  • Given the unique nature of these outfitting operations, which are often not formally constituted companies and frequently are not active for much of the year, owners who have been repeatedly issued LMO-exempt WPs over several years are not obliged to meet the requirements for “long term self-employed applicants” indicated in FW 1 section 5.30.

For the assessment of FNs entering Canada where the officer assesses that the FN is involved to some degree with any fishing or hunting outfitting operation, or is working as an outfitter in the province and does not qualify as either a tourist or a business visitor, the chart below may assist decision-making:

Characteristics of FN seeking entry WP and LMO eligibility/requirements
Sole owner or majority owner
(and spouses)
Eligible for LMO-exempt WP under C11 if officer is satisfied that significant benefit* to Canada is substantiated.
Owner with equal share
(and spouses)
Eligible for LMO-exempt WP under C11 if officer is satisfied that significant benefit* to Canada is substantiated.
Other owner (i.e. is not a majority owner, nor an equal owner) Require LMO and WP as an employee if carrying out “work”.
For information regarding Service Canada LMOs, visit:
www.hrsdc.gc.ca/eng/workplaceskills/
foreign_workers/index.shtml
Non-owner (including guides)

* Significant benefit for these typically small, seasonal outfitting operations can be assessed based on the following:

  • Amount of income brought into and remaining in Canada (i.e. any amounts charged to foreign ‘guests’ or clientele that directly cover the costs associated with the trip);
  • Amount spent on goods and services in Canada or wages to Canadians/PRs; and

Note: given the seasonal and part-time nature of these operations, the threshold of significant benefit tends to be lower for these operations than an assessment of significant benefit for other exemptions under R205(a).

  • Assessment of general economic stimulus, i.e. development or job creation; and/or
  • Assessment of whether or not the outfitter is impinging on other Canadian service providers. For example, are other Canadian outfitters in the area losing business directly because of this outfitter’s operation? An officer could consult with the provincial tourism authority (or outfitting association, if applicable) for their opinion. An officer might also suggest that the outfitter obtain a letter from a local Chamber of Commerce attesting to their business’ economical benefit to the region, or advise them to obtain one for next entry.

Supporting documents may include income and expenditures, rental/lease agreements for the land and, for a newly formed partnership, a business plan and ownership documents.

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