ARCHIVED – Operational Bulletin 562 – December 20, 2013

Definition: foreign crew working on a foreign-owned, foreign-registered aircraft, engaged primarily in international transportation (i.e., flying directly from Canada to a point abroad or vice versa, with no other stops in Canada).

Authority: R186(s) of IRPR, Division 3 of Part 9; FW 1 Manual reference: Section 5.20.

Definition: work that “would create or maintain reciprocal employment of Canadian Citizens or PRs of Canada in other countries.”

Authority: R205(b) of IRPR, Division 3 of Part 11; FW 1 Manual reference: Section 5.33.

Policy: Transport Canada’s wet lease policy can be found on the department’s website.

Definition: “A wet lease is a leasing agreement whereby one airline (lessor) provides an aircraft, complete crew, maintenance and insurance (ACMI) to an airline (the lessee), which pays by hours operated. The lessee, i.e., the Canadian airline, provides fuel, covers airport fees, duties, taxes and various other expenses. The aircraft(s) uses the flight number of the lessee. The aircraft is registered overseas and not in Canada. A wet lease is typically utilized during peak traffic seasons or annual heavy maintenance checks, or to initiate new routes.

Wet lease arrangements are essentially charter flights by the lessor, i.e., the foreign airline, for a Canadian air carrier – so a foreign carrier wet leasing aircraft to a Canadian is providing an international non-scheduled service and the flight crew remain its employees – the provisions of Annex 9 Facilitation (Chicago Convention), would apply.

For more information on wet leases and flight crews, consult the Canadian Transportation Agency website.

• Allows foreign workers to take up employment in Canada when Canadians have similar reciprocal opportunities abroad.
• Entry under reciprocal provisions should result in a neutral labour market impact.
• Canadians who go abroad to work under a reciprocal arrangement are typically working under the employment of the foreign company. Likewise, a foreign national in the exchange to Canada under that reciprocal arrangement, will be working for the Canadian company.
• A crew entering Canada under R205(b) reciprocity provisions may work anywhere in Canada (whereas crew on a wet lease are restricted to international travel on the wet lease only).

Employer should be the foreign airline.

Applications/requests for the work permit exemption for ‘crew’ should include:

• The wet lease agreement, containing:
  • Name of the lessee (Canadian airline);
  • Date and signatures; validity period of agreement/lease;
  • Occupation NOC;
  • Season/year (i.e., 2013/2014);
  • number of aircraft involved in the agreement and their registration numbers/IDs; and
  • Indication that all flights are international only.
• Evidence that the means of transportation are foreign-owned and not registered in Canada;
• Evidence that the flights in which the crew are involved travel directly between Canada and abroad, with no stops in Canada;
• Confirmation of wet-lease approval with Canadian Transportation Agency; CTA assesses the wet lease applications and will only approve as long as the number of wet leases does not exceed 20% of the Canadian airlines’ fleet (including dry leases). An officer can verify wet leases at the following CTA link: http://www.otc-cta.gc.ca/eng/search/apachesolr_rulings/%22wet%20lease%22
• Evidence that the foreign national continues to be employed by the foreign airline; and
• List of foreign pilots/first officers’ names, date of birth and nationality, and a detailed flight schedule indicating dates, times, destinations, aircraft ID.

Training: R186(s) does not provide authority for foreign nationals to enter Canada for training purposes.

Employer should be the Canadian company.

The onus is on the applicant (and employer) to prove that reciprocity exists. Depending on the number of exchanges involved, the processing officer may need to see the reciprocity agreement.

• A reciprocity agreement should be valid (i.e., signed and dated) and must clearly indicate the number of expected exchanges between the two companies per year or season.

Note: If an agreement is presented that indicates that the foreign nationals remain employees of the foreign company during their engagement in Canada then this is likely an arrangement associated with a wet lease and, as mentioned above, exchanges via wet leases cannot be included in the assessment of reciprocal employment.

• It is not necessary that there be exact reciprocity, but the general order of magnitude should be reasonably similar. For example, for exchanges exceeding over 25 individuals (as a guideline), Citizenship and Immigration Canada  should require a minimum proportion of 75% in terms of Canadians employed abroad via reciprocity to foreign nationals employed in Canada via reciprocity.

Exchanges via wet leases cannot be included in the assessment of reciprocal employment (they fall under two separate provisions under IRPR)

Example: Canadian airline ‘ABC’ has a reciprocal agreement with European airline ‘XYZ’ to employ each other’s airline pilots during each other’s busy seasons.  In the summer of 2012, XYZ employed 10 of ABC’s pilots via the reciprocal agreement; in addition, XYZ wet leased 2 of ABC’s aircraft and crew, and ABC sent 20 Canadian pilots to work in Europe on wet leased planes. For the busy winter season in Canada, under the reciprocal employment provisions, ABC is entitled to the LMO exemption for no more than 17 or 18 of XYZ’s pilots.

It would be helpful for monitoring and reporting purposes if the following information can be captured in the system:

• Number of Canadians listed as having worked for the foreign company the past season abroad;
• Number of foreign nationals that the Canadian company is employing this year/season; and
• The proof that was presented to support the existence of reciprocity.

Note: If reasonable reciprocity cannot be proven, then LMOs must be sought.