The Canadian entertainment industry is an important sector of the Canadian economy. The success of this industry within Canada can be attributed to Canada’s multicultural population and diverse landscapes, which combine to make Canada the ideal setting for a wide variety of different film and television projects.
Although there are many talented Canadians working in this field, the importance of the participation of foreign nationals is undeniable. It is therefore essential for the success of this industry that there be a facilitated process available to these foreign nationals that allows them to work legally in Canada in the easiest and most expeditious manner possible. To burden them with paperwork and subject them to the lengthy processing times usually associated with acquiring a Canadian work permit would not be in the best interests of Canada’s economy, as it could deter producers from considering Canada as a viable option for their entertainment project.
Fortunately, the government of Canada is aware of this risk and has consequently provided several avenues through which foreign nationals who want to work in the Canadian entertainment industry can do so.
Normally, in order for a foreign worker to be granted a work permit, the employer (either a Canadian employer or a foreign employer operating within Canada) must first apply for a Labour Market Impact Assessment (LMIA). In order for this to be approved, the employer must demonstrate that attempts were made to hire a Canadian for the position. This involves advertising in specific sources for a certain period of time, as well as completing a recruitment report documenting why none of the applicants were suitable for the position.
In terms of logistical issues, adhering to this requirement would entail delays that are inconsistent with many production schedules, in particular with regard to unexpected labour needs. Assuming there are no unforeseen delays, a LMIA can take three to four months to procure. This lengthy process is not conducive to responding to the timeframe that most shooting schedules allow, and could result in production delays. Because monetary losses usually result from such delays, the need to comply with the LMIA requirement can end up being costly for production companies that find themselves in need of crew members.
A second problem pertains to the very nature of the entertainment industry and the nature of entertainment in general. Individuals working on a project are usually hired on the basis of their having unique skills or attributes that are required for that particular project. As a result, it is very often the case that only these specific individuals, because of who they are, are able to do the job for which they were hired.
The necessity of attempting to hire a Canadian for a position that a producer knows beforehand can only be filled by a particular non-Canadian defies basic logic and can be vexing for production companies. The most blatant illustration of such a scenario is an actor who is sought for a role largely because of his physical characteristics, style, or reputation. For example, if a role in a Hollywood film shooting in Canada was intended for George Clooney, it would not make sense for the production company to post ads for a Canadian George Clooney. Very often, the success, and sometimes even the feasibility, of certain projects is dependent on the participation of a particular individual.
These are the main problematic issues the regular LMIA process poses for Canadians working in the entertainment industry looking to hire foreign nationals. With that being said, there are essentially three routes through which hiring may be done while avoiding the aforementioned issues.
In certain cases, individuals seeking entry to Canada to work in the entertainment industry can qualify as business visitors. This refers to a category of foreign nationals intending to work in Canada who do not require a work permit. Because the LMIA is only necessary as a prerequisite for the work permit application, these foreign nationals are therefore exempt from the LMIA requirement. In order to receive consideration as business visitors, non-Canadians hoping to work in the entertainment industry must fall into one of two categories:
1) Film producers employed by foreign companies for commercial shoots; and
2) Essential personnel entering Canada for short durations (typically no longer than two weeks) for a foreign-financed commercial shoot.
To qualify under the first category, proof must be provided that the individual is actually a film producer and that the production in question can indeed be considered a “commercial shoot”. To confirm an individual’s occupation as a film producer, a resume or CV supporting this designation will usually suffice. With regard to the nature of the production, if the purpose of the shoot is to advertise a certain product or promote a particular service, it will most likely be considered a commercial shoot.
Consideration under the second category is more subjective because no exhaustive list of “essential personnel” is provided and its definition is therefore open to interpretation. This allows for some flexibility with regard to determining eligibility for consideration as a business visitor in this context. Because which personnel may be considered essential can vary from one situation to another, this determination is made on a case-by-case basis and depends largely upon what evidence is provided in support of the worker being “essential” to the production. Therefore, a simple occupation title is by no means conclusive with regard to whether the worker in question constitutes “essential personnel”. It is but one of the factors taken into account when assessing if a person can be considered a business visitor. This provides an opportunity to furnish explanations attesting to the importance of a particular worker who, at first glance, might not seem “essential” to a production. Different types of production vary widely and, as a result, the importance of different personnel varies as well. This category of business visitor allows for this variation and is taken into consideration when assessing who qualifies as such.
There is another facilitated route to working legally in Canada that is available to those who are in the entertainment industry but do not qualify as business visitors. Such individuals could be eligible for a LMIA-exempt work permit. As previously mentioned, the need to get a positive LMIA is typically the most problematic aspect of a work permit application, so being exempt from this requirement make the process much easier and increases the likelihood of the work permit being granted in the shortest possible timeframe. Eligibility for this option also hinges on the notion of an individual’s position or occupation being essential to the production, as was the case for the second category of business visitor mentioned above. The difference pertains to the kinds of productions to which these options apply. While the business visitor option applies only to commercial shoots, there is no such restriction as it concerns qualifying for a LMIA-exempt work permit. Therefore, this exceptional LMIA-exempt work permit application process is potentially available to all individuals working on any TV or film production within Canada.
Although greatly facilitated, this option involves submitting an application and, as a result, there are fees that apply and steps that must be followed.
Firstly, the employer has to enter information about the employment offer in what is known as the Employer Portal. This entails relaying certain details concerning the proposed job, including the occupation title, description of duties, remuneration and duration of employment. In order to gain access to the portal, the employer must pay a $230 compliance fee to the government.
Once this has been accomplished, the foreign national must submit a work permit application, which entails a $155 government processing fee. If the foreign national is a U.S. citizen, or a citizen of any visa-exempt country, he or she can apply for the work permit directly at the border when crossing into Canada. Otherwise, the application must be submitted to the appropriate visa application office and processing times apply.
A slight complicating factor arises with respect to this option as it concerns the Canadian unions within the entertainment industry. Because this option eliminates the need for a LMIA, employers in the entertainment sector are essentially exempt from requesting permission from the government of Canada to hire a foreign national over a Canadian. However, they are not exempt from this requirement as it concerns the unions that protect the rights of Canadian workers in the entertainment industry. Because of this, it is often required that the employer procure what is called a “letter of no objection” from the relevant union. This letter essentially gives the employer permission to hire a foreign national. If it is abundantly clear that there are many qualified Canadians who are able and willing to do the job in question, this letter can be difficult to obtain. For the most part, this is not the case.
LMIA work permit
If none of the above options can apply, there is no alternative to applying for a LMIA-supported work permit. However, even this option is facilitated for those individuals working in the entertainment industry. This is because they are exempt from the advertising requirements that a LMIA usually entails, thus eliminating what is typically the most problematic aspect of the LMIA application. In such a case, the most onerous requirement associated with the LMIA is the need for the employer to pay the $1000 processing fee.
The union issue is a factor with regard to this option as well. Even though a LMIA is required, because no advertising is necessary, the employer does not have to demonstrate any attempt on his part to recruit Canadian labour. Therefore, since none of the qualified Canadians were given the opportunity to apply for the position, the unions’ approval is required.
“There is a reason why the saying goes ‘lights, camera, action!’ rather than lights, camera . . . hold on for four months. Fortunately, the entertainment industry has been granted a range of exceptions and variations on the typical requirements,” says Attorney Daniel Levy of the Campbell Cohen Law Firm.
“Clearly, the first objective once a worker or workers have been identified is to find out whether one of the LMIA-exempt categories is available for the particular project. If so, moving quickly is key. If not, it’s about getting everything in order in advance of the project so that production schedules can be adhered to.
“People hiring in the entertainment industry should not take Canadian work laws and entrance requirements lightly. Projects get delayed, shelved, or even cancelled on a regular basis because hiring personnel have not performed due diligence on the latest requirements as they pertain to their projects.”
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