Congratulations Nathan Po and Pierre Desrochers, c.r.

McCuaig Desrochers LLP is proud to announce that one of our partners, Nathan Po, was recently included in the 2024 edition of The Best Lawyers in Canada for Immigration Law.

Also, our partner, Pierre Desrochers, c.r., was selected by his peers to be included in the 2024 edition of The Best Lawyers in Canada in the fields of Commercial Leasing Law, Corporate Law, and Real Estate Law.

Happy Holidays!

The lawyers and staff at McCuaig Desrochers LLP are taking a well-deserved break during the holidays.

Our office will be closed as of 4:30 pm on Friday, December 22nd, 2023 and will reopen 8:30 am on Tuesday, January 2nd, 2024.

Welcome to McCuaig Desrochers LLP!

The Partners of McCuaig Desrochers LLP are excited to welcome our newest associates, Megan Franklin and Paul Smith. Megan has joined our team of litigators and has a passion for family law. Paul has joined our team of solicitors and is ready to help you to continue building your business plans.

The Partners are also pleased to welcome our latest articling students, Hadeel Othman and Klarissa Rivero, and look forward to helping them continue a long career within the legal industry.

Congratulations Doug Lynass KC

McCuaig Desrochers LLP would like to congratulate our long-time friend and colleague, Doug Lynass KC, on his well-deserved retirement.  Doug has been an active and highly-regarded member of the Edmonton legal community since 1976. During his distinguished legal career, Doug worked most recognizably at Lynass, Ferguson & Schoctor / Alberta Business Lawyers. We are honoured that Doug has placed his trust in McCuaig Desrochers LLP to assume the representation of many of his longstanding clients. His trusted assistant, Colleen Nichol, will be joining the McCuaig Desrochers LLP team in October, 2023, to ensure a smooth transition and continuity of service. We look forward to working with Colleen and with Doug’s valued clients for many years to come.

Canada launches Recognized Employer Pilot for Employers of Temporary Foreign Workers

The Government of Canada announced the introduction of the Recognized Employer Pilot (REP) on August 8, 2023.  It was the first major policy announcement made by Edmonton Centre MP, Randy Boissonnault, in his new role as Minister of Employment, Workforce Development and Official Languages.

The Recognized Employer Pilot is designed to reduce the red-tape and administrative burden associated with hiring temporary foreign workers and will apply to a subset of those employers who have demonstrated a good track-record of compliance with the requirements of the Temporary Foreign Worker Program.

A Labour Market Impact Assessment is often required for an employer to be authorized to hire a worker from abroad. While exemptions to the LMIA requirement exist, when there is not a specific exemption that is applicable, an LMIA must be obtained by the Canadian employer prior to the worker being able to apply for a work permit.

An LMIA approval signifies that the government is satisfied that the opportunity is genuine and that the employment of a foreign national would not have a negative impact on the Canadian job market (usually because there are no Canadians or permanent residents available to fill the position).

While obtaining an LMIA approval is a critical first step for an employer who is looking to fill a vacancy with a foreign worker, the LMIA application process is complicated and can be difficult for employers to navigate. In addition, processing times for LMIAs are unpredictable and can be lengthy – making it difficult for employers to plan for their future workforce needs.

The Recognized Employer Pilot is intended to reduce the administrative burden currently involved in the LMIA process. In order to qualify for the pilot an employer must have received at least 3 positive LMIA decisions in the last 5 years for positions on the REP occupations list, must have met the highest standards for working conditions, living conditions and worker protection through their history with the Temporary Foreign Worker Program, and must commit to adhering to the TFWP’s requirements (including agreeing to participate in random REP check-ins, undertaking regular wage review to ensure foreign workers are receiving an up to date prevailing wage for their occupation and location, continuing to make reasonable efforts once per year to hire Canadians or permanent residents, and completing annual housing inspection reports of any employer-provided accommodations).

While the existing LMIA assessment requirements will not change (including recruitment requirements and the requirement to pay temporary foreign workers the regional prevailing wage for the applicable occupation), employers who qualify for the Recognized Employer Pilot can expect a simplified LMIA application process with fewer touchpoints with ESDC officers.

Under the REP, employers will also benefit from longer validity periods for their LMIAs, for example high-wage LMIA’s will have a duration of 36 months (up from 18 months) allowing them to use the LMIAs to bring in foreign workers for a longer period of time and reducing the number of applications required.

Finally, REP employers will receive a special designation on their postings on the Government of Canada Job Bank, showing that they have recognized status as a means to improve interest from potential workers.

The REP only applies to a limited number of occupations and is being rolled out in two phases. The REP occupations list is based on occupations that are designated as “in-shortage” under the Canadian Occupational Project System.

Phase 1 relates to agricultural occupations and intake of REP applications from agricultural employers began this week.  The Phase 1 occupations list contains the following occupations deemed to be in-demand and to have an insufficient domestic labour supply: livestock labourers, harvesting labourers, specialized livestock workers and famer machinery operator, and nursery and greenhouse labourers.

Phase 2 will start on January 1, 2024. The Phase 2 occupations list contains an additional 84 occupations covering a wide range of sectors, including certain trades (e.g. carpenters, cabinetmakers, welders), many healthcare occupations, the restaurant industry (food service supervisors, chefs, cooks, servers, food counter attendants etc.) and more.

For eligible employers, applications to be recognized by REP will be made as part of a standard LMIA application. Applications for recognition of the REP is scheduled to close on September 16, 2024.

Since REP will only be available to employers who have made multiple LMIA applications for occupations on the REP occupation lists, only a small subset of responsible, fully-compliant employers will be eligible.  As a result, it is important that an employer’s ineligibility for REP should not be seen as indication that they have somehow fallen short of their obligations to their foreign workers.

This article first appeared in the September 2023 edition of the Millwoods Mosaic – the Multicultural Voice of Southeast Edmonton (www.mwmosaic.ca) and is intended to provide general information only and should not to be relied on as legal advice or opinion.  We invite you to contact one of the members of our experienced immigration group for assistance.

EXTENDED: Agri-Food Immigration Pilot Program for Permanent Residence

Since 2020, foreign workers in the Agri-Food industry were able to apply for permanent residence under a (then) new pilot program which was set to end May 2023. Today, the Government of Canada has extended this pilot program to run until May 14, 2025. The Government of Canada has also indicated that they will revise the program to:

  • Remove the annual occupational caps, or the limits for how many candidates can apply for a specific occupation under the pilot. Instead there is an overall annual cap of 2750 applicants for the program (regardless of individual occupations of applicants). The applications are processed on a first come, first served basis until the cap is reached, starting January 1 of each year.
  • expand open work permit access to family members of all participants in the Agri-Food Pilot—regardless of the participant’s job skill level.
  • allow unions to attest to a candidate’s work experience, as an alternative to employer reference letters.
  • give applicants residing in Canada more options to meet the eligibility requirements
  • accept work experience gained under an open work permit for vulnerable workers (otherwise, work experience gained under an open work permit does not count for eligibility in this program).

The majority of the current eligibility criteria and industries and occupations are able to benefit from this program does not appear to be changing.

Currently, an individual who wishes to apply for Canadian permanent residence through the Agri-Food Immigration Pilot needs to be admissible to Canada and must meet the following criteria:

  1. have eligible Canadian work experience;
  2. have a qualifying job offer from a Canadian employer in one of the eligible industries and occupations for the pilot;
  3. meet the minimum language requirements (CLB/NCLC Level 4);
  4. meet the minimum educational requirements (Canadian school diploma or equivalent foreign credential); and
  5. have enough money to settle in Canada and to support your family (subject to certain exceptions).

Eligible Canadian work experience is at least one year of non-seasonal full-time (1,560 hours) work in the last three years in an eligible occupation for the pilot. Further, this eligible work experience must have been completed under the Temporary Foreign Worker Program – this means that your employer must have obtained a Labour Market Impact Assessment (LMIA) for a minimum of 12 months when they hired you for the position.

Eligible industries and eligible occupations for this Agri-Food Immigration Pilot are:

  1. Meat product manufacturing (NAICS 3116)
  2. Greenhouse, nursery and floriculture production, including mushroom production (NAICS 1114)
  3. Animal production, excluding aquaculture (NAICS 1121, 1122, 1123, 1124 or 1129)

If you are a temporary foreign worker that works in one of the above listed eligible occupations; Or an employer under one of the eligible occupations with temporary foreign workers that may wish to apply for permanent residence, you may contact us to discuss further and determine admissibility and eligibility under this pilot.

Céline Bégin is a partner at McCuaig Desrochers LLP, a general practice law firm with Edmonton’s largest group of immigration lawyers (www.mccuaig.com).

©2023 McCuaig Desrochers LLP. All rights reserved. The content of this newsletter is intended to provide general information on McCuaig Desrochers LLP, our lawyers, and recent developments in the law and is not to be relied on as legal advice or opinion.

Congratulations Nathan Po!

McCuaig Desrochers LLP is excited to announce that Nathan Po, one of our partners, has been recognized twice, in both the 2023 Lexpert Legal Directory as a leading practitioner in immigration law, and in the 2023 edition of the Best Lawyers in Canada in the field of immigration law.

Best Lawyers™ compiles its lists of outstanding lawyers by conducting thousands of peer reviewed surveys. Since it was first published in 1983, Best Lawyers has become universally regarded as the one of the foremost guides to legal excellence.

Similarly, the Canadian Lexpert Directory is based on a comprehensive annual survey completed by other lawyers. Lawyers listed in the Lexpert Directory are acknowledged as leaders in their respective fields, lawyers prominent in their practice areas and professional organizations, and lawyers otherwise enjoying significant recognition from their colleagues. 

We are proud of Nathan’s accomplishments and these dual recognitions, and we value our Firm’s expertise and experience in providing quality immigration law services to our clients.

False Statements in a Proof of Loss: Important Insurance Decisions

Case Review: Abbas v Esurance Insurance Company of Canada, 2023 ABCA 36

An important Court of Appeal of Alberta insurance law decision came out on February 6, 2023: how do we know it is important? Because the first line of the reasons for judgment reserved says so:

[1] This is an important insurance case. It declares that the common-law-fraudulent-claims rule – an insurer is relieved of the obligation to indemnify an insured for any loss arising from the same event and under the same insurance policy if the insured files a fraudulent proof of loss that is material with respect to one or more parts of the claim whether or not some part of the proof of loss is not tainted by fraud – is still good law in Alberta. This severe rule has existed for roughly 200 years. And the rationale for the fraudulent claims rule has remained constant.

Mr. Abbas was injured as a passenger in an automobile operated by an uninsured driver. However, Mr. Abbas’ own insurance policy with Esurance had standard Section B coverage (benefits available to an insured who has suffered injuries in any car accident) as well as what is known as “SEF No. 44 coverage” which requires the injured party’s insurer to make up for the uninsured driver’s lack of coverage.

However, Mr. Abbas lied in his proof of claim form for Section B benefits about his employment, and later admitted it. As a result, Esurance denied his claim for benefits, and his SEF 44 claim as well. The insured sued the insurer for SEF No. 44 benefits. On the insurer’s application to dismiss Mr. Abbas claim, Master Summers denied it, saying it would be “patently unfair” to the insured to deprive him of SEF 44 benefits when the subject matter of the fraud was entirely unrelated to the eligibility criteria for SEF 44 benefits. On appeal, Justice Johnston granted the insurer summary judgment. The Court of Appeal sided with the insurer, upholding the dismissal and thereby denying Mr. Abbas any coverage.

The relevant section 554 in the Insurance Act reads “If… the insured contravenes a term of the contract or commits a fraud, or… willfully makes a false statement in respect of a claim under the contracta claim by the insured is invalid and the right of the insured to recover indemnity is forfeited [underline added]”. The question was whether the lie by the insured in his Section B benefits claim (re his employment status) is not material for the purpose of his entitlement to SEF 44 benefits, which have nothing to do with his employment status. Is the claim for SEF 44 benefits “a claim” under s. 554, because the Section B claim and the SEF 44 claim arise out of the same accident, and the same insurance contract? The Court of Appeal says yes: “An insured who files a fraudulent proof of loss under that circumstance is not entitled to a single dime from the insurer.

To demonstrate that the Court “has imposed harsh consequences on an insured [for] fraud” before, “even if the insured’s fraud did not prejudice the insurer directly”, it referenced a 1977 Alberta appeal decision, Swan Hills Emporium & Lumber Co. v. Royal General Insurance Co. of Canada, where a fire loss claim was denied where the insured falsely listed three televisions as fire losses when they were not, even though the coverage was for up to $30,000, and it was clear that the actual loss exceeded that amount. Quoting Chief Justice McGillivray’s decision in Swan Hills:

The court will not undertake for him the offensive task of separating his true from his false assertions. Fraud, in any part of his formal statement of his loss taints the whole. Thus corrupted, it should be wholly rejected, and the suitor left to repent that he destroyed his actual claim by the poison of his false claim.

Although in Swan Hills the false statement was “material” (it related directly to the insured’s claim), as have been the cases that have followed Swan Hills, the Court of Appeal has in Abbas now confirmed that the same principles requiring good faith and honesty on the part pf insured’s applied even where the wilfully  fraudulent statements are not material to the specific claim being denied (here, the SEF 44 claim). Also noted was that other provisions of the Insurance Act, such as in relation to an application for life insurance, does incorporate the materiality concept, suggesting that its absence from s. 554 is telling.

However, not all false statements in a proof of claim will vitiate coverage, there is still a common law principle of materiality that flows from the requirement that the false statement be “in respect of a claim under the contract”. The Court provides this comment and pithy example:

[91] This does not mean that any false statement an insured makes in support of a claim will deprive the insured of the benefit of insurance coverage. Suppose an insured files a proof of loss claiming that a thief broke into his Cadillac Escalade while the insured was having dinner with his wife and stole his golf clubs and his computer. He was not having dinner with his wife – he was having dinner with his mistress. Not only must an insurer prove on a balance of probabilities that the insured knew the information the insured provided the insurer was false or was reckless, it must also prove that it was material to one of the claims.[98] It must be more than a “collateral lie” designed to bolster an otherwise valid claim that, while false, has no impact on the claim.

Ultimately, this decision should be an important message to all insured persons, when any accident or loss arises, and they must prepare and submit a proof of loss. It is important to be as honest and thorough as possible in submitting that claim and in all dealings with the insurer in relation to the claims, knowing that where there are multiple claims or losses, being untruthful on one aspect may then result in all claims being denied.

If you have questions or concerns about your rights, obligations, or other duties under and insurance contract, please contact McCuaig Desrochers LLP’s Personal Injury or Insurance Law Practice Groups for guidance and assistance.

This article was written by Frank PK Friesacher, KC

©2023 McCuaig Desrochers LLP. All rights reserved. The content of this newsletter is intended to provide general information on McCuaig Desrochers LLP, our lawyers, and recent developments in the law and is not to be relied on as legal advice or opinion.