Welcome Breanna Case

McCuaig Desrochers LLP is pleased to welcome Breanna Case as an articling student.

Breanna received her Juris Doctor from University of Alberta’s Faculty of Law in 2022. While in law school, she volunteered as Dayleader on the Family and Civil Law Project with Student Legal Services where she assisted low-income individuals with their legal matters in Provincial Court. She also served on the Women’s Law Forum and the Edmonton branch of the Women’s Legal Education and Action Fund (LEAF) where she assisted in various gender equity initiatives across the city. Breanna was the recipient of the 2022 Sheldon Chumir Memorial Essay Prize in Human Rights or Ethics in Government for her essay on gender-neutral legislative drafting.

Prior to law school, Breanna earned a Master of Arts in International Affairs from Carleton University’s Norman Paterson School of International Affairs and a Bachelor of Arts with First Class Honours in Law and Society from the University of Calgary. During these pursuits, she was involved in student government and leadership initiatives. She was employed as a governance and policy analyst in the healthcare sector for nearly two years before returning to school to obtain her law degree.

2022 Community Involvement

In 1995 (the 100th anniversary of our firm’s establishment), the partners of McCuaig Desrochers LLP  endowed a charitable fund through the Edmonton Community Foundation grant program. The partners of our firm have administered this charitable fund since that time, directing donations to different worthy organizations every year. This year, McCuaig Desrochers LLP has directed that its Edmonton Community Foundation fund proceeds be donated to the Diabetes Research Institute Foundation, which we feel is a very deserving organization doing very important medical research. We hope that this donation will assist in the development of effective treatments and therapies for all who suffer from diabetes.

Changes Ahead for Canada’s Express Entry Immigration Program

There are changes coming to Canada’s Express Entry program.

Express Entry has been a mainstay of Canada’s economic immigration system since its introduction in 2015, governing the intake of permanent residence applications under several of our economic immigration programs. Under the Express Entry system, individuals interested in applying for permanent residence under the Canadian Experience Class, or the Federal Skilled Worker and Federal Skilled Trades programs must first create an online profile that is automatically assessed a certain number of points according to the Comprehensive Ranking System – taking into account characteristics such as age, language ability, work experience, and education.  Rounds of invitation are held where the top ranked profiles receive invitations to apply for permanent residence. 

From its launch and until the beginning of the pandemic, the Express Entry systems was a remarkably steady process. Rounds of invitation usually occurred every two weeks and were typically “all-program” rounds of invitation – rounds of invitation that invited applications under all of the underlying economic streams.

Express Entry pivoted in response to the border closures and broader public health imperatives that accompanied the early phases of the COVID-19 pandemic. During this time, most travel into Canada was prohibited; as a result, rather than processing permanent residence applications for people who would have to travel into Canada from other countries, the government turned its attention within Canada as it looked to meet its annual levels plan for new permanent residents.

In March 2020, the government’s strategy for its Express Entry rounds of invitation shifted to respond to the pandemic and rounds of invitation targeted only those individuals who were eligible under the Canadian Experience Class and Provincial Nominee Programs as they were more likely to already be inside Canada. Individuals eligible under only the Federal Skilled Trades or Federal Skilled Worker Program (individuals who would more typically be outside of Canada) have not been included in any round of invitation since March 4, 2020.

Invitations to apply under the Canadian Experience Class have also been paused since September 2021, as the government reduced intake to ensure that their inventory of applications remained manageable.

Now that borders have reopened, and individuals are able to travel into Canada more freely, the government is looking to bring the Express Entry system back to the way that it functioned prior to the pandemic. The government has announced that starting in July 2022, they will resume conducting regular “all-program” rounds of invitation. This is good news for Canadian Experience Class Applicants who have been waiting since September 2021, and other applicants who have been waiting for more than two years to be able apply for permanent residence. Given the number and quality of profiles that have built up in the Express Entry pool, we believe that when the “all-program” rounds of invitation resume they will be extremely competitive for quite some time.

In addition to Express Entry’s imminent return to pre-pandemic functioning, two other significant changes are forthcoming. 

Firstly, Express Entry will be affected by the immigration department’s implementation of Canada’s new National Occupational Classification system.  The NOC system currently used by IRCC (NOC 2016) divides all occupations among five “skill levels”. For immigration purposes, occupations with skill levels “0”, “A” and “B” are currently considered “high-skilled jobs” while occupations with skill levels “C” and “D” are considered “low-skilled jobs”.

The new NOC system (NOC 2021) replaces the existing five skill level groupings with six TEER groupings (Training, Education, Experience and Responsibility).  With the immigration department’s transition to the new NOC system TEER 0 will be treated how Skill Type 0 is currently treated under our current immigration programs; similarly, TEER 1 will correspond with current Skill Level A, TEERs 2 and 3 will correspond with current Skill Level B, TEER 4 will correspond with current Skill Level C, and TEER 5 will correspond with current Skill Level D.

Currently, eligibility for Express Entry requires a certain amount of work experience that is categorized as Skill Level B or above. With the transition to NOC 2021, Express Entry will require work experience that is at or above TEER 3.

With the change to NOC 2021, it is expected that there will be sixteen occupations that will become eligible under Express Entry. For example, payroll administrators, dental assistants, nurse aides, pharmacy assistants, elementary/secondary school teacher assistants, transport truck drivers, and heavy equipment operators are on the list of occupations that could now meet the requirements to apply for permanent residence under Express Entry.

Three occupations that are currently eligible are expected to become ineligible for Express Entry under NOC 2021, these are: instructors in recreation, sport and fitness; other performers (e.g. models, influencers, DJs etc); and tailors, dressmakers, furriers and milliners.

Secondly, Express Entry is expected to be affected by legal amendments that have been introduced by the government in its omnibus Budget Implementation Act.  The legislative amendments will give the Minister of Immigration greater powers to issue more targeted Express Entry rounds of invitation. Currently, the Minister is only able to specify a specific program that the round of invitation will apply to (e.g. Federal Skilled Worker Program, Federal Skilled Trades Program, Canadian Experience Class, or the Provincial Nominee Class). If passed, the currently proposed legislated amendments will allow the Minister to specify criteria that an individual must possess to receive an invitation to apply, such as requiring a certain educational credential or a certain type of work experience. These new changes would allow the immigration department to more effectively target certain groups present in the Express Entry pool.

While these proposed legislative changes are meant to increase the department’s ability to be flexible and target new immigrants that can help meet certain economic goals, this increased flexibility comes at a cost to the predictability and fairness of the Express Entry system. Currently, the Express Entry system is quite objective; if an individual has enough points under the Comprehensive Ranking System and meets the minimum eligibility requirements of one of the underlying permanent residence streams, that individual can expect to receive an invitation to apply for permanent residence. By giving the Minister an increased discretion to pick and choose profiles out of the Express Entry pool, the certainty and objectivity of the program will be reduced and potentially subject to the whims of the immigration department. There is also a concern that the selection of targeted criteria will not be sufficiently transparent or be based upon sufficient consultation. It remains to be seen how often the targeted criteria will be used, and which stakeholders will be involved in their selection.

This article first appeared in the June 2022 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.

Modernization of Alberta’s Trustee Act

A new Alberta provincial Trustee Act was introduced as Bill 12 on March 29, 2022 and was passed by the legislature on April 29, 2022. Once proclaimed into force, the new Trustee Act (the New Act) will provide a modern framework for trust law in Alberta. Overall, the new Trustee Act clarifies the responsibilities and powers of trustees and will provide greater protections for beneficiaries. Additionally, the new provisions would reduce administrative burdens imposed by trust law, as it lessens the need for court involvement in the functioning of trusts. Here is an overview of the major changes proposed by the new legislation.

Lessening Administrative Burdens

The New Act makes changes which reduce the need for court applications. For example, the New Act stipulates that if a trustee is temporarily unable to administer the trust due to absence or incapacity, they may appoint an alternate temporary trustee to exercise their powers and perform their duties. If the trustee is unable to appoint this temporary trustee, then a designated person may do so. If this situation were to arise under the existing Trustee Act (the Old Act), a replacement trustee could only be appointed by court application.

Similarly, a court application is no longer required under the New Actto vary the terms of the trust. In the proposed legislation, the default rule is still that a variation requires approval from the court; however if the trust instrument reserves the power to any person to vary or terminate the trust, that person will have the power to do so.

Greater responsibilities and powers for Trustees

Under the proposed legislation, there are greater responsibilities for the trustees, and correspondingly, greater protections for beneficiaries. The New Act imposes a duty of care on trustees, a duty to report financial information to beneficiaries, a standard of care when investing, and a duty to act impartially and prudently between all beneficiaries and in the administration of the trust. To further address the needs of beneficiaries, the New Act provides a process to permit the removal of an unfit trustee and to allow a trustee to resign.

In addition to expanding a trustee’s responsibilities, trustees’ powers have also grown. Under the NewAct, trustees have enhanced administrative powers to buy and sell trust property, including the power to sell and lease real property. Further, a trustee is granted the power to borrow trust property or to grant a security interest in trust property. A further example of a trustee’s expanded power is that they may utilize trust income or capital to provide residence to a beneficiary.

Other notable changes

The Old Act mostly adresses testamentary trusts (trusts established by way of a will); however, the New Act also recognizes various other forms of modern trusts, including non-charitable purpose trusts.

The New Act abolishes some of the previous common law trust law rules. For example, section 37abolishes the rule that required overseeing a trustee’s decisions on an investment-by-investment basis, as well as the rule that damages for breach of trust are prohibited from being offset by gains. Furthermore, the New Act abolishes the common law rules of apportionment.

The new Trustee Act presents a complete overhaul of the existing legislation in Alberta. These changes will likely produce a more efficient trust law system, making it easier to create and manage trusts. If you have any questions about the New Act, or anything to do with trusts or estates, please feel free to contact one of our lawyers.

©2022 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.

This article was written by Monika Sharma and Olivia Wang.

New Canadian Immigration Streams for Ukrainians

As of February 24, 2022, Russia has launched a military attack against Ukraine and its people.  The Canadian government has implemented new measures to help the people of Ukraine affected by this attack.

The Canadian government has expressed a commitment to prioritizing applications from people living in Ukraine for Canadian permanent residence, proof of citizenship, temporary residence and citizenship grant for adoption. Additionally, they are attempting to urgently process passports and travel documents for Canadians living in Ukraine, to allow them and their families to return to Canada.

Information for individuals attempting to flee Ukraine to come to Canada

The fastest method for individuals fleeing Ukraine to come to Canada is through the Canada-Ukraine Authorization for Emergency Travel. This pathway will eliminate many of the normal visa requirements and there will be no limit to the number of Ukrainians who may apply. As of March 3, 2022, the Government of Canada stated that this pathway will be open for applications in 2 weeks, and in the interim, Ukrainians are encouraged to apply through all other programs and their applications will be prioritized.

In the interim, Ukrainians may apply for an urgent visitor visa to Canada, on a temporary basis, through the IRCC online portal. Note that this application may be difficult to complete as all visa application centres in Ukraine are currently closed. Please contact us directly if you have questions on how to fill out this visa applications amidst the current constraints.  If you cannot obtain valid biometrics or obtain a visa stamp for your passport, (both steps are required to complete the application), you are still encouraged to apply. The Canadian government may decide to make exemptions for these requirements, but it has not yet been confirmed.

The Canadian government has implemented a few amendments to immigration procedures to help facilitate the process of leaving Ukraine for Canada. For example, the Minister of Immigration, Refugees and Citizenship has issued a class-based national interest exemption, allowing those who are unvaccinated or partially vaccinated for COVID-19 to enter Canada from Ukraine. These individuals will be subject to all other public health requirements. Additionally, the Canadian government has announced that they will waive fees, retroactive to February 22, 2022, for certain travel and immigration documents.

The Canadian government is also in the process of developing a special family reunification sponsorship pathway for permanent residence. This will be available for immediate and extended family members of Canadian citizens and permanent residents currently residing in Ukraine, who want to make a permanent move to Canada. Details of this program are yet to be announced.

For Ukranian foreign nationals currently residing in Canada

The Government of Canada is trying to ensure that Ukrainians who are currently working, studying and living in Canada, can remain here. The IRCC will issue open work permits for Ukrainian visitors, workers and students who are currently in Canada and cannot go home safely.

The Canadian Border Services Agency has an administrative deferral of removals in place for Ukraine. This means that a removal order, which would normally require a person to leave Canada immediately, is not currently being enforced. This may not apply in all scenarios, if you have a removal order for Ukraine, you should get legal advice as to its immediate effect.

More information

If you would like to get more information on this topic, the IRCC has established a service line specifically dedicated to immigration inquiries for individuals living in Ukraine and Ukrainians living in Canada, at 613-321-4243. Individuals can also use the IRCC crisis web form with the keyword “Ukraine2022”, and their inquiry will be prioritized.

This article was written by Monika Sharma, Student-At-Law, articling at McCuaig Desrochers LLP

©2022 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.