A Federal Court Stay of Removal pauses deportation, but it does NOT automatically grant the individual the legal right to work. A Canadian company can only legally employ the worker if they possess a valid Open Work Permit (OWP) or maintained status recognized by IRCC.
Navigating the intersection of corporate human resources and Canadian immigration law can be daunting. When an employer in Edmonton, Winnipeg, or Ottawa discovers that a potential or current employee is facing deportation but has secured a “Stay of Removal” from the Federal Court, confusion immediately sets in. Does this court order mean they are fully authorized to work in Canada?
Under the Immigration and Refugee Protection Act (IRPA), it is a strict federal offence to employ a foreign national who is not authorized to work. 📝 A Federal Court Stay simply prevents the Canada Border Services Agency (CBSA) from physically deporting the individual while a judge reviews their underlying legal case (such as a Judicial Review of a failed refugee claim or an H&C application). For a business to remain compliant, HR managers must look past the court order and verify the worker’s specific Immigration, Refugees and Citizenship Canada (IRCC) documentation.
Step-by-Step Guide for HR: Verifying Employment Eligibility
To protect your company from severe IRPA penalties, you must establish a clear audit trail proving the individual is legally allowed to be on your payroll.
Step 1: Understanding the Limits of the Federal Court Stay
The first step is educating your HR team. A court order staying a removal is a protective measure, not an employment authorization. 💰 While the individual is safe from immediate deportation in Toronto or Calgary, their ability to work depends entirely on whether they applied for and received an extension of their work permit before their previous status expired, or if they qualify for an exemption.
Step 2: Checking for Maintained Status (Implied Status)
If the worker had a valid work permit and applied to renew it before it expired, they benefit from “maintained status” while IRCC processes the new application. Even if they are fighting a removal order in court, maintained status allows them to legally continue working for your company under the exact same conditions as their original permit until IRCC makes a final decision.
Step 3: Verifying the Open Work Permit (OWP)
Many individuals fighting deportation apply for Humanitarian and Compassionate (H&C) considerations or are tied to an ongoing refugee appeal. 💼 In many of these cases, IRCC issues an Open Work Permit. You must ask the employee to produce the physical document. Verify the expiration date, ensure it says “Open Work Permit” (meaning they can work for any employer), and check the bottom remarks for any specific occupational restrictions (e.g., “Not authorized to work in healthcare”).
Step 4: Securing the SIN and Documenting the File
A worker fighting removal will often have a Social Insurance Number (SIN) that begins with a “9”, indicating temporary status. You must ensure the expiration date on the SIN matches the work permit. Make high-quality color copies of the Federal Court Stay, the valid Work Permit, and the SIN card. Place these in the employee’s HR file. If CBSA ever audits your company, this documentation is your legal defence.
What Does Non-Compliance Cost the Employer?
Hiring an unauthorized worker, even accidentally, triggers massive liabilities for a Canadian corporation. 💵
- IRPA Fines: The federal government can issue administrative monetary penalties (AMPs) ranging from $500 to $100,000 CAD per violation, depending on the severity and size of the business.
- Criminal Charges: In extreme cases of knowing exploitation, corporate directors can face criminal charges, up to 2 years in prison, and fines of up to $50,000 CAD.
- Loss of TFWP Access: Your company can be permanently banned from using the Temporary Foreign Worker Program and your corporate name published on the public IRCC “blacklist”.
- Legal Consultations: Hiring a corporate immigration lawyer to audit your foreign worker files generally costs $400 to $900 CAD per hour.
How Long Does a Federal Court Stay Last?
A Stay of Removal is a temporary bridge. ⏳ Generally, it lasts until the Federal Court makes a final decision on the underlying Judicial Review application, which usually takes 6 to 12 months in Canada. If the worker wins their court case, they can continue pursuing their permanent residency and renewing their work permits. If they lose the court case, the stay is immediately lifted, the removal order becomes active again, and their work permit may be rendered invalid, requiring immediate termination of employment.
| Immigration Document | Does it Authorize Work in Canada? | Employer Action Required |
|---|---|---|
| Federal Court Stay of Removal | No. It only pauses physical deportation. | Acknowledge the document, but ask for an actual Work Permit. |
| Open Work Permit (OWP) | Yes. Valid for any employer (with minor exceptions). | Copy the permit, verify the expiry date, and update the payroll system. |
| Proof of Maintained Status | Yes, if the previous permit allowed work. | Keep the expired permit and the IRCC submission receipt on file. |
Frequently Asked Questions (FAQ)
Do we need to pay the $230 Employer Compliance Fee for this worker?
Generally, no. If the worker holds an Open Work Permit (OWP) due to an H&C application or refugee claim, they are exempt from the LMIA process, and your company does not need to pay the $230 employer compliance fee or submit an offer through the IRCC Employer Portal.
What happens if their work permit expires while the court stay is still active?
The employee must apply to IRCC to renew the work permit before it expires to maintain their status. If they fail to apply before the expiry date, they lose their authorization to work, and you must suspend or terminate them immediately, regardless of the active court stay.
Can CBSA raid our workplace to arrest them?
If the individual has a valid Federal Court Stay of Removal, CBSA is legally barred from arresting them for the purpose of deportation. However, if the stay is lifted or denied, CBSA Inland Enforcement does have the authority to arrest individuals at their place of employment.
Can we hire them as an independent contractor instead to avoid liability?
No. Misclassifying an employee as an independent contractor to bypass IRPA work authorization rules is a serious offence. If they do not have the legal right to work in Canada, they cannot work for you in any capacity.
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