DISCLAIMER:
The following has been prepared by Colin R. Singer, Attorney At Law, for the intended reference by interested individuals and is not intended to create an attorney-client communication. This writing may be reproduced for the personal non commercial use of interested individuals on the express or implied condition that the contents herein are neither edited, modified nor altered in whole or in part, directly or indirectly without the express written consent of the author herein.
(Canadian Immigration and Employment Law)

Since the inception of the Entrepreneur category in 1976, numerous legislative changes have been introduced by Parliament in an effort to further promote the objective of Canadian Immigration Policy and in particular, the Business Immigration Program in accordance with section 3(h) of the Act.

In 1978, the notion of conditional admissions for entrepreneurs was first established. As there were no specific immigration procedures in place to document an entrepreneur's compliance, terms and conditions were established by the Commission in an effort to ensure that the conditions of landing were met and to enable the Commission to monitor the success of its Business Program.

In early 1993, Bill C-86 produced substantial modifications to the process of imposing and removing terms and conditions under the Entrepreneur Class. Practitioners are now experiencing that these statutory changes have had a profound effect on all parties involved including the entrepreneur and dependents, visa officers, inland immigration officers, the Commission, lawyers and consultants and ultimately the judicial system which will be further called upon to adjudicate the numerous unresolved issues which arise from this protracted process.

Current Definitions and Statutory Modifications Since April 1988, the present definition of "entrepreneur" incorporating the notions "substantial investment", "significant contribution to the economy" and "employment opportunities for one or more Canadian citizens or permanent residents" has been the focal point of the Entrepreneur Class and by extension, the terms and conditions compliance process.

Since 1 February 1993, the authority for entrepreneurial terms and conditions have been set out in the regulations under Section 23.1(1) and replaced the old R23(d)(iii) and (iv).

23.1(1) Entrepreneurs and their dependants are prescribed as a class of immigrants in respect of which landing shall be granted subject to the condition that, within a period of not more than two years after the date of an entrepreneur's landing, the entrepreneur

a. establishes, purchases or makes a substantial investment in a business or commercial venture in Canada so as to make a significant contribution to the economy and whereby employment opportunities in Canada are created or continued for one or more Canadian citizens or permanent residents, other than the entrepreneur and the entrepreneur's dependants;

b. participates actively and on an on-going basis in the management of the business or commercial venture referred to in paragraph (a);

c. furnishes, at the times and places specified by an immigration officer, evidence of efforts to comply with the terms and conditions imposed pursuant to paragraphs (a) and (b); and

d. furnishes, at the time and place specified by an immigration officer, evidence of compliance with the terms and conditions imposed pursuant to paragraphs (a) and (b).

For the first time since 1976 and as a result of Bill C-86, mandatory universal terms and conditions of landing are now being imposed on all entrepreneurs and their dependents. As well, legislative provisions under Bill C-86 enable immigration officers to track and monitor all entrepreneurs on a periodic basis. Entrepreneurs are required under current legislation, to furnish evidence of efforts of compliance during the two year period after landing, and to furnish evidence of compliance at the end of the two year period. Non compliance either during or after the two year period, is reportable and can give rise to enforcement action.

Since the implementation of Bill C-86, the only mechanism to cancel terms and conditions is by application to vary or cancel pursuant to A15. This substantially modifies the deeming provisions under the previous legislation where terms and conditions were deemed to have been cancelled six months after the day on which permanent residence was granted.

Overview of Current System
Under the parameters of the current system, immigration officers at the visa offices, ports of entry, National Headquarters (NHQ), Regional Headquarters (RHQ), and officers at inland offices will assume shared jurisdiction in various aspects of selecting, landing, monitoring, counseling, and assessing program compliance of permanent residents landed as entrepreneurs.

Visa officers are currently undergoing training in the terms and conditions compliance process. Officers are being encouraged to recommend that entrepreneurs undertake exploratory visits to Canada and participate in information sessions sponsored by the Provinces. Upon final disposition of applications, visa officers will recommend the terms and conditions and will counsel entrepreneurs on program compliance.

At the ports of entry, officers are legally responsible for imposing terms and conditions. At this stage, the entrepreneur and dependents will undergo further counseling and will be requested to sign the declaration on the IMM1000 which will include an attachment containing the text of the terms and conditions. This attachment confirms the universal terms and conditions and constitutes a part of the Record of Landing.

Immigration officers at inland CIC offices are responsible for assessing the entrepreneur's efforts to comply, and to render decisions on compliance. They are also responsible for taking appropriate enforcement action in the form of A27(1) reports, and generally, to provide ongoing counseling and monitoring of entrepreneurs' progress and to provide them with effective guidance in their efforts to comply.

The RHQ office is responsible to provide concurrence on all A27(1) reports recommending a direction for inquiry and to monitor CIC decisions to ensure compliance with program requirements.

Within NHQ, the Case Management Branch undertakes a hands on approach to direct queries regarding an officer's decision on an application to cancel or vary terms and conditions of landing.

The Monitoring and Compliance Process
Pursuant to R21.1(1)(c), the Commission has established a reporting process at six month intervals during the two year period following landing, requiring entrepreneurs to provide evidence of efforts to comply with terms and conditions. This enables inland officers to advise entrepreneurs as to whether or not their business activities would satisfy the imposed universal terms and conditions of landing.

During the period between 0-6 months, the entrepreneur is required to forward the mail-in card (IMM 5215), to the RHQ of the province or territory in which he resides. The post mark on the envelope indicates the date of compliance. Failure to comply with this requirement within the first six months of entering Canada is a violation and is reportable under A27(1)(b).

Thereafter during the intervals 6-12, 12-18 and 18-24 months following landing, entrepreneurs will continue to report and are required to provide written evidence of efforts to establish, purchase, or make a substantial investment in a business or commercial venture in Canada.

Entrepreneurs are required to submit all supporting evidence of compliance prior to the expiration of the two year period. However, officers do have discretion to delay making their decision in order to address particular cases where businesses have been created near the end of the two year period. Where entrepreneurs are assessed as having complied with the terms and conditions of admission, they will be encouraged to file their applications to vary or cancel terms and conditions.

Substantial Investment/Significant Contribution To The Economy
Parliament and by extension the Governor in Council, has elected to refrain from defining these regulatory notions in acknowledgement of Canada's changing economic requirements within each of the provinces and territories. In the recent case of Chan v. Canada (Minister of Employment and Immigration) Court file 92-T-1825, May 12, 1994 (unreported) (F.C.T.D), the words "that will make a significant contribution to the economy" in the definition of "entrepreneur", were held not to be subjective and vague or ultra vires the Immigration Act.

Accordingly it can be expected that officers will continue to solicit the opinions of their provincial counterparts with respect to their views on the concept of significant economic benefit and substantial investment. Indeed, the Commission is adopting the position that officers are not expected to become experts in the business field.

However, the discretionary authority which officers exercise to either acknowledge compliance and approve or refuse an application to cancel or vary terms and conditions, must be used within confined limits. Moreover, pursuant to the principles of the duty to act fairly, entrepreneurs are entitled to receive, and immigration officers are required to demonstrate, a level of professional competency which is commensurate with their important role as counselors in this increasingly bureaucratic process which seemingly exemplifies an enforcement minded institution.