Answer ... With limited exceptions for federal works and undertakings such as banks, the provinces have jurisdiction with respect to employment law matters.
Each Canadian province has enacted employment standards legislation which provides minimum standards for the basic terms and conditions of employment, including:
- minimum wage levels;
- vacation and holiday pay;
- hours of work;
- leaves of absence (including maternity and parental leave);
- notice periods for termination; and
- in some jurisdictions, severance payments.
Employers and employees are not permitted to contract out of these prescribed minimum standards.
There is no ‘employment at will’ in Canada. Consequently, unless there is just cause for terminating an employee’s employment, he or she is entitled to notice, or pay in lieu of notice, upon termination of his or her employment. The employer has the burden of proof to establish just cause for termination and whether there is just cause will depend on the facts of each particular circumstance.
An employer and an employee may enter into a written employment agreement that, among other matters, sets out the notice period that will apply upon termination without cause, which must not be less than (but may be limited to) the minimum period prescribed by employment standards legislation. If the employment agreement does not provide for an enforceable notice period, then the employee is entitled to a reasonable amount of notice pursuant to common law. Courts have assessed this by taking into account various factors, such as the employee’s age, length of service, position, remuneration and inducements, and the current employment market. The length of common law notice periods in Canada tends to be more generous than employment standards minimums.
In addition, employers must comply with provincial human rights legislation, which prohibits discrimination on the basis of certain personal characteristics, such as race, gender and religion, and requires employers to take all reasonable steps to avoid a negative effect based on a personal characteristic.
Answer ... Canadian citizens and newcomers to Canada with permanent resident status can work in Canada without a valid work permit. Fintech businesses planning to hire a foreign worker must go through one of several federal or provincial/territorial immigration programmes, such as the Temporary Foreign Workers Program or the International Mobility Program.
Typically, Canadian businesses must obtain a labour market impact assessment (LMIA) from Employment and Social Development Canada (ESDC) before hiring a foreign worker. In order to obtain an LMIA, the business must prove that there is no Canadian (or permanent resident) available to fill the position, and that a foreign worker is therefore required. Processing times for LMIAs can vary from weeks to months. Once obtained, the LMIA is provided to the foreign worker to submit with his or her work permit application.
However, in 2017 the Canadian government introduced the Global Talent Stream (GTS) programme, whereby the ESDC will expedite the processing of an LMIA if the position being hired is included on the ESDC’s Global Talent Occupations List or if the hiring business has been referred by a designated referral partner on the basis that the position being requested requires unique and specialised talent to help the business scale up and grow. Under the GTS programme, LMIA applications are processed within two weeks, which is a significant time saving on regular LMIA applications. The GTS programme is relevant to fintechs because the Global Talent Occupations List includes several technology-related positions, such as computer programmers, software engineers, database analysts and data administrators, information systems analysts and consultants designers, and web designers and developers.