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The Interpretation of “Duties” Under the Canadian Experience Class

The Interpretation of “Duties” Under the Canadian Experience Class

Have you ever wondered how to match your work experience with the NOC? With these helpful tips you will be able to find the exact NOC code.

A Substantial Number of the Main Duties

The main issue in this article is the interpretation of the provision “a substantial number of the main duties” found in paragraph 87.1(2)(c) of the Immigration and Refugee Protection Regulations, SOR/2002-227.

Hence, the applicant must have performed a substantial number of the main duties, including all the essential duties, of the occupation as set out in the occupational descriptions of the National Occupational Classification (NOC).

Visa officers construed the wording “a substantial number” as “most” while considering whether the applicant passed the legal test on a balance of probabilities. Proving facts on a balance of probabilities means that it is more likely than not to have happened. Therefore, when a decision-maker concludes that something is 51% likely to have occurred than the evidence established the fact.

This includes all the essential duties and most of the main duties listed.

Literature tends to define “most” as “half plus 1” as stipulated in Chantal Desloges & Cathryn Sawicki, Canadian Immigration Refugee Law: A Practitioner’s Handbook, 3rd ed (Toronto, ON: Emond, 2021) on page 353. Consequently, the applicant must fulfill the lead statement and most of the main duties of the NOC to become a member of the Canadian experience class.

In Potla v Canada, 2020 FC 646, the court noted at para 34 and 35 that the emphasis must lie on sales and promotions to satisfy the lead statement for financial sales representatives. The description of NOC 2016 Version 1.3 Code 6235 lists 10 main duties. Thus, the applicant must perform the lead statement and at least 6 of the main duties.

However, Pelletier J. held, in Paracha v Canada, 1999 FC 8591 at para 7, that the word "some” of the NOC means “more than one” of the main duties. Since 1999, Federal Court jurisprudence has established that “substantial number” is to be interpreted as “more than one” (A'Bed v Canada, 2002 FCT 1027 at para 15, Tabanag v Canada, 2011 FC 1293 at para 18, and Saatchi v Canada, 2018 FC 1037 at para 27).  Hence, we have some room for interpretation to demonstrate Canadian work experience.

When pointing out the differences between a NOC A and B occupation, pay close attention to the verbs used in the descriptions. In Bighashi v Canada, 2013 FC 1110, the Federal Court of Canada stated at paragraphs 15 and 19 as follows:

[15]         Having determined that the officer did not breach the duty of fairness owed to the Applicant, I also find that the officer’s conclusion that the Applicant did not submit sufficient evidence that he performed the actions required of an accountant as set out in NOC 1111, was reasonable. I agree with the officer’s observation that the duties set out in the employment letter more closely matched those of the bookkeeper classification than those of an accountant. I reject the submission that Mr. Bighashi’s application was assessed against the bookkeeper NOC code. All the officer did was to make an observation. The application was properly assessed for eligibility against NOC 1111.

[19]           The officer found that the employment letter did not establish on the balance of probabilities that Mr. Bighashi “performed the actions in the lead statement.”  Nothing in the listed responsibilities in the employment letter can be interpreted as examining, analyzing, planning, or organizing and administering accounting and financial records. The Applicant’s duties are limited to making payments and preparing lists, reports, and correspondence. The officer’s reasons for this finding are adequate and reasonable.

All Essential Duties

To find out more about the mysterious phrase “all of the essential duties,” one needs to research the regulatory intent by looking up historical records.

The best way to understand the intent of a regulatory amendment is by reviewing its Regulatory Impact Analysis Statement, which is available in the Canada Gazette. This statement will also provide helpful background information on how the regulation was developed. In a nutshell, one must refer to the Immigration and Refugee Protection Regulations, P.C. 2012-1643, December 6, 2012, SOR/2012-274, s. 13, Canada Gazette, Part II, vol. 146, no. 26, p 2917, December 19, 2012.

"A substantial number of the main duties" and "all of the essential duties" are used interchangeably as set out at page 2917.

For this purpose, the applicant must have performed a substantial number of the main duties listed in the description of the occupation set out in the NOC, which means that they have performed the essential duties of the occupation.

Mystery solved.

Disclaimer

This article does not constitute immigration or citizenship advice. If you require more information, then you should discuss your matter with a Canadian immigration professional.

About the author

Katharina Kontaxis[CICC ID: R512662]
KIS Migration offers Canadian immigration and citizenship consulting services. Its business model of Keeping It Simple is key to success. KIS Migration assists you on your journey to Canada while making the process easy for you.
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