Canadian officials denied this professor permanent residence, considered her not employed between semesters

College professor Lavaughn Diane John’s work doesn’t stop on the last day of school.

 

Between semesters, she has to mark exams, upload the final grades, respond to students’ questions, attend staff meetings and training, and prepare for the courses she is teaching in the next term.

 

As per her collective agreement, John is only paid for the hours that are taught in class, but the wages are meant to compensate for her obligations outside the classroom as well. And as a “partial load” professor or the equivalent of a permanent part-timer, she is hired on a new contract each semester.

 

Whether she should be deemed employed between semesters is at the centre of a challenge before the Federal Court that could have implications for other immigration applicants whose qualification hinges on their employment status in Canada.

 

According to the Immigration Department, John was not considered “employed” between semesters when the former international student from Trinidad and Tobago submitted her permanent residence application on May 6, 2021.

 

“It clearly shows that your contract ended April 23, 2021, and a new contract started on May 18, 2021,” an official said in refusing John. “I am not satisfied that you meet the eligibility criteria.”

 

John, a citizen of Trinidad and Tobago, has a master’s in English language teaching from the U.K. and ran a language school in Brazil for 20 years before arriving in Canada as an international student at Seneca College in 2017.

After finishing a two-year marketing program, the now 51-year-old mother of two received her postgraduation work permit and has been teaching English and communications at a public college in Toronto since 2019. Despite her education credentials, she did not make the cut for permanent residence because of her relatively mature age and Canada’s skilled immigration system that favours younger applicants.

 

John was thrilled in 2021 when then Immigration Minister Marco Mendicino introduced a one-time program to grant permanent resident status to 90,000 work permit holders in Canada, including international graduates from a Canadian post-secondary institution. The catch was they must be working legally at the time of their application to qualify.

 

The program was meant to allow Ottawa to meet its annual immigration target in spite of the border closures and maintain the labour force as part of the post-pandemic economic recovery strategy.

 

“I was over the moon,” she said n an interview. “It was a perfect opportunity to apply and to get my permanent resident status.”

 

Juggling work outside classroom between semesters, John compiled all the required documentations and submitted her application on May 6, 2021, as soon as the program opened for application. All spots for international graduates were filled within a day.

 

John said she was confident she met all the criteria, including a minimum language requirement, and waited patiently.

 

A year and a half later, in December 2022, she was notified by the Immigration Department that she might be ineligible because all the documents she had provided only indicated she worked in April 2021 and there were no pay stubs for May that year. She was given 30 days to respond.

 

In her submissions, John provided a letter from her employer, listing the duties she was required to perform between semesters as well as her union’s collective agreement to explain how the wage was structured and why pay stubs only covered the dates of the academic semester. She maintained continuous employment benefits, including health and dental insurance, between semesters, as proof that she was deemed employed during school breaks.

 

By refusing to accept that John was paid to work during school breaks, the Immigration Department is essentially suggesting that her employer “unfairly and illegally” had her perform unpaid work between semesters, said the woman’s lawyer Luke McRae.

Then in March 2023, immigration officials refused John’s application, claiming she failed to respond to the concern they raised over her employment status. The Immigration Department reopened her application upon her lawyer’s protest, but refused it again two months later, concluding that she was not considered employed on May 6, 2021.

 

John is appealing the decision before the Federal Court, arguing immigration officials failed to “meaningfully” review her response to the employment issue and wrongfully hinged the refusal on the lack of an employment contract at the time she submitted her application. She asks that the refusal be set aside and a new officer be assigned to review the application.

 

“Let’s look at the facts on the ground and what’s happening between the employer and employee. Her work does not start on the first day of class or end on the day of the final exam,” McRae said in an interview. “The officer fails to do that. I think here the case could not be more cut and dried.”

 

Depending on its outcome, John’s case could redefine employment status and affect applicants in other immigration programs. For example, to qualify for permanent residence under the Canadian Experience Class, applicants are required to have accumulated a total of 30 employment hours a week for one year in the three years before submitting an application.

 

It leads to the question of whether individual immigration officers are going to count the actual number of hours an applicant was working or just the hours she got paid for — and what role a formal employment contract plays in the assessment.

 

“This injects a lot of uncertainty,” McRae said.

 

In its submissions to the court in response to John’s appeal, the government said the case should be dismissed because the applicant is simply asking the judge to reweigh the evidence that was before the immigration officer, who did not have to respond to each piece of information and evidence in reaching a decision.

 

It acknowledged John did perform some work tasks between semesters, but contended that it doesn’t overcome the fact that she did not have an employment contract and was not receiving wages on the very day she submitted her permanent residence application in 2021.

 

John’s postgraduation work permit is non-renewable and expires in December.

 

John said she came to Canada so her son and daughter, now 18 and 17 respectively, can live in a safer environment and get a good education. If not for her children, she would just pack and go back to Brazil, where her husband is running their English language school.

 

“We give them hope and dreams, and then what do you do after that?”

 

 

 

This article was first reported by The Star