Last week, we wrote about how Ontario is calling for more immigrants to flow into the province to address the mounting labour shortage. This week, the province’s immigration minister has called for greater control over selecting economic class applicants for acceptance into Ontario. This blog provides a snapshot of how power in Canada’s immigration system is divided between the provincial/ territorial and federal governments.

What is federalism?

Federalism is the system of government in which power and jurisdiction are divided between a central (“federal”) governing body and regional or state-level (in Canada, provincial or territorial) governments. Canada’s system of federalism began in 1867 with the passing of the British North America Act, which created the Dominion of Canada.

Many people believe that a federal government is “the boss” of the provincial governments, but this is not the case. The relationship between the federal and regional governments is horizontal in a federalist system.

What is each government in Canada responsible for?

The British North America Act, now known as the Constitution Act, 1867, gave the federal government jurisdiction over several areas, including:

  • Trade and commerce;
  • Money, banking and currency;
  • Natural resources; and
  • Energy development

By contrast, the Act gave the provinces exclusive control over matters like:

  • Education;
  • Health care;
  • Property; and
  • Civil rights.

Which level of government is responsible for immigration?

While many areas are within the exclusive jurisdiction of the federal or provincial governments, there are areas of mixed (or “concurrent”) jurisdiction. For example, both levels of government have the power to pass laws – i.e., concurrent jurisdiction – over agriculture-related matters.

Similarly, section 95 of the Constitution Act, 1867 gives concurrent jurisdiction for passing immigration laws in Canada. This section reads:

95 In each Province the Legislature may make Laws in relation to Agriculture in the Province, and to Immigration into the Province; and it is hereby declared that the Parliament of Canada may from Time to Time make Laws in relation to Agriculture in all or any of the Provinces, and to Immigration into all or any of the Provinces; and any Law of the Legislature of a Province relative to Agriculture or to Immigration shall have effect in and for the Province as long and as far only as it is not repugnant to any Act of the Parliament of Canada.

Although both levels of government may pass laws on immigration, in practice, it is a federal administrative body that primarily oversees immigration in Canada: Immigration, Refugees and Citizenship Canada.

What about Québec?

Although Immigration, Refugees and Citizenship Canada is the primary body responsible for immigration in Canada, certain provinces have created special arrangements over time to exert more control. For instance, the province of Québec has had its own immigration department since 1968.

In the 1960s, the birth rate in Québec declined significantly. In response, the province chose to take more control over immigration to attract more French-speaking immigrants.

Out of all Canadian provinces, Québec has the most autonomy in creating immigration policy by far. Although its immigration department was created in 1968, the province renegotiated its arrangement with the federal government four times between 1971 and 1991. The final renegotiation resulted in the Gagnon-Tremblay-McDougall Agreement, also known as the Canada-Quebec Accord. The Accord gave the province control over economic immigrants, allowing it to determine the number of potential permanent residents who immigrate to the province. The federal government can only interfere and overrule the province’s decisions on specific candidates based on serious criminality or medical reasons.

Federal-Provincial/Territorial Agreements

Québec is not the only province that has taken an interest in obtaining greater control over its immigration policy. In 1978, Nova Scotia and Saskatchewan signed agreements in response to Québec’s actions. While other provinces followed suit, these agreements did not allow for the provincial selection of immigrants. By the 1990s, the Atlantic provinces were concerned they were not getting a fair share of immigrants to help bolster their economies. Manitoba also raised issues with the lack of skilled workers immigrating to the province.

In response to these mounting concerns, the federal government developed the Provincial Nominee Program. Since 2017, most provinces and territories have agreements with the federal government on immigration (with the exception of Québec and Nunavut). While Québec retains the most control, these Federal-Provincial/Territorial Agreements provide more power to collaboratively select immigrants coming into the country. Each agreement is structured differently to reflect the specific needs of each province or territory.

Each province’s arrangement is drastically different in practice

Considering this history, Ontario’s calls for more control over its immigration policy are not exactly new. Ontario only selected less than 5% of the 211,000 immigrants coming to the province in 2022. By contrast, Québec was able to select approximately 50,000, British Columbia was able to select up to 11,000, and Nova Scotia chose 50% of its immigrants.

In Ontario, this disparity is particularly challenging with its roughly 378,000 job vacancies. However, there is hope. The Canada-Ontario Immigration Agreement is set to expire in the fall of this year. According to the Minister of Citizenship and Immigration, negotiations have already begun.

Garson Immigration Law Provides Comprehensive Immigration Help in Toronto

Garson Immigration Law is a Toronto-based law firm that helps people find solutions for their immigration needs, such as obtaining permanent residence in Canada and overcoming inadmissibility. Our focus on immigration allows us to understand our clients’ unique concerns and obstacles. Our skilled immigration lawyers have extensive expertise in all immigration matters, including work permits, student visas, and US immigration from Canada. If you have any questions about an immigration matter, do not hesitate to contact us online or call us at 416-321-2860.

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