In the spring/ summer of 2002, the Canadian Government will implement an entirely new Immigration Act known as "Bill C-11." C-11 attempts to modernize the selection system for skilled workers.

Under the new Act, skilled workers will be evaluated against a revised point grid which shifts the emphasis from the present occupation-based model to a model which attempts to select skilled workers with knowledge-based skills which can be employed across the spectrum of various occupations. It is fashioned on the "new speak" human capital model of immigration so popular now with social scientists.

The Canadian Minister of Immigration explained that C-11 moves the evaluation process from a selection system where, in order to qualify, individuals must find themselves described on an occupation list of occupations that may no longer be in demand and do not fit with a labor market where individuals move between professions. Research and consultation has shown that the Canadian economy now needs knowledge workers with flexible skill sets to apply in different work environments occupations. The new selection system is built on those flexible skills sets with sufficient levels of education and language skills. In theory therefore, people can arrive, land on their feet and move in and out of occupations within the knowledge-based economy.

In order to identify the best candidates, points awarded for education will be determinative of success or failure in many cases. Except for some skilled trades persons, applicants without at least an undergraduate degree will likely be ineligible. However, special consideration will be given to select skilled trades people with good human capital attributes whose skills are in high demand in Canada's industrial, construction and manufacturing sectors.

The second major determinative factor will be fluency in English of French. Candidates, even those with university degrees, who do not possess at least a working command of either official language will likely not accumulate sufficient points to succeed.

However the new pass/ fail mark has not yet been determined and the Minister has announced that the legislation will be retroactive. In other words, all applicants who are assessed after the implementation of the Bill will be assessed under the new criteria even if their applications were made prior to the implementation date. This raises the likelihood that some pending applicants whose case are adjudicated after implementation will not meet the pass fail mark although they may have done so had their cases been adjudicated under the legislation in place when they applied.

Retroactive application will result in hardship to many applicants. However, the department appears committed to this agenda because it would likely clear a huge backlog of cases awaiting adjudication in consulates such as Delhi and Beijing. This is unfair, discriminatory and guaranteed to result in litigation under the Canadian Charter of Rights and Freedoms as well as the common-law doctrine of "legitimate expectation".