Employers are required to determine the province or territory of employment of their employees to make appropriate source deductions. In recent years, the sharp rise in full-time or hybrid remote work has made it harder for employers to comply with their source deduction and employer contribution obligations. With employee mobility on the rise, the province of employment is often no longer directly correlated with the employee’s province of residence. This means employers have to analyze the facts of each employee’s situation to determine the applicable province of employment.
The Canada Revenue Agency (“CRA”) generally considers that the province of employment should be based on the employer’s establishment where an employee physically reports for work. With some employees no longer reporting for work physically at their employer’s establishment due to full-time remote work, it may become difficult, in some cases, to determine the province of employment with certainty. The CRA tends not to consider an employee’s home office to be an employer’s establishment. This interpretation differs from that of Revenu Québec, which historically considered, for Quebec source deduction and employer contribution purposes, that an employee’s home office could be deemed an employer’s establishment to which the employee is attached where (1) the employer carries on business through its employee established in that place and (2) the employee in question has general authority to contract for the employer or has a stock of merchandise owned by the employer from which the employee regularly fills orders which the employee receives.[1]
As a result, it has historically been CRA policy that if the employee did not physically report for work at any of the employer’s establishments, their province of employment was deemed that of the employer’s establishment from which the employee’s salary was paid.
On January 1, 2024, the CRA issued a new administrative policy[2] to assist employers in accurately determining the province of employment in connection with remote work. Revenu Québec has aligned itself with this policy.[3] This new policy only applies to income tax, CPP/QPP, EI and QPIP deductions.
The CRA’s new administrative policy applies only if:
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- there is a full-time remote work agreement between the employee and the employer; and
- the employee is reasonably considered attached to an establishment of the employer.
Full-time remote work agreement
Such an agreement shall be deemed to have been entered into where the employer directs or allows employees to perform their employment duties full-time remotely, with no obligation to report for work physically at the employer’s establishment. The employee’s employment duties must be performed entirely at one or more locations that are not establishments of the employer.
Attachment to an establishment of the employer
Once the existence of a full-time remote work agreement has been established, the employer must determine whether the employee is reasonably considered attached to an establishment of the employer. This is done by analyzing the facts of each employee’s situation in light of all of the following primary and secondary indicators:
- a) Primary indicators:
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- i. The location where the employee would physically report to work to carry out their employment duties if no full-time remote work agreement had been entered into with the employer;
- ii. If immediately before entering into a full-time remote work agreement, the employee physically reported to an establishment of the employer to carry out their employment duties, that establishment is the one to which they would be reasonably considered to be attached, unless the employee’s circumstances have changed since then.
- b) Secondary indicators: If no full-time remote work agreement has been entered into with the employee, the employee would report to work physically at:
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- i. the establishment where the employee attends or would attend in-person meetings, through any type of communication;
- ii. the establishment where the employee receives or would receive work-related material or equipment or associated instructions and assistance.
- iv. the establishment that is responsible for or supervises the employee, as indicated in the contractual agreements between the employer and the employee.
- v. the establishment to which the employee would report based on the nature of the duties performed by the employee.
Accordingly, the province of employment of an employee who has entered into a full-time remote work agreement with their employer will be the province in which they are reasonably considered to be attached to an establishment of the employer. If as a result of this analysis, the employee can be reasonably considered attached to more than one of the employer’s establishments, the employer must use the same indicators to determine which establishment the employee can be reasonably considered to be more closely attached to. If as a result of this analysis, the employee is not considered to be attached to an employer’s establishment, the province of employment will be that of the establishment from which the employee’s salary is paid.
It is important to note that hybrid remote work agreements where the employee can work remotely but also reports to work physically at an employer’s establishment are not covered by this new administrative policy. In such cases, the province of employment will be that of the employer’s establishment where the employee spends the most time.
In conclusion, this new CRA administrative policy provides clear guidance for employers to determine the province or territory of employment given the growing phenomenon of full-time remote work. By setting out specific criteria for determining whether a full-time remote work agreement has been made and identifying primary and secondary indicators for determining whether the employee is considered to be attached to an employer’s establishment, this policy is intended to help employers comply with their source deduction and employer contribution obligations. This is essential in addressing the challenges posed by new ways of working while ensuring tax legislation and employment regulations are applied in a fair and equitable manner.
[1] In particular, Agence du revenu du Québec, 17-037907-001, Retenues à la source – Présence à un établissement de l’employeur, December 12, 2017.
[2]Canada Revenue Agency, https://www.canada.ca/en/revenue-agency/services/tax/businesses/topics/payroll/set-up-new-employee/determine-province-employment.html,
[3]Agence du revenu du Québec, https://www.revenuquebec.ca/en/press-room/tax-news/details/2023-11-14/administrative-policy-on-determining-the-province-of-employment-for-quebec-source-deductions-and-employer-contributions/
