Treaty-based waivers will be granted if the following criteria are met:

• the applicant's presence in Canada under the contract for the "project" will be less than 180 days; and
• services for the current project and other projects within the "period" are performed in Canada at identifiably different "production sites"; or the current project is not "related" to the other projects; and
• services are not "repetitive".

Days in Canada

Refers to the time during which the applicant will provide services in Canada for each project. Items taken into account are:

• The duration of the stay is normally calculated according to the service contract, which must be provided when the waiver is submitted.
• It includes the number of days, or any part thereof, that the non-resident applicant is physically present in Canada in order to perform the services under the contract.
• The presence may be by one or more natural persons, either resident or non resident, employees or otherwise (for example self-employed workers).
• The duration will generally include the days of arrival and departure of the applicant or its employees or agent, and all other days of physical presence in Canada, such as weekends and statutory holidays.
• Periods spent outside Canada during the stay may reduce the duration of the stay. However, as these days are not predictable at the beginning of the contract period, the total days of the contract are generally used to calculate the duration of the stay in Canada. To provide for exceptional cases where time will be spent outside Canada during the contract period, the CRA will allow for a decrease in the duration of the stay if the time spent outside of Canada each time will be five or more consecutive days.
• The stay in Canada does not have to be within one calendar year and may extend over two (for example October 1, 2008 to March 15, 2009).
• Generally, the pre-contractual presence of the non-resident applicant to make proposals on contracts will not be counted unless the work performed in this period will form part of the compensated services. Once compensated services have commenced, each day present will be counted.
• The non-resident applicant must provide sufficiently detailed information so that the waiver officer can determine the duration of the stay in Canada taking into consideration any expected periods of absence of five or more consecutive days, during any contract/engagement period. The applicant must include employment contract, subcontracts, service contracts, flight/travel arrangements and rehearsal schedules.

Behind-the-Scenes (BTS) applicant

A behind-the-scenes applicant is an individual, corporation, partnership or joint venture seeking a waiver or reduction in the amount of the prescribed withholding tax for services provided in Canada.

Loan-out corporation

A loan-out corporation is a corporation primarily intended to provide the services of an individual who is a shareholder of the corporation, or is related to a shareholder of the corporation.

Major studios (MS)

Major studios are large film studios and large production or distribution companies.

Period

Period refers to the current calendar year, the three immediately preceding calendar years, and the three immediately following calendar years. For the following years, we consider only activities under confirmed or signed contracts unless the applicant can reasonably estimate the level of activity in Canada in those future years.

If the waiver is requested for services that cover more than one year, the current year is the year in which the services commence.

Production company

A production company is an organization or business that develops and produces film or digitally recorded visual productions.

Production site

A production site ia a geographic location in Canada used for a project, determined relative to the industry and type of activity (e.g. shooting a feature film) under consideration. A production site, therefore, is not limited to the production office, studio space, or studios lots used by the non resident, unless all production activities occur there. It could also be the metropolitan area of a large city if the activities are performed in various places within that area. For example, services performed in a production studio in Vancouver would be combined with services performed on the same project in other locations in the Vancouver area.

Project

A project is a production in Canada of a film or digitally recorded visual production, including feature films, television movies, television series, episodes, documentaries, video productions and commercials.

Related Projects

Projects are related when the second continues the services provided as part of the first project and are carried out by the same production company or major studio. Projects are also related if the services performed by the BTS applicant are provided under the same contract for services. For example, when the BTS applicant is under contract to a major studio to perform services on a number of separate projects, the projects are considered to be related.

Repetitive services

Services are considered repetitive when the BTS applicant routinely provides services in Canada in the same geographic location.

• Repetitive services include cases when a BTS applicant performs services in Canada in the same location year after year.
  • In this context "year after year" does not necessarily mean "every year", but merely that a history exists of performing services in the same location most years.
  • Waivers denied under these criteria will usually be limited to situations where the BTS applicant has provided such services in Canada in three or more previous calendar years.
• Repetitive services also include cases where a BTS applicant commutes to the same geographic location in Canada.
• Applications may also be reviewed under these criteria if the BTS applicant is under contract to perform services in Canada in future years.
  • The applications reviewed on this basis will be limited to situations where the BTS applicant is under contract to provide services in Canada in three or more years in the same geographic location.