Class-action suit initiated by temporary foreign worker over Canada’s closed work permits clears hurdle
Migrant workers are one step closer to getting their day in court to challenge part of Canada’s temporary foreign worker program as unconstitutional for restricting them to working only for their sponsoring employers.
On Friday, a Quebec court gave the green light to a class-action lawsuit initiated by a Guatemalan worker, who alleges that the closed work permit system, in place since 1966, was rooted in direct discrimination based on race, national or ethnic origin and colour, violating the Canadian Charter of Rights and Freedoms.
“The Court finds that at this preliminary stage, while the threshold test is high, there is an arguable case that the employer-tying measures are ‘clearly unconstitutional’ giving rise to a claim for damages under the Charter,” wrote Superior Court of Quebec Justice Silvana Conte, in certifying the legal action.
The judgment comes as Prime Minister Justin Trudeau’s government has been facing criticism for the skyrocketing use of temporary foreign workers in Canada, a system that a recent United Nations report called a “breeding ground for contemporary forms of slavery.”
Byron Alfredo Acevedo Tobar, the designated member of the class action, came to Canada on a closed work permit in 2014 to work in a poultry-catching business based in Granby, Que. He claims that he was required to work an average of 12 hours a night with only three 10-minute breaks; he had to catch up to 40,000 chickens a night, at a rate of five chickens in each hand for every catch; and he was frequently underpaid or paid late.
He alleges that he feared complaining could lead to being fired, threatening his status in Canada, his ability to obtain a renewal of his permit, his ability to earn a living and his longer-term prospects of immigrating permanently. He would end up spending most of his next decade in Canada on six separate closed work permits.
As opposed to an “open” work permit, foreign workers on a “closed” or “employer-specific” work permit can only work here according to the specific conditions on the permit, such as working for the named sponsoring employer. Migrant workers from the global South in low-wage, low-skill jobs are generally issued a closed work permit.
Although Friday’s court decision marks the beginning of what’s believed to be a long legal battle, advocates say they are happy the first hurdle has been cleared.
“We asked for the permission of the court (to go ahead) and we got it,” said Eugénie Depatie-Pelletier of the Montreal-based Association for the Rights of Household and Farm Workers, which filed the court case on behalf of closed work permit holders.
“Canada has had a class of unfree labour. We’ve modified the way we talk about them, but it’s always more of the same, that is, racialized workers in conditions of servitude by the state.”
The Immigration Department declined to comment on the ruling, saying the matter is still before the court.
The class-action application claims the employer-tying measures within the temporary foreign worker program violate the workers’ rights of liberty as well as their right to life and security. It also alleges that their equality rights are breached on the basis of national or ethnic origin, race and colour.
In objecting to the litigation, the government argued that the work experiences of all temporary foreign workers are unique and Acevedo Tobar couldn’t “adequately” represent everyone else, and it said the alleged facts did not justify the conclusion sought that the closed work permit practice was unconstitutional.
Instead, at best, it contended that the proposed class should be restricted to those migrant workers who were or are employed under the agriculture and caregiver worker streams of the temporary foreign worker program.
It also demanded that the period for the class should only begin after Sept. 14, 2017 — limiting it to a maximum six years before this legal action was filed — as opposed to the starting point of April 17, 1982, when the Canadian Charter of Rights and Freedoms took effect.
The court disagreed, as the government itself has “on repeated occasions” acknowledged the inherent power imbalance conducive to the abuse and ill-treatment of migrant workers under the program. Government efforts meant to strengthen the protection of migrant workers’ rights and to improve employer compliance against mistreatment and abuse by employers also reflect the concerns over the closed work permit regime.
“There is no requirement that each member of a group be in an identical or even a similar position in relation to the defendant or to the injury suffered,” wrote Conte wrote in her 22-page decision.
“A declaration that the employer-tying measures are unconstitutional and/or a violation of the Charter would resolve the issue for all members of the Class.”
At this stage, she added, it’s too early to determine the prescription of the class.
The government will have 30 days to decide whether to appeal the class-action certification ruling and the trial, if moving ahead, would likely be scheduled for 2026.
This article was first reported by The Star
