Ottawa faces class action alleging rules around migrant workers are discriminatory

We shall see (all immigration policy is inherently discriminatory, the question revolves around whether it is for legitimate reasons or not).

It seems like a bit of a stretch to argue that:

“There were now increasing numbers of persons of colour. These schemes were justified on the basis that the immigrants of certain races, colours, or ethnic or national origins were considered unable to assimilate to Canada’s climate and society and to be better-suited for ‘unfree’ and low-skilled work.”

Whe Canada was also abolishing race-based restrictions on permanent residents.

As a child, he would get postcards from his aunt in Canada and dream to see the country and live here one day.

In 2014, as a 22-year-old, he reached out to a compatriot from Guatemala and scraped together $3,000 to pay for a job offer in poultry catching from the man’s employer in Quebec.

He would end up spending most of his next nine years in Canada as a migrant worker — on six separate closed work permits, which only allowed him to work for his sponsoring employers despite what he described as abusive and exploitative conditions and treatment.

Identified in court documents only as A.B., the young man is leading a class-action lawsuit initiated against the Canadian government for violating migrant domestic workers’ and farm workers’ Charter Rights under the closed work permit regime.

“What we’re trying to do is challenge all the provisions of the immigration regulations that allow the federal government to bind these workers and to restrict their rights to change employers,” said Eugénie Depatie-Pelletier, executive director of the Association for the Rights of Household and Farm Workers, which filed the court case on behalf of closed work permit holders.

“It’s time to put an end to nonfree work, a system that treats the worker as the quasi-property of her employer.”

The plaintiffs are asking the court to declare the provisions of the immigration law that allow such practice unconstitutional, and to award damages to migrant workers who have been subjected to “employer-tying measures” on or after April 17, 1982, when the Canadian Charter of Rights and Freedoms took effect.

None of the claims have been proven in court.

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 work permit, such as working for the named employer. Migrant workers in low-wage, low-skill jobs are generally issued a closed work permit.

The lawsuit alleged that “employer-tying measures” were rooted in direct discrimination based on race, national or ethnic origin and colour.

“The development of these schemes coincided with a shift in the demographics of the immigrants entering Canada to work in these occupations. They had previously included predominantly ‘white’ immigrants,” said the 55-page court application filed on Thursday.

“There were now increasing numbers of persons of colour. These schemes were justified on the basis that the immigrants of certain races, colours, or ethnic or national origins were considered unable to assimilate to Canada’s climate and society and to be better-suited for ‘unfree’ and low-skilled work.”

When migrants on closed work permits are terminated, they lose legal status in Canada and must secure another employer with authorization by Employment and Social Development Canada to hire foreign workers.

That process can be “lengthy, difficult, costly, and most importantly highly unpredictable” as the person may risk being denied a new work permit, the lawsuit claims. It can result in the worker being prohibited from working and making a living for an indeterminate period of time.

The plaintiffs said the harmful impacts of those measures are widely known and well-documented, including:

Restricting workers’ capacity to resign and make choices concerning their work and livelihood in Canada;

Limiting their freedom of movement;

Impeding their ability to assert their rights and access help.

“The employer-tied workers’ inability to change employers creates a striking power imbalance in favour of the employer, making migrant workers uniquely vulnerable,” the lawsuit argues.

“These harmful impacts are compounded when temporary foreign workers work in remote locations, reside in employer-provided accommodation or live in their employer’s own home.”

In the lead case, the Guatemalan man obtained his first “closed” work permit valid from 2014 to 2016. The lawsuit claims he had to work between 7 p.m. and 7 a.m., Monday to Friday, with only three 10-minute breaks per night, and was required to catch up to 40,000 chickens per shift, at a rate of five in each hand for every catch.

A.B. would get $3.75 per thousand chickens and $12 for the same number of turkeys. His Canadian co-workers, however, would be paid double these rates, the lawsuit alleges.

A.B. would go to bed with rips and tears on the skin of his hands and with sore muscles. When he woke up, he was often unable to extend his hands, which would remain contracted and curled in a “catching” position.

“As a result of his ‘closed’ work permit, A.B. had no choice but to endure this treatment,” he said in his claim. “He feared that complaining could lead to being fired, threatening his status in Canada, his ability to obtain a renewal of his permit.”

After a work injury in 2015, A.B. required leave from work. His contract was not renewed and he returned to Guatemala, where he underwent an MRI and found out he suffered a herniated disc.

He found another job at a family dairy farm in Quebec in 2017 and worked there until 2019, on three yearly closed work permits.

There, he claimed he was paid late, sometimes by weeks, and subjected to the employer’s “aggressive behaviour, homophobic and racial slurs, rants against the incompetence of migrant workers, and humiliating and degrading comments.” An accident in 2019 aggravated his previous work injury, and he was dismissed.

From 2020 to 2022, A.B. worked for another dairy farm — on two more “closed” permits, where he claimed he suffered similar abuse.

“The Government of Canada has not ceased to resort to employer-tying measures. It has instead continued to subject a growing number of temporary foreign workers to those measures — and it still continues to do so today,” the lawsuit said.

“The Government of Canada’s failure to put an end to those measures evidences its continued clear disregard for the employer-tied migrant workers’ Charter rights and human dignity.”

Source: Ottawa faces class action alleging rules around migrant workers are discriminatory