A class-action lawsuit has been launched against the Government of Canada for violating migrant domestic workers’ and farm workers’ Charter Rights under the closed work permit, the Toronto Star is reporting.
“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 Eugenie Depatie-Pelletier, who is the executive director of the Association for the Rights of Household and Farm Workers (DTMF), which filed the case on behalf of holders of closed work permits.
“It’s time to put an end to non-free work, a system that treats the workers as the quasi-property of her employer.”
The man leading the lawsuit in question – identified in court documents only as A.B. – moved to Canada in 2014, after arranging for $3,000 to pay for a job offer in poultry catching from his employer.
His next nine years in the country would be spent on six separate closed work permits, allowing him to work only for his sponsoring employers despite “exploitative conditions and treatment.”
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In other words, he was bound to his job to maintain his immigration status in Canada.
Unlike an “open” work permit, a “closed” work permit (also known as an “employer-specific work permit”) can only operate based on the specific conditions applied to the work permit. For example, someone may be able to work for only a specific employer.
Migrant workers in low-wage, low-skill jobs are generally provided with closed work permits, and resultantly have certain restrictions placed on their professional flexibility.
The lawsuit alleges that such “employer-tying measures” are discriminatory towards people of certain racial, national, or ethnic origin and color.
“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 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.”
If a migrant on a closed work permit loses their employment with their employer in Canada, they also lose legal status to work in Canada until they secure another employer with authorization by Employment and Social Development Canada to hire foreign workers.
As the lawsuit claims – and as reported by the Star – the process can be “lengthy, difficult, costly, and most importantly highly unpredictable” as the person may be denied a new work permit. That may prevent them from being able to work for an indeterminate period of time.
The Confederation des syndicats nationaux (CSN) and the Federation des travailleurs et travailleuses du Quebec (FTQ) support the association’s initiative for recognizing the closed work permit as unconstitutional, as it puts workers in a vulnerable position and dependent on their employer.
“Even if they have rights on paper, there is always the fear of [workers] being sent back to their country. There are always threats from employers. They are afraid of reprisals,” said CSN vice-president Katia Lelièvre, as reported by CTV News.
The plaintiffs in the case are requesting that the court declare the provisions of the immigration law that allows such practice unconstitutional, along with awarding damages to those migrant workers who have been subject to “employer-tying measures” on or after April 17, 1982, when the Charter of Rights and Freedoms actually became effective.
They said that the harmful effects of the measures include:
- 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 says.
“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.”
Hailing from Guatemala, A.B. – who is the leading case in the lawsuit – obtained his first closed work permit from 2014 to 2016, during which time he claims to have been working from 7 p.m. to 7 a.m., Monday to Friday, and with only three 10-minute breaks per night. He was required to catch 40,000 chickens per shift – with five in each hand – and was paid $3.75 per thousand chickens and $12 per thousand turkeys.
He alleges that his Canadian counterparts were paid twice his salary, while he was forced to endure abusive treatment as a result of his closed work permit.
When he left his job due to a work-related injury in 2015, his contract was not renewed and he returned to Guatemala. There, an MRI revealed that he was suffering from a herniated disc problem.
He found a dairy farm job in 2017 in Quebec but was subjected to inhumane work conditions for the next two years. He was laid off after an accident in 2019, after which he obtained two more closed work permits from 2020 to 2022 to work in another dairy farm. The abuse was yet again repeated.
The lawsuit flags instances such as this by saying that “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 Government of Canada’s failure to put an end to those measures evidences its continued disregard for the employer-tied migrant workers’ Charter rights and human dignity.”
On September 6, after a two-week visit to Canada, the UN Special Rapporteur on Contemporary Forms of Slavery, Tomoya Obokata, said that the closed work permit is almost a form of modern slavery “as they cannot denounce abuses suffered without fear of deportation.”