On March 5, 2012, the British Columbia Supreme Court certified a class action lawsuit involving current and former temporary foreign workers for Denny’s Restaurants in the case of Dominguez v. Northland Properties Corporation, 2012 BCSC 328 (CanLII). There are approximately 70-75 putative class members; the majority of them are believed to be recruited from the Philippines. Each member is claiming $10,000 to $20,000 in damages.
The plaintiffs are alleging that the defendants failed to honour terms under their employment contract and Labour Market Opinion (LMO), failed to pay overtime, and failed to reimburse them for expenses relating to their employment, such as return airfare and recruitment fees. This lawsuit is the first of its kind, as the plaintiffs are also alleging that the defendants had “systematically taken advantage of those employees as a vulnerable or disadvantaged group” (at para. 5).
This is a big victory for temporary foreign workers. The class action highlights many of the systemic abuses that temporary foreign workers experience in the workforce, and will also improve their access to justice in this matter. As Madam Justice Fitzpatrick wrote in her decision:
“A class proceeding will substantially advance this litigation in terms of an overall resolution of the common issues which addresses the need for judicial economy in its approach. In addition, recognizing the vulnerable situation in which these temporary workers find themselves, a class proceeding will provide the access to justice that they require in an environment that will be of assistance to them. Finally, behaviour modification is no doubt required if these claims are ultimately proven. One allegation, that relating to the airfare issue, has already been conceded by the defendants and to that extent, the proceedings are promoting that objective in the preliminary stages. It bears repeating that the investigations by the Employment Standards Branch in late 2010 and early 2011 had little effect on the practices of the defendants regarding payment of overtime and despite efforts to ensure that overtime was being properly paid, further breaches were recorded which resulted in a Determination on June 17, 2011 with penalties.” (at para. 263).
The success of this lawsuit would likely have an enormous impact on the large amount of temporary foreign workers living in Canada, a number that continues to increase on a yearly basis. On average, the number of temporary foreign workers in Canada has increased over the past several years. Citizenship and Immigration Canada reports that there were 300,111 temporary foreign workers present in Canada on December 1, 2011. In 2007, there were only 199,165.
In Alberta, however, 2009 boasted the highest number of temporary foreign workers present at 65,618. The number of temporary foreign workers declined in 2010, but has increased again for 2011 at 58,228. According to Statistics Canada’s current projected population clock for Alberta, this means that approximately one in every 66 people living in Alberta right now is a temporary foreign worker.
Temporary foreign workers in Alberta are frequently subjected to the same abuse and workplace violations as alleged in the Dominguez case. Because their work permits mandate the exact position, location, and employer for which they are to work, temporary foreign workers are unable to switch jobs easily and will tolerate these abuses to remain employed. In order to change employers, the temporary foreign worker would first have to find a new employer, the employer must apply for a LMO for the worker, and then the worker would apply for a new work permit. Lengthy processing times add stress to the situation and increase the unlikelihood of the temporary foreign worker switching employers. In 2007, the Alberta Federation of Labour (AFL) released a troubling report on the effects of the temporary foreign worker program in Alberta. The AFL released a follow-up report in 2009 that criticized the government for doing little to change the living and working conditions of temporary foreign workers.
Some of the major concerns of temporary foreign workers are employment standards violations, unsafe working conditions, sub-standard housing, the restrictive nature of their work permits, and the lack of opportunity for permanent residency, particularly for low-skilled temporary foreign workers. For example, even though Alberta has a high number of temporary foreign workers in the province, there are only 5,000 spots available through the Alberta Immigrant Nominee Program, which is a federal program that allows employers within the province to nominate employees for permanent residency. If a temporary foreign worker wants to become a permanent resident but cannot secure a coveted provincial nominee spot, she must go through an individual-driven process such as Canadian Experience Class or Skilled Worker.
A study conducted by Delphine Nakache and Paula J. Kinoshita for the Institute for Research on Public Policy indicates that the temporary foreign worker program is short-sighted and not adequate to address Canada’s long-term labour needs, and “is unfair to the vast majority of temporary foreign workers, who are expected to spend years in Canada without contributing to society in the long run” (at 1).
There is, however, a flurry of proposed and approved changes on the horizon. A spokesperson in the office of Human Resources Minister Diane Finley indicated that the federal government may be implementing changes to the program in the next few months. One of these changes indicated in the federal budget released on March 29, 2012 is to require employers to advertise a position more thoroughly for a local candidate before they are able to offer the job to a foreign worker. The federal government will also allow for information-sharing between regulatory bodies with respect to information obtained about immigration consultants who contravene their ethical and professional obligations.
The government of Alberta has also announced changes: new rules will be implemented to curtail illegal recruitment of temporary foreign workers, which includes requiring recruitment agencies to keep full records and register their agencies. This is designed to protect temporary foreign workers from unscrupulous recruitment activities.
Not all changes will result in ameliorating the situation of the employee. Further new rules will allow for faster processing of LMOs for highly skilled workers while simultaneously allowing employers to pay up to fifteen percent less than the average wage. These changes will result in a win for businesses, but it remains unclear how it will actually benefit the employee. These changes are currently limited to highly skilled workers, but the new rules will likely be expanded to all temporary foreign workers in the future.
While the full impact of the changes may be dubious, they will certainly not be enough to prevent the abuses suffered by temporary foreign workers. With current immigration policies, temporary foreign workers have little flexibility or control over their employment situation when they come to Canada. An option that has been proposed by the Standing Committee on Citizenship and Immigration and endorsed in Nakache and Kinoshita’s study is to issue work permits that are sector and province specific, rather than position and employer specific, so that temporary foreign workers are able to easily switch employers if they are suffering abuses. Other proposed solutions are to improve monitoring of employers and employment agencies, and to increase enforcement against those who violate employment standards, fair trade, or immigration legislation with respect to temporary foreign workers.