Workplace Wire

Connecting employers to developments in labour, employment & pension law

Foreign Workers and the Law: Class Action Approval a Warning Shot to Employers


As I have written about in previous blogs, the number of temporary foreign workers in Canada continues to skyrocket.  Growth of this category of foreigners has been large and consistent so that the number of temporary foreign workers in Canada now confidently outstrips the number of new permanent residents allowed into the country each year.

Until relatively recently, this category of workers had received little if any attention.  The fact however is that temporary foreign workers represent the largest source of foreign labour in Canada, one which employers in Canada are becoming increasingly dependant.

With such large numbers, courts across the country are increasingly being faced with employment-related cases for temporary foreign workers.  One example is a recent decision of the British Columbia Supreme Court in Dominguez v. Northland Properties Corporation, 2012 BCSC 328 (CanLII).  

The case is particularly noteworthy because it resulted in the certification of a class action lawsuit brought forward on behalf of a large number of temporary foreign workers who have made several allegations, including that their employer broke the terms of their contract and dealt with them in bad faith. 

The class action was initially brought forward by a Philippine temporary foreign worker, and subsequently, 75 of her co-workers who, like the initial plaintiff, were all temporary foreign workers.  All of these employees came to Canada to work for the same employer under Citizenship and Immigration Canada’s Temporary Foreign Worker Program.

The plaintiff claims that she and the other employees included in the suit were given fewer hours than promised. She further states that when she complained to her manager, the employer cut back her hours further.  The plaintiff further claims that she was paid improperly, including not being paid for overtime hours.  The plaintiff also states that she was not paid for her return airfare, something which she alleges was promised to her and that the recruitment agency which arranged for her transfer to Canada overcharged her.   

In allowing the class action to proceed, the court accepted that the claims brought forward by the plaintiffs were sufficiently common in nature.  The court also found that the award of any damages, including any punitive damages, could be assessed on a group basis. The court was also convinced that the relevant issues were of common interest including whether a fiduciary relationship existed between the employer and the temporary foreign workers, the status of the agency relationship between the defendant and the recruitment agency, as well as the interpretation of the standard contractual terms. 

The court also found commonality among the plaintiffs with respect to the context leading to the action, specifically finding that all of the employees involved were in an equally vulnerable situation and that their claims regarding being taken advantage of were sufficiently similar in nature. 

The court also found commonality among claims relating to an alleged fiduciary relationship between the employer and workers because of what the court viewed as a shared experience among the temporary foreign workers concerned.  The court also accepted commonality of claims relating to good faith as it related to the terms of the contractual relationship.  The court also found that claims relating to unjust enrichment and improper record keeping with respect to hours of work could also be determined on a group basis.

In making its finding, the court also held that allowing a class action in the circumstances would positively contribute to access to justice for the litigants involved.  The court also found that alternative avenues of redress, such as through enforcement mechanisms under the Employment Standards Act, were inferior to the class action process, not least because it would not address all issues raised.  The court also recognized that the grouping together of several relatively low value claims would allow for greater efficiencies in the administration of justice.

What does this mean?

This case is important for two main reasons.  First, it serves as an important reminder of increasing court tolerance of class action lawsuits for employment-related matters.  Specifically, courts appear willing to be generous in finding commonalities in order to group together what may on an individual basis represent clams of relatively low value.  Second, the case serves as a clear sign of the increasing exposure which employers face with respect to issues relating to temporary foreign workers.  Specifically, as the number of temporary foreign workers increases, so does the importance of ensuring that processes are in place to reduce the unique challenges and risks which this type of employment relationship presents.    

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