Workplace Wire

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Human Rights and Temporary Foreign Workers: Tribunal delays hearing to allow worker to sort out immigration status

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The number of temporary foreign workers in Canada has increased exponentially over the last 10 years, and in particular since 2006.  There are now over 250,000 foreigners entering Canada each year under a temporary work permit, and approximately half a million temporary foreign workers in the country at any given time.

As the Globe and Mail reported this past week, the number of foreign labourers in Canada has increased to the point where they now represent 1 in 50 workers across the country.

Unsurprisingly, as the number of temporary foreign workers increases, so does the number of disputes arising between temporary foreign workers and their employers.

Foreign workers however often face both unique and significant obstacles when pursuing claims against their current or former employers.  This is primarily because of the fact that foreign workers by definition have temporary status in Canada.  What this means is that most temporary workers who pursue claims against their employers face a real possibility that their status will expire before a decision on or resolution of their matter.  This means that a foreign worker who brings files a claim may not be present in Canada nor have the papers necessary to return to Canada to attend in person for a tribunal or court appearance.

These realities present a serious risk to maintaining access to justice, particularly given the sheer number of temporary foreign workers in Canada at present.

Courts and tribunals have accordingly begun to seriously address this problem.  A good example is the recent decision of the Ontario Human Rights Tribunal (the “Tribunal”) of Hazel v. 624091 Alberta Ltd., 2013 HRTO 435 (CanLII).  The case addresses a claim by a foreign worker who states that his employer discriminated against him on the basis of citizenship, disability, and race.  The employee, a citizen of Trinidad, was in Canada under a temporary worker permit granted by the federal government’s pilot project for occupations requiring low levels of formal training.  The worker states that his employer improperly provided him low wages, denied him health insurance, did not provide him with certain safety equipment, and ultimately terminated his employment shortly after he became injured.

The employee asked for the Tribunal to adjourn a scheduled hearing on the basis that he did not have status to travel to Canada.  The Tribunal’s normal practice is to require that all parties attend in person in order to be available to present their case and to be available for cross-examination.  Exceptions to the requirement are generally dealt with on a case-by-case basis.  The employer took the position that the matter should not be adjourned.  The Tribunal however allowed the adjournment in order to provide the former employee with an opportunity to apply for approval to come to Canada to attend at the Tribunal.

Why is this case important?

This case is important because it demonstrates that judicial and administrative bodies are willing to accommodate the immigration status of temporary foreign workers and former temporary workers.  It means that employers will not be able to rely on the fact that temporary workers will likely leave Canada to avoid potential liability.  To the contrary, employers are likely to see temporary workers pursue claims until they are heard by judges or other decision-makers.

This case is an important development, particularly given that employers are already under greater scrutiny by Canadian immigration authorities with respect to the manner in which they treat foreign workers.  Employers would accordingly be wise to ensure that they are familiar with all rules and regulations pertaining to the hiring of foreign workers and that they take proactive steps to reduce the chance of potential liabilities.

For more information, please contact the writer at [email protected] or at (+1)416-777-4175.

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