Quebec's Superior Court authorizes class-action opposing 'clearly unconstitutional' closed work permits
Quebec's Superior Court has given the green light to the class-action lawsuit a Montreal-based workers' rights group filed against the federal government’s closed work permits rule under the Temporary Foreign Worker (TFW) Program.
On Friday, Quebec Superior Court Justice Silvana Conte gave the go signal to the case filed by the Association for the Rights of Household and Farm Workers (DTMF).
"The court finds that at this preliminary stage, while the threshold test is high, there is an arguable case that the employer-tying measures are 'clearly unconstitutional' giving rise to a claim for damages under the Charter," Conte wrote, according to the report.
The Montreal-based workers' rights group filed an application for a class-action case to ban closed work permits, which bind foreign workers to a specific employer, in September 2023.
Employer-tying measures “create a striking power imbalance between the foreign workers and their employers,” according to the association.
“If the relationship ends with the employer-sponsor (or group of employers-sponsors), the individual’s right to earn a living in Canada is immediately revoked. Employer(s)-tied household and farm workers are, therefore, extremely reluctant to resign or do anything that might jeopardize their employment relationship – including refusing unsafe work or [complaining] and [seeking] justice in case of a right violation.
“Facing a state sanction if they are fired or resign (the immediate revocation of their right to work in the country), employer-tied workers are, according to the North American jurisprudence, placed in a legal condition of servitude.”
In a report released in August, Tomoya Obokata, United Nations special rapporteur on contemporary forms of slavery, said that the TFW Program “serves as a breeding ground for contemporary forms of slavery, as it institutionalizes asymmetries of power that favour employers and prevent workers from exercising their rights.”
Overall, the number of positions approved to be filled by temporary foreign workers in 2023 stood at 239,646, more than double the 108,988 recorded in 2018, CBC previously reported, citing data from Employment and Social Development Canada (ESDC).
Who is covered by the class-action lawsuit?
The DTMF class action lawsuit seeks damages for members, and a declaration that sections of the Immigration and Refugee Protection Regulations are unconstitutional, according to the CBC report.
One point of contention is the number of workers included in the case.
The lawsuit claims members include any foreign national issued a work permit in Canada after April 17, 1982, that was tied to a specific employer, according to the report. That was the year Canada's Charter of Rights and Freedoms came into effect.
However, lawyers for the federal government wanted to reduce the eligibility period for prospective members of the class to workers who received permits no earlier than 2017.
Conte noted that the final window in which class members can be included will be decided at a later date, according to the report.
One report previously called on the Canadian government to grant permanent resident status for foreign workers upon their arrival in Canada.
