Quebec court greenlights temporary foreign worker class action on closed permits

Quebec Superior Court has authorized a class-action lawsuit on behalf temporary foreign workers seeking to sue the federal government over closed work permits that bind foreign workers to a specific employer. A migrant worker, right, chats with a passerby as they demonstrate in Montreal on Tuesday, July 20, 2021.(The Canadian Press/Paul Chiasson)

Quebec's Superior Court has authorized a class-action lawsuit involving temporary foreign workers who are suing the federal government over work permits that bind them to an employer.

The lawsuit, launched in 2023 by the Montreal-based Association for the Rights of Household and Farm Workers, alleges closed work permits violate Charter rights pertaining to life, liberty and security of the person, and equality.

On Friday, Quebec Superior Court Justice Silvana Conte greenlit the lawsuit, whose members include any foreign national issued a work permit in Canada after April 17, 1982, that was tied to a specific employer.

"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.

The action seeks damages for members, and a declaration that sections of the Immigration and Refugee Protection Regulations are unconstitutional.

Byron Alfredo Acevedo Tobar from Guatemala, a farm worker and lead plaintiff in the case, alleges abusive treatment while working under a closed permit with three separate employers between 2014 and 2022. He claims to have been subject to psychological abuse and harassment, and was overworked. He also says he was not properly trained, lacked equipment and was underpaid.

Closed work permits are generally given to migrant workers in low-skilled jobs, tying them to a specific employer or group of employers. If workers are fired then they can be deported from Canada, a rule that critics say encourages abuse.

In response to the lawsuit, lawyers for the federal government argued that Acevedo Tobar's experience is uncommon, and that he couldn't properly represent class action members. They also sought to limit the class to workers in the agriculture and caregiver fields.

The government's legal team also wanted to reduce the eligibility period for prospective members of the class — to workers who received permits no earlier than 2017. Applicants however, wanted the class to extend back to 1982 — the year Canada's Charter of Rights and Freedoms entered into effect. Conte said the final window in which class members can be included will be decided at a later date.

Last September, a United Nations special rapporteur described Canada's temporary foreign worker program as a “breeding ground for contemporary forms of slavery.” Tomoya Obokata said after a 14-day visit to Canada that the closed work permit system leaves foreign workers vulnerable "as they cannot report abuses without fear of deportation."

Obokata repeated those comments in a final report as special rapporteur published in August 2024, citing issues including wage theft, difficulties accessing health care, long working hours with limited breaks and insufficient personal protective equipment. The report also notes allegations of sexual harassment and exploitation, along with physical, emotional and verbal abuse.

The number of permits under the program increased 88 per cent from 2019 to 2023, though Ottawa recently said it plans to reduce the number of such workers in Canada.

The class action has garnered support from Quebec's traditional labour unions like the Confederation of National Trade Unions (CSN) and the Quebec Federation of Labour, which acknowledge that while workers have rights on paper, they live under fear of reprisals because of the power imbalance created by closed permits.

Immigration, Refugees, and Citizenship Canada said Monday it was unable to comment as the matter is before the courts. The attorney general's office will have 30 days to decide whether to appeal the ruling.

This report by The Canadian Press was first published Sept. 16, 2024.