WITH THE CHANGING demographics and skill shortages in Canada many employers are forced to hire temporary foreign workers to fill positions that Canadians do not want or cannot fill. The problem is especially acute in northern BC and Alberta.

The federal and provincial governments are making it easier for employers to hire temporary foreign workers, especially in unskilled positions. Yet, employers are well advised to be careful in hiring foreign workers as the liability for failing to live up to statutory and contractual obligations can be significant.

Litigation involving temporary foreign workers is on the rise. In 2008 the company that built the RAV line brought in a number of foreign workers. Those workers filed complaints with the Human Rights Tribunal and, as well, sought union certification at the Labour Relations Board. By the time the dust settled Seli was ordered by the BC Human Rights Tribunal to pay many millions of dollars to the foreign workers. In addition, that litigation continues 4 years later with all sides spending enormous amounts on legal fees alone.

Recently, UFCW Local 1518 filed unfair labour practice complaints against the Mexican government, among others, alleging it had discriminated against Mexican workers who come to Canada pursuant to the federal Seasonal Agricultural Workers Program. The complaint against Mexico was dismissed by the LRB as it enjoys state immunity but the union’s unfair labour practice complaints continue to be litigated.

On March 5, 2012, the BC Supreme Court certified a class action lawsuit on behalf of current and former Denny’s Restaurant temporary foreign workers. The claim is for damages for alleged breaches of contract, breaches of good faith and fair dealing, breaches of fiduciary duties, unjust enrichment and punitive damages. Counsel for the workers claim $10 million in damages. It is important to note that the allegations have not been proven in court.

In her decision on the certification application, Dominguez v. Northland Properties Corporation, 2012 BCSC 328, Madam Justice Fitzpatrick at of the BC Supreme Court noted that a class action law suit:

…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.

The decision provides interesting insights as to the workings of the Temporary Foreign Worker program of the Federal Government administered by Human Resources and Skills Development Canada.

Employers who require temporary foreign workers need to be very cautious in ensuring that all statutory and contractual obligations with respect to the workers are fulfilled not only by the employer but also any agencies they retain to recruit the workers. If you are considering hiring foreign workers, you might want to contact me before finalizing your plans.

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    The content in the Michael Weiler Employment + Labour newsletters is for your general information and should not be taken as legal advice.  If you have a specific problem, please contact Mike Weiler to discuss your situation.