Law Times

Page 4 April 15, 2013 Law Times • NEWS Jurisdictional gaps add to worker vulnerability: report work isn't what's in their provincial elements of it work permits, says Faraday. have been treated in sepaThe gap created by rate files. It's time to see that the jurisdictional issue is these two jurisdictions are "a chasm the size of the overlapping in a very disGrand Canyon," she says. tinct way that creates a par"It's a strategic way in ticular kind of vulnerability which we exploit and utifor migrant workers. lize migrant workers." "The conditions of vulIn addition, immigranerability that are created tion laws make it difficult through the federal requirefor migrant farm workments . . . directly feed into ers to become permathe inability to enforce the nent residents even as the rights that are protected by government collects Emthe provincial jurisdiction. ployment Insurance preSo we can't have a system in which the jurisdictions 'We have enough information to act right miums from them while denying them benefits, put their hands up and say, now,' says Fay Faraday. says Naveen Mehta, gen'That's not my problem.'" Seasonal migrant workers have tied work eral counsel for the United Food and Compermits, says Faraday, that restrict their jobs mercial Workers Union Canada. "To me, that's theft." to a specific employer doing a precise type of A disgruntled worker can't simply quit work during a specified time period. "If one of those factors is out of line, the and find a new job, says Faraday, since worker is out of status and often that will hap- finding a new employer is a process that pen for reasons that are entirely beyond the takes several months and a new work perworker's control," says Faraday. Workers could mit. For many of these workers, their work lose their status by simply doing what their permits also require them to live on the employer tells them to do if that particular employer's property. Should they lose their BY YAMRI TADDESE Law Times O ntario's migrant workers are falling through the cracks created by a fragmented federal and provincial system that's failing to protect the most vulnerable employees, a new report by the Law Commission of Ontario suggests. In 47 recommendations, the law commission is urging the government of Ontario and the Ministry of Labour to uphold the basic employment rights of migrant workers who work in unsafe environments, earn low wages, and have little say over the conditions of their work. The problems facing migrant workers will require Queen's Park and Ottawa to work together, says Fay Faraday, a human rights lawyer who contributed to the law commission's report. The provincial Employment Standards Act exempts farm workers from many of the basic rights granted to other employees, such as a minimum wage, while federal immigration policies also restrict their mobility and increase their dependency on their employers, says Faraday. "One of the problems historically in this area is that the federal elements of it and the TOP AKERS NEWSMAND CASES C ION SURVEY COMPENSAT VILEGE LIMITS OF PRI July 2012 ENT A LAW TIMES SUPPLEM DECEMBER 2012 TUDENTS 4S $7.00 COUNSEL COUNSEL OUNSE COMPLAI NT Crown wasted $125K 11/22/12 3:29 PM SOCIAL ME DIA L AW TIM Khadr's ES lawyers no stran g P4 How to Legal du o have been in volved BY SIOB For Law T LELLAND hey are the nal defe two Torontobased crim nce only Can lawyers repr iesen Guantan adian still imp ting the amo Bay, risoned in a holding Their client, Om Cuba. ar Khadr, Minister pattern as he is stuc wait Canada Vic Toews to deci s for Public k in to complete Safety de year priso the rem on his retu and pub n sentence. 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Cohen funding "There's CBA's natio Rury, chairman spon- fund criminal legal a total com aid amental n of the nal crim tion, justice in to ensure mitment inal of ing told the council justice sec- try." our coun inflation that into acco after tak- to The CBA's atten unt, fede tion now Saskatoo ral n, which turns will host next See GI ORG ODED Financi ial dianlawyerm ag.com/4stu 1 dents INHOUSE vol.7 • issue 4 • 08.12 AM 12-06-13 11:13 AT THE INTERSECTION OF LAW & BUSINESS From left: Brian Hilbers, Av Maharaj, Nathalie Clark, Mark Adams, Veta T. Richardson, Megan Evans >> >> >> MIND THE DISCLOSURE GAP RE AP RE GAP LA LAW DEPARTMENT LAW DEPARTMENT AW EP MANAGEMENT: THE EVOLUTION OF THE EXTERNAL RELATIONSHIP SEVENTH ANNUAL INHOUSE/A SEVENTH ANNUAL IN OUSE/ACC VENTH VENT L INHO A INHOUSE/ACC OUNSEL ROUNDTABLE U E UNDTAB UNSEL UNDTAB UNDTAB NDT NDTAB NDTA NDTA DTA GENERAL COUNSEL ROUNDTABLE GENERAL COUNSEL ROUNDTABLE P 18 P18 P18 P.18 1 MANAGING MANAGING RIS RISK N-HOUSE OUS RISK IIN-HOUSE CANADIANLAWYERMAG.COM General counsel play a significant role in managing l l significant ma man managi g man ing an t e risk f the organizations they work for, and have ri ri organization the work for, and hav ga zation they work zation zation hey or atio ation tio io on o n have a av the risk of the organizations they work for, and have becom rusted advise becom rusted advis become trusted advise becom trust d advisers he process. become trusted advisers in the process. ec ecome rus ecom rust c ust s dv s dvisers dvis dvis vi process. process. ro s roc ss. become trusted advisers in the process. LAWTIMESNEWS.COM IH_August_12.indd 1 PUBLICATIONS MAIL AGREEMENT 40766500 PUBLICATIONS MAIL AGREEMENT ##40766500 La er Lawyer awy says 500 766500 ENT 40766500 E T GREEMENT # 4076650 I AGR MENT S MAIL AGREEM PUBLICATIONS MAIL 2012_Newsmakers.indd 1 g 20 ing 2012 ue 1 • Spr Vol. 7 • Iss CANADIANLAWYERMAG.COM/LEGALFEEDS EDS WeGotYouCover_LT_Mar4_13.indd 1 www.lawtimesnews.com 13-02-26 11:17 AM jobs, they become homeless, which adds to their vulnerability. It's a kind of dependency that creates fear of reprisal and keeps workers silent, according to Faraday. Workers must often return to their home countries whenever their employer decides they should leave, says Chris Ramsaroop, an organizer at Justicia for Migrant Workers. As a result, they don't have a chance to bring human rights claims or seek compensation for injuries they sustained on the job, he says. For these workers, the time between dismissal and a flight back home could be as little as 48 hours, Ramsaroop adds. It's a problem Toronto lawyer Andrew Lokan has seen as well. Lokan is representing farm workers in a dispute against their former employer, Tigchelaar Berry Farms. The workers are claiming their employer terminated them without telling them the reason for their dismissal and repatriation and have launched a challenge under the Charter of Rights and Freedoms. In March, the Superior Court dismissed their Charter claims but gave them 30 days to amend their application. "A seasonal agriculture worker can find himself . . . being told your job is over, you have nowhere to live, and here's the plane you're going to be flying on to Mexico or Jamaica," says Lokan, who suggests the law commission's recommendations "address the real needs of a very vulnerable population." Faraday, who last year authored a report on migrant workers, says the time to study the issue is over. "This report and the number of other reports that have preceded it have identified the need for urgent action on the rights of migrant workers. The question of why we haven't made the changes is a question of political will. We have enough information to act right now." Although some of the issues fall into different jurisdictions, both the provincial and federal governments have to show a commitment to addressing the issues, according to Faraday. The law commission report also recommends several changes to the Employment Standards Act, a piece of legislation it says "purports to legislate minimum employment standards but contains a multitude of special rules and exemptions." "In some cases, exceptions are occupation specific, where the ESA sets out differential treatment for certain categories of workers," the report states. Increasing proactive inspections of employers is the most important of the recommendations, says Faraday, adding that workers themselves aren't in the best position to file a claim. "You cannot rely on the weakest actor in the system to police compliance and that's the system that we have now." LT

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