Your gateway to Canada

By Attorney Henry Moyal

NEW LEGISLATION FAILS TO PROTECT FOREIGN WORKERS

It was announced last week that the Canadian government is introducing legislation to protect foreign workers from exploitation and abuse. The changes will permit immigration officials to deny work permits to caregivers who they feel will be victimized in Canada. Hoping to prevent abuse before it happens, the amendments to the Immigration and Refugee Protection Act gives the power to immigration officers at the airport/land borders to refuse to issue work permits to nannies if the officer believes that the worker will be exploited. While it sounds good in theory, in my opinion, it perhaps gives too much power to officers and more importantly, it punishes the wrong group of people. Denying the caregiver a work permit will not curb the abuse. Denying the caregiver a work permit only punishes the worker (by denying her the work permit and refusing her entry) and does nothing to punish Canadian recruiters and Canadian employers who may be exploiting foreign help.

It is all too common to hear stories of how caregivers pay thousands of dollars and wait months and months to get to Canada. Under the new rules, the officers can refuse to issue the work permit to the caregiver at the airport and send her/him back to the Philippines if the officer is of the view that she will exploited or the employer is not genuine. But who is suffering here? Only the worker! The worker has already paid the money to the recruiter and in the end the worker does not enter Canada while the recruiter is safe from harm in Canada. The law simply does nothing to protect exploitation.

However, it seems that border officials are using some of their ammunition to investigate fraud and misrepresentations made at the port of entry. In a recent case at the Ontario Court of Justice, R. v. Estipona (2009 ONCJ 263, Brampton Court File No. 004011, J.D. Karswick J.), the defendant Estipona was charged that on February 3, 2008, at Lester B. Pearson Airport, she did counsel, induce, aid, abet or attempt to counsel, induce, aid or abet Maria (real name withheld) to directly or indirectly misrepresent or withhold material facts relating to a relevant matter that induces or could induce an error in the administration of the Immigration and Refugee Protection Act, contrary to section 126 of the Act, and further that she did, directly or indirectly, misrepresent or withhold material facts relating to a relevant matter, that is, misrepresentation of facts surrounding an application or live-in caregiver program that induces or could induce an error in the administration of the Act contrary to section 127(a).

According to public records and the court decision of Justice J.D. KARSWICK J, the facts are as follows:

Mr. Brown ((real name withheld), as the employer, and Maria, as the employee, entered into a Live-In Caregiver Employment Contract, which was signed by Mr. Brown and Maria in 2007. On February 3, 2008, upon her arrival at the Lester B. Pearson Airport, Maria presented herself to a border securities officer. She produced the employment contract and advised that she was coming to Canada as a caregiver and that her cousin, Ms. Estipona, had found her a Canadian employer and that she had paid Ms. Estipona $1,000.00 to process the papers. The immigration official paged Ms. Estipona, and upon further discussions, he detected discrepancies in their statements. Upon interviewing Mr. Brown, the immigration official was informed that Mr. Brown was no longer in a position to hire a nanny. The immigration official refused to issue a work permit to Maria and instead telephoned the Criminal Investigation Unit. Ms. Estipona was arrested and charged with two offences.

With respect to the first charge of counseling, inducing, aiding or abetting Maria to violate the provisions of section 126 of the Act, the court found that Ms. Estipona knew that Mr. Brown was not a legitimate employer and that she informed Maria that he was not a legitimate employer, and that she entered into an illicit plan with Maria to withhold this material fact from the immigration authority, so that the immigration authorities would rely on a fraudulent contract and allow Maria to receive a work permit and to enter Canada.

Regarding the second charge, Ms. Estipona stated that she spoke to Mr. Brown about his holding himself out as the employer and that she promised to give him $1,000.00 and that it was she who filled out the application to the immigration authorities and that he then signed it. The most incriminating evidence of Ms. Estipona’s misrepresentation to the immigration authority was her admission that it was she who prepared that application. In the end, Ms. Estipona was found guilty of both charges.

The above case illustrates how far the live in caregiver has evolved. In its early days, the live in caregiver program was a quick way to enter the country for health care professionals and relatives. It was a lucrative business for agencies who travelled abroad to collect resumes to match them with Canadian employers. That has all changed. The exploitation of workers by Canadian employers and recruiters has now resulted in having immigration officials scrutinize every aspect of every work permit. It will be interesting to see what the next chapter will be…perhaps scrapping the whole program altogether.

Attorney Henry Moyal is a certified and licensed immigration lawyer in Toronto, Ontario. The above article is general advice only and is not intended to act as a legal document. Send questions to Attorney Moyal by fax, phone or email canada@moyal.com