Quebec Judge Certifies Ridiculous Class-action Lawsuit Against Closed Work Permits

A Quebec Superior Court judge has certified a lawsuit on ridiculous grounds that, in my opinion, amount to an embarrassment for Canada. In a nutshell, the Superior Court Justice Silvana Conte has certified a lawsuit on the grounds that “closed” work permits, meaning work permits that are limited to a single employer, amount to a violation of the Canadian Charter of Rights and Freedoms, specifically that closed work permits amount to discrimination based on race, national, or ethnic origin and colour. At first glance, this looks like the dark clouds of Critical Race Theory penetrating and distorting sound legal analysis.

The main points of the class-action lawsuit are as follows:

1. A Quebec court has certified a class-action lawsuit challenging part of Canada’s temporary foreign worker program as unconstitutional.
2. The lawsuit alleges that the closed work permit system, in place since 1966, is discriminatory and violates the Canadian Charter of Rights and Freedoms.
3. The main issue is that closed work permits restrict migrant workers to working only for their sponsoring employers, which the plaintiffs argue creates a power imbalance and potential for abuse.
4. The lead plaintiff, Byron Alfredo Acevedo Tobar, a Guatemalan worker, claims he experienced poor working conditions and feared complaining due to the risk of losing his job and immigration status.
5. The lawsuit argues that the employer-tying measures violate workers’ rights to liberty, life, security, and equality based on national or ethnic origin, race, and color.
6. The court rejected the government’s arguments to limit the scope of the class action, allowing it to potentially cover all temporary foreign workers with closed work permits since 1982.
7. The case highlights ongoing criticism of Canada’s temporary foreign worker program, including a recent UN report calling it a “breeding ground for contemporary forms of slavery.”
8. If successful, the lawsuit could lead to significant changes in how Canada manages its temporary foreign worker program, particularly regarding work permit restrictions.

The well-documented abuse of migrant and agricultural low-wage temporary foreign workers from the Caribbean and other smaller nations is undisputed. These workers sometimes face inhumane and brutal conditions in Canada. However, it is misguided to suggest, even at a preliminary level, that a closed work permit might breach the Charter. Closed work permits, where applicants are allowed to come to Canada to work for a single, named, and sponsoring employer, are a cornerstone of any functional work permit regime. The Judge seems to have forgotten that Canada allows foreign workers into Canada, not primarily for the foreign national’s benefit, but for the benefit of the Canadian employer who needs a job done and could not find a suitable Canadian to hire. If all work permits were open, how could Canadian employers protect themselves from workers they spend the time, effort, and money to sponsor and train? Workers on open work permits can decide to switch employers at the drop of a hat, creating obvious and unacceptable uncertainty and financial loss for employers who sometimes wait an average of 6, 8, to 12 months to obtain work permit approvals. There is nothing unconstitutional about closed work permits. In fact, every country in the world operates with closed work permits (along with certain categories of open work permits, where it makes sense, such as Canada’s post-graduate open work permit, youth open work permits, and spousal open work permits). Canada already has a strong grasp of when it is appropriate to have closed vs. open work permits and immigration pathways exist for both circumstances.

As a law firm that works with hundreds of Canadian employers, we know step-by-step the massive effort, time, goodwill, and money Canadian employers have to expend in order to finally get a work permit for a valued foreign worker. If closed work permits are deemed unconstitutional simply by virtue of them being closed, then our work permit regime will collapse at full speed, since no employer in their right mind will make the effort to sponsor a foreign national who can walk away the next day or demand an unreasonable wage increase for them to stay.

The Federal Government already proposed limiting the scope of the lawsuit to the agricultural and caregiver worker streams (streams that historically have high levels of worker abuse), but Justice Conte refused to limit its scope.

The solution, of course, is to increase the strictures on agricultural, migrant, and caregiver streams. Laws that protect those workers already include the right to housing, the right to work free from abuse (including withholding of passports), and hotlines for workers to report abuse. Mechanisms already exist for Seasonal Agricultural Worker Program (SWAP) workers to switch employers without having to go through a brand new work permit application process. Ontario is working on its own legislation to further protect the rights of workers, including foreign agricultural workers.

As stated, the problem of abuse of agricultural foreign workers is well-known and governments have already introduced laws to reduce and penalize abuse. It is likely those protections need to be enhanced and strengthened, which is welcomed. But to certify a lawsuit that claims all closed work permits amount to a violation of the Charter is throwing the baby out with the bathwater in a most irrational way. Actually, it is worse than the analogy suggests. Disallowing closed work permits makes zero legal, economic, and, I would argue, common sense and is a direct threat to the Canadian economy. We can only hope that logic and sound legal reasoning prevail and that the Federal government wins this misguided and dangerous lawsuit.

It’s worth noting that the Trudeau government, with its incessant preaching on DEI, Critical Race Theory, and other woke-based grievances wasted no time objecting to the lawsuit. It’s clear their philosophical positions have come back to haunt them through the mind of Justice Conte, the plaintiff, and his enabler, the Montreal-based Association for the Rights of Household and Farm Workers.

This is one of the few instances where I genuinely hope the Immigration department prevails.