Canadian Lawyer

B.C.'s legal community moving to protect foreign workers T he number of temporary foreign workers in B.C. is growing in nearly every field from construction to technology, but so are the complaints surrounding issues such as employment standards, human rights, and union concerns. B.C.'s legal community is taking steps to help employers and human resources professionals bring key employees into Canada. "Their main concern is how to bring in employees and what are the procedures," said Clark Wilson's Heather Hettiarachchi, adding those concerns spill into the work place right down to basics such as how to structure a severance package. The issues surrounding foreign workers have become larger. Hettiarachchi says, "We are watching very closely to see what is happening with the Chinese miners and the union." Two unions, the International Union of Operating Engineers, Local 115 and the Construction and Specialized Workers Union, Local 1611, have filed in Federal Court asking for a review of the federal government permit allowing HD Mining International Ltd. to bring in 200 temporary workers to its northern B.C. Murray River property near Tumbler Ridge. Access Pro Bono has been working with the immigrant organization MOSAIC since June 2011 providing legal advice to temporary workers. "There was a void," said Jamie Maclaren, executive director of Access Pro Bono. "There was no direct services offering legal advice to temporary foreign workers, only newly arrived permanent residents." Yet, temporary workers have many of the same needs but with limited community resources offering support in terms of education, social services, immigration, and understanding Canadian laws, said Maclaren. According to Maclaren, there are also several high-profile cases drawing attention to the plight of foreign workers. One was the 2008 B.C. Human Rights Tribunal ruling that found a group of Latin American workers, brought in to work on the Canada Line, were discriminated against when paid half of what European workers received. The tribunal ordered the two companies, SNC Lavalin and SELI Canada, to pay the difference plus $10,000 for injury to dignity to each of the three dozen workers. This year, the companies are taking the tribunal ruling to court for judicial review. A $10-million class action suit has also been filed against Denny's restaurants for alleged labour abuse of temporary foreign workers dating back to 2008. B.C. Public Interest Advocacy Centre lawyer Eugene Kung is representing four Mexican temporary foreign workers who have grievances against two Tim Hortons restaurants located in Dawson Creek, B.C. The workers allege Tony Van Den Bosch, a former owner who left the chain in mid-2012, referred to them in derogatory terms, claimed he owned their lives, double bunked their rooms, asked for increased rents, and regularly requested passports. Kung, who traveled to Mexico in December to interview workers, said via e-mail the number of temporary foreign workers coming into Canada has tripled over the past decade compared to the number that come in under a permanent residency program. "As our case illustrates, the power imbalance that is exacerbated by the TFWP puts workers in an extremely vulnerable position. Whatever checks and balances that are in place are not enough, as we are seeing many workers falling through the cracks," he said. "Since we launched our human rights complaint at the BCHRT, I have been overwhelmed by the number of workers and community members who have experienced or witnessed troubling treatment by employers from across Canada." Immigrations lawyer Richard Kurland has been leading the charge for reform in the program. B.C.'s government is not taking the necessary actions to mitigate the abuse of foreign workers, he said. "I Jamie Maclaren says there's been a 'void' in immigration law services. would like to see B.C. adopt the Quebec model for foreign workers. It would not be the federal government selecting foreign workers — it would be the B.C. government," he said, adding that provincially governments are in charge of labor and economic development. The provincial role would also place the question of foreign workers into direct consultation with local unions and First Nations' issues. The system Kurland sees involves the use of lawyers as a check to provide security to workers. He wants employers bringing in workers to pay a tax for each person brought in, with the funds going to finance a provincial ombudsman to oversee the program. Secondly, he wants a mandatory contract that outlines the expectations and duties of the various parties to be monitored by the corporation's lawyer, whose duty it would be to speak with foreign workers and ensure the contract requirements were being met. He sees the Law Society of B.C. also playing a role in ensuring that the reports of these lawyers reflect the true workplace conditions. Kurland also would like to see that when an employer receives a Labour Market Opinion (indicating that there is a shortage of a particular skill), that this document must be signed by a thirdparty such as a lawyer or an independent consultant in the field to verify it's a true representation. "And, in the end, it would provide a lot more work for lawyers," he said. —JS www.CANADIAN L a w ye r m a g . c o m F e b r uary 2013 11

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