The number of foreign workers in Canada has grown exponentially over the past decade. While the influx of skills that foreign workers bring has greatly benefitted the country, like any program it is at risk of abuse. Specifically, many foreign workers experience negative treatment by their Canadian employers. This seems to be occurring, at least in part, because some employers are taking advantage of the status of foreign workers, particularly those who are only permitted to work for the employer listed on their work permit.
Employment and immigration laws are therefore evolving to support this important and growing part of the labour market. This includes adjustments to employment standards legislation and related laws pertaining to safety in the workplace.
Most recently, Immigration Refugees and Citizenship Canada (“IRCC”) has been granted the authority to issue open work permits to temporary foreign workers holding an employer-specific work permit where it can be established that they are experiencing abuse or are at risk of abuse at the hands of their employer.
The Open Permit Application Process
For temporary foreign workers to apply for open work permits in relation to maltreatment at work, the temporary foreign worker must:
- be in Canada;
- hold a valid employer-specific work permit or have submitted a work permit extension application for the same employer and be in Canada on “implied status”. This means a temporary foreign worker is precluded from applying if the individual has already lost status, but are still within the 90-day restoration period stipulated by immigration laws; and
- be either experiencing abuse or at risk of experiencing abuse in the context of the individual’s employment as defined by immigration laws and regulations.
As part of the application, the temporary foreign worker will need to document/prove the abuse and/or demonstrate how their circumstances have caused them to fear future abuse.
If there are reasonable grounds to believe the temporary foreign worker is experiencing abuse or is at risk of abuse in the context of their employment in Canada, then IRCC will issue an open work permit valid for 12 months to the temporary foreign worker and their accompanying spouse (if applicable) in Canada.
Timing and Cost of the Application
If IRCC agrees that the circumstances justify granting a work permit, it should be processed within five (5) business days, free of charge.
Abuse is defined by IRCC to include physical, sexual, psychological or financial abuse. Below are some common examples of the four types of abuse:
- Physical Abuse: such as physical contact intended to cause feelings of intimidation, pain, injury, or other physical suffering or bodily harm.
- Sexual Abuse: including any situation in which force or a threat is used to obtain participation in unwanted sexual activity and coercing a person to engage in sex against their will.
- Psychological Abuse: including a pattern of coercive or controlling behaviour, iterated threats or both.
- Financial Abuse: generally involving one person who has control over the victim’s access to economic resources.
Will IRCC tell my employer?
IRCC’s operational guidelines do not currently include contacting the temporary foreign worker’s employer to verify the information submitted by the temporary foreign worker about the alleged abuse.
This is because the program is aimed at ensuring that individuals who are suffering from abuse (or who are at risk of employer abuse), do not experience an expansion of that risk and that they can move forward as quickly as possible.
Will my employer be punished?
The granting of an open work permit does not automatically lead to a finding that the employer is not in compliance with immigration laws. However, there is a good chance that the granting of an open work permit to a foreign worker in relation to abuse (or risk of abuse), could result in an onsite visit, followed by sanctions/penalties against an employer.
If you are a foreign worker who is experiencing abuse or you are concerned that you are at risk of experiencing abuse in the workplace, whether in relation to hiring, human rights, termination of employment and/or wrongful dismissal, contact Toronto employment lawyers Sultan Lawyers by calling 416-214-5111 or by email at firstname.lastname@example.org.
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