It is hardly news that Canada has one of the most diverse populations in the world. A large part of the reason for this is the diversity of programs aimed at supporting the immigration of individuals from a wide range of countries across the globe.
While Canada’s population has traditionally grown through the intake of permanent residents, more recently, Canada’s population is growing through a combination of permanent residents and temporary workers (many of whom transition to permanent residency).
Specifically, more Canadian employers are benefiting from the range of skills that foreign workers are bringing to Canada. These might be workers who have just completed studies as international students, employer-sponsored foreign workers, or those recruited by specific provinces (through one of the provincial nomination programs).
With the growth of foreign workers, the courts have recognized that foreign workers can be vulnerable to abuse, often simply because their status may depend on one employer, and knowledge that they can be removed from Canada for a range of reasons (including any incident considered to be a criminal offence).
Courts are therefore increasingly holding employers to a higher standard when reviewing the treatment of foreign workers.
Vulnerability of Temporary Foreign Workers
Temporary foreign workers generally have more restrictions in terms of their employment when compared to Canadian citizens or permanent resident employees. This is because most work permits are employer-specific and do not grant general rights to work with any organization.
Not only will most foreign workers have their employment rights restricted to a specific employer, but they are also often further restricted to a specific occupation classification, in a specific location, and for a specific time period.
As such, temporary foreign workers whose employment is terminated can face significant barriers in their ability to obtain new employment, and the courts have generally recognized this vulnerability over time.
Given this, there are specific issues that relate to the termination of employment of foreign workers:
- Wrongful dismissal can be found as foreign workers may be entitled to longer notice periods: For example, in Nishina v. Azuma Foods (Canada) Co., Ltd. the court took notice of the fact that the employee’s immigration status in Canada was tied specifically to the employer. In this case, the court ordered the employer to provide the employee with a much longer notice period than would have been owed if the employee was not a foreign worker.
- Employers may be liable for punitive damages: In Mustaji v. Tjin, 1996 CanLII 1907 (BC CA) the British Columbia Court of Appeal found that an employer owed a fiduciary duty to a foreign worker whose employment was terminated. This demonstrates that an employer may be found liable for punitive damages far in excess of compensating an employee for wages.
- A foreign worker’s vulnerability can be considered by the court in a variety of breach scenarios: For example, in Dominguez v. Northland Properties Corporation, the court certified the first-class action to address the claims of temporary foreign workers who contended that a Canadian employer was liable for breaches of obligations/duties to them. The court specifically recognized that the temporary foreign workers, in this case, were in a vulnerable position given their immigration status and that the employer may have taken advantage of this status for their own benefit by ignoring various contractual terms on a systemic basis.
If you are a foreign worker who has had your employment terminated (or who feels that you have not been treated fairly and/or may be fired), or an employer ending the employment of a foreign worker, we strongly recommend consulting with an employment lawyer who has expertise relating in rights relating to foreign workers and termination, including wrongful dismissal. The lawyers at Sultan Lawyers practice both employment law and workplace immigration law and are here to serve you. For further information or inquiries please contact firstname.lastname@example.org.
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