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Migrant workers fight back through courts, law reform advocacy

Friday, May 03, 2019 @ 12:39 PM | By Sarah Molyneaux

Sarah Molyneaux %>
Sarah Molyneaux
Migrant workers Maila Ceguerra, Lourdes dela Pena, Jesse Veneranda and Marisol Bobadilla have filed an Ontario small claims court action against recruitment agency Link4Staff Inc and their former employer Sharon Mushroom Farm. In addition to this civil action, Laxman Marsonia, the farm owner, faces human trafficking and misrepresentation-related charges under the Immigration and Refugee Protection Act.

Among other things, the workers allege that they paid $82,000 to the Link4Staff recruitment agency, which promised them work permits that never arrived. Once they started work, they allege improper deductions from their paycheques, long hours and poor living conditions.

Not content to leave it to the courts, the workers have started a petition calling on the Ontario government to do more to regulate recruiters and employers who hire migrant workers. The petition calls on the government to implement licensing for foreign recruitment agencies and the registration of employers seeking to recruit foreign workers.

It also asks that the province lobby the federal government to provide permanent residency status to migrant workers, something migrant workers and their allies have long been pushing for. If successful, it’s these efforts that are most likely to result in real changes for migrant workers in Ontario.

While other provinces have adopted a licensing or registration system to track the employment of migrant workers, Ontario hasn’t followed their lead. And, unless we know who employs and recruits migrant workers, the Ministry of Labour is ill-equipped to address issues unique to the migrant worker experience.

Migrant workers face unique challenges 

In 2017, nearly 100,000 temporary foreign workers were employed in Canada. Migrant workers are found in a broad range of Canadian industries, but most frequently work in positions characterized by their long hours, physical demands and low pay. This includes up to 24,000 seasonal agricultural worker program participants on farms across Ontario.

Although a Ministry spokesperson pointed to protections which already exist for migrant workers in Ontario in response to questions from The Globe and Mail on the issues raised in the Ceguerra claim, it’s obvious that existing formal legal protections are insufficient.

Although the Ceguerra claim doesn’t stand alone, the number of claims and prosecutions appears to be completely disproportionate to the high rate of abuse migrant workers experience. For many, low wages, excessive hours, unsafe working conditions and abusive treatment by employers and recruiters is just part of the Canadian work experience.

In spite of various reforms to the Occupational Health and Safety Act and the Employment Standards Act and the introduction of the Employment Protection for Foreign Nationals Act nearly a decade ago, migrant workers continue to hold well-founded fears about advocating for their rights at work.

One of the biggest barriers to improving the working lives of migrants is the lack of permanent or even long-term immigration status. While any worker may face illegal reprisal following a workplace complaint, migrant workers face even greater precarity than other low-wage workers. For migrants on “closed” employer-specific work permits, the loss of a job can mean the loss of ability to work legally in Canada.

Fired migrant workers face even greater exploitation in under-the-table working arrangements accepted out of desperation, deportation or the unwelcome gift of a ticket to their home country.

In addition to these risks, a migrant worker’s eligibility for provincial health care coverage is linked directly to their employment status: they lose coverage as soon as their visa expires, even if they are out of work due to a workplace injury or an unjust dismissal. From 2008 to 2018, 787 migrant farm workers were “repatriated” (i.e. sent to their home countries) for medical reasons, often citing exposure to chemicals on the job.

Unsurprisingly, migrant workers are reluctant to quit their jobs even if the environment is unsafe or otherwise abusive. They are equally reluctant to file lawsuits, Ministry of Labour complaints or seek help if their bosses don’t pay them properly or break the law. It’s certainly difficult to do so from another country.

Migrant workers’ vulnerability to abuse is exacerbated by the exclusion of agricultural workers from the Ontario Labour Relations Act. This leaves migrant workers unable to effectively unionize since they lack the protections that the Act offers other workers, including the ability to file an unfair labour practice complaint if they’re fired for organizing for workplace improvement.

While improvements to the substantive rights provided for by Ontario legislation, most importantly the extension of rights under the Labour Relations Act could make a difference in the working lives of some migrant workers, the workers’ petition hits the nail on the head.

The Ministry of Labour needs to identify the employers and recruiters who actively control migrants’ working conditions through a licensing and registration system. And they need to act on that knowledge through proactive enforcement measures, otherwise migrant workers’ rights are all but a legal fiction.

Sarah Molyneaux practises employment law, labour law, and human rights law at Molyneaux Law Professional Corporation. She can be found online at @Sarah_Molyneaux


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