To help fill its job market needs, Canada offers a series of visas accessible to foreigners, should they meet various conditions. As a result, thousands of foreign nationals go through the tiresome administrative process with the Immigration, Refugees and Citizenship Canada each year. However, simply being granted access to Canada’s job market does not always result in a positive outcome, as many individuals report experiencing abuse and/or exploitation on the job. This week’s blog post analyzes some of the systemic elements of Canadian foreign worker and student visa programs that put newcomers at risk of exploitation. This post is meant to provide a general overview of the risks of exploitation linked to work visas and is not meant to cover each visa category individually.
Risk of exploitation linked to the Visa Application Process
Those who want to work in Canada, regardless of the type of work they wish to pursue, must first apply for a particular visa. As this process is usually done from their home country, individuals aren’t aware that they may already be exposing themselves to potential exploitation once they arrive in Canada. Some may have already been approached by predatory recruitment firms in their home country and depending on the visa they are applying for, they may not be aware of their rights once they arrive in Canada.
Some visas have an administration cost that needs to be paid by the foreign worker or the employer. However, foreign workers who are unfamiliar with the rules in Canada could be illegally asked to reimburse any fee supported by the employer linked to the application process or travel arrangement. For example, foreign workers could find themselves forced to reimburse fees linked to a Labour Market Impact Assessment (upwards of $1000 Canadian per employer), which is asked of employers for certain visa types to prove that no Canadian was available to fill the labour shortage. Other visas, such as visas under the Agricultural Streams, require the employer to cover the costs of transportation to Canada. While illegal, some employers force workers to reimburse travel and accommodation fees.
Situations where workers find themselves indebted from day one can also arise if an unscrupulous employer fills out the application forms themselves and withholds information. This limits the workers’ knowledge of their rights once they are in Canada. For example, individuals working under the Home Child Care Provider Pilot program may find that they are unaware of the employment conditions and employment rights if the employer completes the application themselves, putting the worker at risk of manipulation, abuse and/or exploitation.
A closer look at the Home Child Care Provider Pilot visa program also shows how the conditions that individuals need to meet to apply for a visa could put the worker at risk of abuse. For example, individuals holding a Home Child Care Provider Pilot visa can secure Permanent Residence after working for 24 months as a child care provider. As Permanent Residency is often the first step towards obtaining Canadian citizenship, child care providers may be more tolerant of abuse or exploitation in the workplace as they recognize leaving their current employer might put the 24-month probation period in jeopardy, especially if they foresee difficulties in securing new employment.
Recently, the Canadian government put in place an exploitation relief measure for workers facing abuse in their employment situation in Canada in the form of an Open Work Permit for Vulnerable Workers. However, applying for such a visa can be quite challenging for exploited workers as they could fear reprisal from their employers, they may be unaware of how to report abuse, they may lack access to the internet and translation services to submit their application or be scared to reach to authorities for fear of being deported, among others. To qualify for this exploitation relief measure, the onus is on the worker to adequately prove the abuse, exploitation or unsafe working environment.
Finally, it is important to mention that risks of exploitation also arise if a visa is denied when the applicant is already on Canadian soil. For example, refugee claimants can apply for an open work permit if they also make a refugee claim. However, if their application is denied and if they are unable to successfully appeal this decision, the undocumented nature of their status in Canada can limit their employment options and the workers perception of their own access to legal recourse under the law. This can make undocumented persons more dependant on their employer and sadly this is something that employers may use to their advantage.
Risk of exploitation while working in Canada
Once a visa has been approved and the worker arrives in Canada, they are allowed to legally work in the country. For some, this also means that they may experience abuse and exploitation at this point in the process. This can occur in two primary ways.
Just like the application process, workers may find themselves illegally indebted to their employers for costs accumulated during their employment. For example, as stated in the requirements of the visa, the cost of health insurance, housing, transportation from and to the workplace, workplace safety insurance, and protective equipment (if applicable) have to be covered by the employer for the Low-Wage Stream Visas, among others. Some employers could use that lack of awareness of the visa provisions and employment rights to force the workers to recover these costs.
One of the factors contributing to migrant worker exploitation in Canada arises with the continued use of closed work permits, as they can lead to a power imbalance between the employer and the worker. Closed work permits are the norm for agricultural workers, but they are also used by “highly-skilled” workers under the Francophone mobility visa, for example. While open work permits allow an individual to more easily change employers, closed work permits are linked to a specific employer. That’s why workers could feel forced to comply with abuse and exploitation, as non-compliance could lead to the termination of their contract, being blacklisted by other employers in that sector, or being forced to return to their country of origin. Examples of abuse linked to closed work permits include, but are not limited to: working for low or no wages, undertaking tasks outside the scope of the employment contract, not receiving vacation pay, being forced to work more hours or days than cited in the LMIA, inadequate accommodation arrangements, inconsistent working conditions, unsafe working conditions and lack of personal protective equipment, harassment/ abuse/punishment/retribution for speaking out, and incomplete information on rights as an employee.
Finally, individuals holding an international student visa are also at risk when it comes to exploitation, as they are allowed to work under some conditions, such as a limited number of hours at a particular location. However, they could find themselves at risk of abuse as some employers manipulate them and force them to work beyond what is legally allowed while threatening the students that reporting such practice could have them removed from the country, for example.
Language barriers
Foreign nationals coming to Canada to work may not have mastery of either English or French. This can raise issues during the application process, but also during the employment term as there is already a power imbalance between the employer and the worker(s) from the outset. Some migrant workers are unable to read and write in French and English, and many report not understanding the terms of the employment contract that is printed in English or French. The language barrier can have serious impacts on workers in the Seasonal Agricultural Worker Program. Under the rules of this program, a worker can be transferred from one farm to another if the employer has the worker’s consent. However, one can imagine the challenges that exist with obtaining informed consent with such a significant language barrier.
Conclusion
From the examples mentioned above, it has become clear that foreign nationals coming to work in Canada can be at risk of exploitation, depending on the visa they are applying for. Language and cultural barriers, the stringent requirements to access a visa and the type of visa issued can unfortunately create an environment where exploitation can flourish.
Eliminating closed work permits in favour of open permits, making all documents available in the worker’s first language and informing every worker coming to Canada of their rights, in addition to ensuring all temporary workers are given access to adequate legal advice, are all solutions that could be put in place to potentially limit the risk of exploitation and abuse of foreign workers in Canada. The Canadian Government should look to work collaboratively with the governments of the source countries who send largest numbers of their citizens to Canada, to ensure workers are aware of their rights and protections before coming to Canada or signing employment contracts.
The Centre would like to thank Seema Sidhu and Erin Bertens, law students from respectively University of Toronto and Osgoode and Pro-Bono Students Canada, whose research and critical analysis of the different visa types offered in Canada inspired the creation of this blog post.