Foreign Workers Program Challenged in Court

Restaurant owners have launched a court challenge against Ottawa in halting their applications to hire migrant workers and placing them on a blacklist.

By: Nicholas Keung Immigration reporter, Published on Thu Jul 24 2014

A husband and wife who own two chain restaurants in Labrador have launched a constitutional challenge against Ottawa’s move to keep them from hiring foreign workers and place their businesses on an online blacklist.

This is the first legal action against the federal government’s revamped temporary foreign workers program since new enforcement measures were brought in to tame public outrage over alleged abuse of the program by Canadian employers.

If the challenge is successful, the federal court could strike down the new measures — which include a ban on hiring foreign restaurant workers in areas with employment above 6 per cent — and force the government to reconfigure how it administers the controversial migrant workers’ program.

In 2013, Jeff and Miriam Staples, owners of Jungle Jim’s Restaurant and Greco Pizza franchises, had made five labour market opinion (LMO) applications to hire about 20 migrant workers. However, the three applications approved in October were suspended by Employment Minister Jason Kenney earlier this year.

Although the couple was notified of the suspension, they were not informed that Kenney also published their company names on his website.

“Canadian employers need certainty to enable them to order their affairs. That their LMOs may be suspended based on what may be an ever-changing version of public policy considerations is unfair, and leads to what the Supreme Court has termed a ‘standard-less sweep,’” they said in their claim, filed this week. Allegations in the claim have not been proven in court.

“In the result, employers do not know the standards that they are required to meet in order to avoid their LMOs being suspended or revoked until after the minister publishes the information. The presumption in law is that new legislation does not apply retro-actively, unless parliament explicitly provides for this retroactive application.”

Officials searched the Staples’ offices in the spring after the media reported McDonald’s restaurant franchises in Victoria, B.C., had hired foreign workers to replace Canadian workers.

Documents were seized and Jeff Staples was handcuffed and later detained in a police station for several hours. However, no criminal or immigration charges have been laid against the restaurants or their owners.

“In the Minister’s letter of 4 April 2014, the applicants were told only that there were reasonable grounds to suspect that they had provided false, misleading or inaccurate information in their LMO applications,” said the Staples in the court filing.

“They were provided no further information as to the allegations and were advised that an investigation would take place over the next 180 days.”

The minister must provide what is meant by “public policy considerations” in justifying the suspension of an LMO and “a civil investigation cannot be used as a foundation to discover evidence to be used in a penal proceeding,” they argued.

The Staples said both Employment and Social Development Canada and Citizenship and Immigration Canada have violated the couple’s right to “due process.” Both ministries declined to comment on the case because “the issue is currently before the courts.”

“The applicants had no notice or warning that their LMOs were to be suspended until it was already done. They have still not been provided with the allegations or given an opportunity to respond,” said the court documents. The couple has hired dozens of Canadian and migrant workers.

“Based on the minister’s actions, their temporary foreign workers (TFWs) are being affected; the permanent residence applications of a number of the TFWs have been refused, as they are employed by a suspended employer and are consequently not eligible for the program.”

Last month, the federal government announced that employers in the fast-food, retail and hotel industries will no longer be allowed to apply to Ottawa to bring in low-wage, low-skilled temporary employees from abroad if the jobless rate in their region is above 6 per cent.

It also said officials are going to require employers to provide the number of Canadian job applicants they received and interviewed, and explain why those Canadians were not hired when they applied to bring in migrant workers.

There are 25,000 Canadian employers who hire temporary foreign workers; in more than 1,100 work places, migrant workers make up at least half of all employees.
The Staples declined to comment on the case through their lawyer in Toronto, Mario Bellissimo. The government has 30 days to respond to the claim.