CIMM Committee Report

Dissenting Report of the New Democratic Party 

The serving United Nations Special Rapporteur on contemporary forms of slavery, Prof. Tomoya Obokata, undertook an official visit to Canada from 23 August to 6 September 2023. Rapporteur Obokata’s End of Mission Statement, published 6 September 2023, found that “the agricultural and low-wage streams of the Temporary Foreign Workers Programme (TFWP) constitute a breeding ground for contemporary forms of slavery.” In this regard, the statement highlighted the continued use of closed work permits, which mean a migrant worker can only work for a specific employer while in Canada.  They are not allowed to find a new employer and face deportation upon termination of employment.[1]

While the Special Rapporteur’s comments came as a shock to many Canadians, his description was no surprise to migrant workers or the organizations that represent them. For decades migrant workers have raised serious concerns about how Canada’s temporary immigration system breeds abuse and exploitation, alongside a robust concurring body of publications, reports, and testimonials. For years different House of Commons standing committees have studied the need for broad reform of the TFWP, including discontinuing the use of closed work permits to better protect migrant workers.[2]

On 26 September 2023, the House of Commons Standing Committee on Citizenship and Immigration (the Committee) decided to study the impact of closed work permits issued to migrant workers by Immigration, Refugees and Citizenship Canada (IRCC), and the findings of Special Rapporteur Obokata related to Canada’s TFWP. 

Given that the Committee heard repeated descriptions of abuse and exploitation facing temporary foreign workers in Canada, New Democrats are of the opinion that the recommendations from the Committee’s final report are woefully inadequate. They prioritize employer and industry perspectives despite the apparent power imbalance facing migrant workers with closed work permits and fail to ensure the basic rights of migrant workers such as that labour, mobility, and collective bargaining rights are respected and social services are accessible. The NDP therefore submits the following dissenting report.  

The Agri-Food and Low-Wage Streams of the Temporary Foreign Worker Program  

Canada has a dark history of migrant contract labour schemes that seek to restrict and control the mobility of underpaid racialized workers who are treated as disposable once the job is done. These workers faced harsh working conditions, discrimination, extreme abuse and exploitation. They have been historically deemed unworthy of citizenship under explicitly racist laws. With respect to the present day Low-Wage and Agri-Food Streams of the TFWP, the Special Rapporteur noted his concern “that this workforce is disproportionately racialized, attesting to the deep-rooted racism and xenophobia entrenched in Canada’s immigration system.”[3] Indeed, when the Seasonal Agricultural Worker Program (SAWP) was first implemented in 1966, then-Minister of Manpower and Immigration, Jean Marchand, justified the exclusion of European workers from the Program on the basis that its conditions were congruent to “slave labour.”[4] SAWP was then implemented exclusively for Jamaican nationals.  

Since that time, successive Conservative and Liberal governments went on to expand access to the TFWP for Canadian employers. Under the administrations of Jean Chretien’s Liberals and Stephen Harper’s Conservatives, Canada’s immigration reoriented toward temporary residency status to fulfill perceived labour market shortages. In 2014, the Conservatives created the Low-Wage and High-Wage streams to reflect the occupational skill level and local market conditions.

Since 2015 the number of foreign workers entering Canada continues to consistently surpass the number of those who enter as permanent residents. In April 2022, the Liberal government implemented several key changes that facilitated and expanded the employer’s use of the low-wage stream by increasing the portion of low-wage temporary workers that a corporation could employ from 10 percent of their workforce to 20 percent, and in select industries up to 30 percent. Additionally, they eliminated the restriction against processing Labour Market Impact Assessments (LMIA) in regions with six percent unemployment or higher and increased the cap on employers’ ability to hire their workforce from the low-wage stream. Notably, the Committee recommended the same changes along with other measures to fast-track the TFWP to the federal government in its June 2021 report, Immigration Programs to Meet Labour Market Needs. Only the New Democratic Party of Canada offered a dissenting opinion to deregulating the TFWP Low-Wage Stream at the behest of industry CEOs.[5] Moreover, a recent shocking investigation reveals that the Liberal government has been “fast-tracking applications by directing processing officers to skip crucial steps designed to prevent fraud.[6] With respect to the growth of the agricultural streams, the joint submission from Justicia for Migrant Workers & Windsor Law notes: 

“The number of agricultural migrant workers has been steadily increasing. Canada continues to expand the National Commodity List – the list of agricultural commodities that can use temporary foreign workers – subjecting more and more workers to the same restrictions and exploitation each year. This appeasement of the agri-business at the expense of vulnerable workers, is realized in a context where, over the past fifty years, the number of farms in Canada has decreased by half, the average farm size has doubled, and farm value per acre has almost quadrupled with a small number of large farms earning the majority of revenues, largely from exports.”[7]

A Breeding Ground for Contemporary Forms of Slavery: The Impacts of Closed Work Permits 

The Special Rapporteur on contemporary forms of slavery has an important mandate to visit countries on official fact-finding missions and publish a report related to contemporary forms of slavery. The Special Rapporteur’s mandate noted that:  

The majority of those who suffer are the poorest, most vulnerable and marginalised social groups in society. Fear, ignorance of one’s rights and the need to survive do not encourage them to speak out.”[8]

The Special Rapporteur’s findings of abuse and exploitation suffered by migrant workers who entered Canada through the low-wage and agri-food streams of the TFWP include excessive working hours, obliged extra-contractual tasks, physically dangerous tasks, wage theft, denial of healthcare, denial of transportation to medical facilities, limited access to social services, sexual harassment, intimidation, and violence at the hands of employers and their families.  

Furthermore, those in employer-provided housing reported overcrowded and unsanitary living conditions, lack of privacy, lack of gender-sensitive housing arrangements, and arbitrary restrictions on energy use. Such abuse is endured by migrant workers because closed work permits have a structural consequence of making workers dependent on their employer. Tying the immigration status of a worker to their employer allows abusive employers to take advantage of some of the most vulnerable people in Canada. As Elizabeth Kwan, senior researcher of the Canadian Labour Congress explained: 

“The government says TFWP workers have the same rights and protections as Canadians and permanent residents. However, the employer-specific work permit takes away the ability of the migrant workers to exercise those rights. The fear of getting fired and deported traps migrant workers in involuntary servitude, which generates a compliant labour force… 

The employer-specific work permit has a systemic impact of awarding all the power and control of the employment relationship to the employer, including employment of the migrant worker, compensation, working conditions and immigration status. It simply renders migrant workers vulnerable, and open to abuse and exploitation by employers, labour recruiters and labour traffickers.”[9]

Inherent in closed permits is a “privatized deportation system” that affords employers the power to discontinue employment and ‘repatriate’ workers “sometimes within 24 hours…,” as migrant worker advocates have noted to the Committee.[10] As such, these migrant workers have no practical ability to resign or work elsewhere. Due to fear of reprisal and retaliation, workers on closed permits are unlikely to file reports or complaints. As Quebec’s Central Labour Bodies note: 

“These real and anticipated risks and challenges are systemic in nature. The current configuration of immigration laws and closed work permits traps temporary immigrants in a straitjacket where they find themselves both dependent on their employers and virtually unable to assert their rights or benefit from basic social protections.”[11]

This power imbalance inherent in the closed permit system is often further exacerbated due to predatory fees migrant workers face from unscrupulous actors in Canada and abroad: 

“Workers interviewed by Amnesty International have reported enduring abusive conditions for months or even years, out of fear of threats and reprisals, including deportation or loss of income. Many workers have sizeable debt due to recruitment fees (which are in some cases exorbitant) charged in their country of origin or have been subjected in Canada to extortionary recruitment practices to obtain employment, or predatory and fraudulent ‘consulting’ practices to obtain permanent residence. The resulting financial precarity can make them unwilling to take risks with their employment situation, despite abuse and human rights violations. Many have family members in their home country who rely on them to earn income in Canada to pay for food, living and education expenses.”[12]

Another challenge that migrant farm workers face is the denial of their right to organize and collective bargaining in Ontario. The National Farmers Union acknowledges that “[a]griculture is one of the only sectors where legal exceptions have been permitted to deny workers full protection of their rights to freedom of association. Without union representation to stand up for their interests or status securing their presence in Canada, migrant workers withstand exploitation, fearing deportation if they speak out.”[13] Mr. Santiago Escobar further clarified that: 

“In 2010, the UN’s International Labour Organization found that Canada and Ontario violated the rights of over 100,000 agricultural workers by banning farm unions. Sadly, the response was no response. Canada has an obligation to protect human rights, which include the labour rights of all workers.”[14] 

With regard to the unique threats that the closed permit system poses to women and gender-diverse individuals, the Alliance for Gender Justice in Migration recognizes that: 

“Restrictions are also placed on women and gender-diverse workers in the agricultural industry where their bodies are seen as property, with instances where they have been deported for leaving the farm without permission from their employers, for attending social events, for receiving male visitors, or for being pregnant… Accessing reproductive or sexual health services, such as birth control and/or abortion, is particularly challenging.”[15]

Further exacerbating the second-class treatment of these TFWs is limited access to health care and social services, inconsistent or limited access to employment insurance, despite paying into premiums for years, and substandard health and safety standards and workplace protections:  

“In many provinces, workers with precarious status are disproportionately working in occupations excluded from protections under provincial Employment Standards, most notably care work and farm work. Furthermore, these exclusions from guaranteed labour rights disproportionately affect racialized migrant workers who predominantly serve in sectors excluded.”[16]

The recent expansion and streamlining of the TFWP cannot be explained by a ‘temporary labour shortage’ as migrant agricultural workers, for instance, have arrived in Canada with restrictive work permits since the 1960s. Substandard working conditions that TFWs in these streams endure reinforce the perception of a domestic labour shortage simply because permanent residents and citizens of Canada refuse to work voluntarily under such conditions: 

“Even the basic rights within the employment standards are made inaccessible for agricultural workers, ensuring that foreign workers will form the bulk of the labour in the industry, which in turn allows for even further diminution of basic labour and human rights, creating a vicious cycle of exploitation.”[17]

Half-Hearted Attempts To Protect Vulnerable Migrant Workers 

In 2019, then-Minister of IRCC Ahmed Hussen introduced the open work permit for vulnerable workers program (OWP-VW) in reaction to concerns of abuse bred by the closed work permit system. Migrant workers experiencing abuse in their work environment were told they could apply for a one-year temporary work permit that is generally not renewable. However, this measure was rendered ineffective by an excessively onerous application process and has no preventative value in any event, as the open work permits are granted only after temporary foreign workers suffer abuse. As the Special Rapporteur’s report notes, the application process “requires that applicants remain in a precarious situation until they receive a positive decision.”[18]

Witnesses pointed to a high evidentiary threshold and a scarcity of available assistance from service providers to explain why workers suffering abuse are hesitant to pursue the OWP-VW program. Migrant Workers Centre describes the application process as “extremely labour-intensive,” “extremely time-consuming,” and “largely inaccessible, especially for migrant workers coping with trauma and ongoing abuse”:

“Applicants must fill out confusing forms, complete a personal statement, create an online profile, and upload documents. Applicants are expected to do all this, despite many of them not fluently speaking French or English or having access to functioning, private internet access. When applications are lacking, IRCC officers have the authority to conduct interviews to gather more information. However, this step is often bypassed completely, and applications are regularly rejected without any inquiry or opportunity to submit further details.”[19]

Data provided by IRCC to CIMM indicates that, as of October 2023, the overall rejection rate for OWP-VW applications is 43%. Advocates and service providers acknowledge a “myriad of issues with obtaining evidence,” including the inability of workers “to bring their phones to work to record workplace issues.”[20] 

Moreover, even if an application is successful, workers often report being blacklisted after reporting abuse and face challenges obtaining another job through the TFWP. The practice of blacklisting by employers in certain industries is made possible by the dependency on employers inherent in closed work permits: 

“Other farm employers are not willing to hire workers with OWP-VWs because it is well-known that these types of permits are obtained by complaining about the former employer.”[21]

Not only do Low-Wage and Agri-Food stream migrant workers face lesser health and safety protections at work, but the enforcement of regulations that are on the books is distressingly deficient. Data provided to the NDP by Employment and Social Development Canada (ESDC) indicates that nearly eighty per cent of federal inspections of workplaces using the TFWP are not conducted in person and merely seven per cent of inspections involve unannounced site visits. For obvious reasons this is extremely inadequate. Virtual inspections and pre-planned site visits, which comprise more than ninety-three percent of ESDC’s TFWP inspections regime, will not uncover substandard living or working conditions and cannot facilitate frank discussions with workers. As Ms. Denise Gagnon, Vice-President of Réseau d'aide aux travailleuses et travailleurs migrants agricoles du Québec : 

“we need to reinforce workplace inspection mechanisms and conduct surprise visits. When visits are planned, everything’s always in order, everything’s beautiful, everything’s perfect, and nobody talks when the inspector arrives on site.”[22] 

Replacing Closed Work Permits 

Witnesses representing employer and industry interests generally supported the use of sectoral work permits as an option to replace employer-specific work permits. Many witnesses argued that sectoral work permits would neither effectively promote labour mobility nor end the relationships of dependency on employers that make migrant workers structurally vulnerable to exploitation and abuse. As noted by the Migrant Workers Centre, the SAWP demonstrates how the sectoral permit system has been unable to create labour mobility or improve the rights of seasonal agricultural workers: 

“Sectoral specific work permits are already partially in use under the [SAWP], under which farmworkers come to Canada not tied to a specific employer, but instead are able to work for any employer that is registered under the SAWP. Workers may seek permission to transfer to another farm without the need for a new work permit, but require the approval of their current employer, their proposed new employer, and the country liaison officer responsible. However, the reality for many abused workers is that transferring employers is impossible. The bureaucratic processes involved are complicated to navigate and consulate liaison officers often prioritize economic relationships with employers over the well-being of workers.”[23]

The Association for the Rights of Household and Farm Workers elaborate on this concern about the efficacy of sectoral work permits: 

“Restrictive work authorizations, such as sectoral, regional, occupational or agency-specific work permits, make workers’ right to earn a living in the country conditional on maintaining a relationship with specific employers, enabling employers to maintain substandard condition… These types of permits are often implemented by tying workers to specific private recruitment-placement agencies, who are granted authority over the placement of (im)migrant workers with individual employers. Although this arrangement may appear, on its face, to grant workers a minimal right to change employers, in practice, workers find themselves simply bound to a new specific employer, the agency itself.”[24]

The Alliance for Gender Justice in Migration adds: 

“Sector-specific permits still empower groups of employers to maintain substandard conditions, to identify whistleblowers as ‘troublemakers’ and to essentially boycott them.”[25]

Reports of blacklisting demonstrate that some employers are likely to remain inclined to abuse their power and act as gatekeepers with sector-based work permits. With sectoral permits migrant workers are likely to remain vulnerable to intimidation because they need to have connections to find new employers. It is by no means impossible to create work permits that protect Canada’s labour markets while respecting human rights: 

“Replacing the closed licence with an open licence would allow TFWs who lose their jobs or have their hours reduced to find a job while legally remaining in the country. Such a change does not, however, imply the abolition of all rules and measures aimed at protecting the labour market from a large influx of temporary workers.” 

Mr. Michel Pilon, legal coordinator of the Réseau d'aide aux travailleuses et travailleurs migrants agricoles du Québec, further explained: 

“It’s actually not rocket science. Even if the workers have open work permits, if good employers are offering good working conditions and good accommodations, the workers will want to work for them and won’t look elsewhere.”[26]

Employer-specific work permits create severe power dynamics whereby migrant workers are afraid to raise concerns for fear of reprisals and retaliation, even among the many responsible employers. Therefore, the NDP is making the following recommendation: 

Recommendation 1 

That the Government of Canada abolish employer-specific work permits, replacing them with open work permits. 

Reconciling the Temporary Foreign Worker Program with Human Rights 

While not every employer who employs workers through the TFWP is abusive, the immigration status of certain categories of migrant workers imposes structural vulnerability in comparison to counterparts with permanent status or citizenship. The pivot toward temporary residency at the expense of permanent residency, including through the Low-Wage Stream of the TFWP will undoubtably continue to contribute to a burgeoning population of non-status workers. As Quebec’s Central Labour Bodies notes, “even without an economic downturn, the increase in the use of the TFWP has an upward impact on the number of immigrants who become non-status in Canada.”[27]

While closed work permits pose additional risks to TFWs who may easily become undocumented to escape an abusive employer, vulnerabilities to human trafficking and contemporary slavery are indeed inherent in temporary status more broadly. Migrant workers that have fallen out of their temporary status, often at no fault of their own, are acutely vulnerable to labour trafficking schemes, which, as the United Food and Commercial Workers (UFCW) notes, is “an alarmingly underreported crime”: 

“In almost all instances of forced labour trafficking, victims are brought to Canada under legitimate schemes, namely the Temporary Foreign Worker Program, and due to a lack of effective enforcement, oversight and statutory protections are left entirely vulnerable to unscrupulous wrongdoers.”[28] 

The growth of the TFWP has created “an environment where human trafficking is a shameful reality in our country.” People with temporary status will always be more vulnerable to these schemes than those with permanent status. When temporary foreign workers on closed permits are subject to an abusive employer, their options are often as narrow as enduring abuse or resorting to an undocumented existence. Without a pathway to permanent resident status or sufficient procedures in place to facilitate transitions from one status to another, vulnerabilities to abuse, exploitation, and modern slavery will continue, and workers will remain at a high-risk of falling into irregular status. The NDP is therefore making the following recommendations: 

Recommendation 2 

That the Government of Canada take necessary measures to work with provincial and territorial governments to ensure temporary foreign workers including those working under SAWP are covered by all applicable employment legislation of the respective province or territory in which they are employed, including the right to join a union and collective bargaining, and that appropriate machinery and procedures are in place to enforce compliance with employment legislation.  

Recommendation 3 

That Employment and Social Development Canada make the Migrant Worker Support Program a permanent and stable source of funding indexed to the number of migrant workers arriving in Canada. 

Recommendation 4 

That Immigration Refugees and Citizenship Canada implement policies to ensure that any temporary foreign workers including those working under the Seasonal Agricultural Worker Program have the ability to apply for permanent resident status along with their immediate family.  

Recommendation 5 

That IRCC work with front-line service agencies, organizations working with temporary foreign workers and across government departments to develop a broad regularization strategy that regularizes the status of Canada’s undocumented population without discrimination against former low-wage or agricultural temporary workers, and to allow for a moratorium on deportations of non-status workers and their families until their individual cases are adjudicated through a transparent and impartial appeal process.  

Recommendation 6 

That Canada adopts and implements the U.N. Convention on the Protection of the Rights of all Migrant Workers and Members of Their Families.  

Conclusion 

The modern Temporary Foreign Worker Program is not a last resort to address acute labour market shortages as advertised. Rather, it allows companies to cut costs by accessing a pool of workers with highly precarious immigration status. It’s use as an ongoing business model demonstrates the failure of successive Liberal and Conservative governments at managing Canada’s economy. Instead, they have relied on a permanent underclass of workers with lesser rights and legal protections. To ensure that Canada’s immigration system is fair and respects all workers, it must meaningfully address the precarity of migrant workers, especially those on employer-specific work permits. Failure to do so would only perpetuate the systemic nature of abuse and exploitation faced by workers with temporary status. Replacing employer-specific permits with sectoral work permits will not adequately address the systemic abuse that the Special Rapporteur’s report illuminates. Indeed, the Rapporteur’s findings come in the context of the SAWP, which uses sector-specific permits already.  

While the number of closed permit workers in Canada has grown exponentially in recent years, accompanying reforms attempting to protect these workers have been cosmetic and largely ineffective. Perpetual temporary status and restrictive work authorization policies, including the Committee’s proposed sectoral permit alternative, will continue to leave migrant workers vulnerable to exploitation and abuse. These are workers that have been feeding Canadian families, taking care of our loved ones, and doing essential work during the COVID-19 pandemic. To genuinely address labour shortages, what is needed is landed immigrant status as a standard for workers across the labour spectrum and to end, once and for all, exploitative labour migration schemes that successive Conservative and Liberal governments have entrenched in Canada’s immigration system for decades.