Document Details

2017

Sara Mojtehedzadeh

The Toronto Star

The abuse, Jacqueline Hernandez says, started just 15 days after she arrived as a temporary foreign worker at an Ontario fish farm.

It began with her employer separating her from other women on the farm near Leamington. Then, he demanded she eat alone with him, threatening to deport her to Mexico if she did not. Later, he would lock her in his office, touch her, and ask her to perform oral sex, according to an Ontario Human Rights Tribunal decision.

On three occasions, he “climbed on top of her and penetrated her with his penis,” the tribunal found. Hernandez testified that she did not want that but was afraid he would send her home.

The Star is not using Hernandez’s real name, which is subject to a publication ban after her successful human rights case against her former employer. In 2015, the tribunal found her boss, Jose Pratas, “engaged in a persistent and ongoing pattern of sexual solicitations and advances” toward her. It ordered him to pay Hernandez more than $150,000 in compensation.

Pratas could not be reached for comment. He did not testify in the tribunal hearing. He was charged criminally for allegedly abusing seven women including Hernandez and pleaded guilty to simple assault in 2011. He was given a conditional discharge with three months of probation. Other sexual assault charges were withdrawn in a criminal court the same year. Pratas no longer owns the farm where Hernandez worked.

While Hernandez is one of the few migrant workers to file — and win — a tribunal case against an abusive employer, she believes there are many more like her who live in fear of coming forward.

“Simply, they can’t speak. Their hands are tied,” she says.

That, her tribunal decision notes, is because of migrant workers’ unique “economic vulnerability” — exacerbated by the fact that their work permits in Canada are tied to a single employer.

If they complain about abuse, their boss can immediately terminate them — and they lose their right to be in Canada, says Fay Faraday, a lawyer who has published two extensive reports on migrant workers’ rights.

Even if they are not fired, the federal government can suspend their employer from the temporary foreign worker program for violating the law. That means workers’ permits become invalid, and they lose their job anyway.

“There is no guaranteed protection for workers to come forward in that situation,” says Faraday.

“The outcomes we see are entirely predictable given the system we have created. They are not isolated stories. They are a systemic problem.”

As a little girl, Hernandez dreamed of coming to Canada, a place where her migrant worker father told her “everything was beautiful.”

The catalyst was when her husband in Mexico was murdered for the equivalent of $300. She had two children to support, so she decided to follow her father north in the summer of 2007.

It took a near-death experience for Hernandez to speak up about the abuse she suffered when she arrived.

On May 4, 2008, a Sunday, Hernandez was watching a soccer game with a friend. Her boss called her demanding to know her whereabouts, according to her tribunal testimony and an extensive interview with the Star.

By this time, Hernandez says she had been abused for months.

Her employer would routinely take her to his office and tell her to divulge information about other migrant women at the fish farm. She says if she refused, he would touch her. If she co-operated, he would touch her anyway.

The migrant women who filleted the most fish in a week would be given a bonus, she recalls — a prize she dreamed of clinching. But she was pulled into his office and away from the line too often to win. The bonus was a $5 gift certificate to Dollarama.

She says she was not the only woman preyed on. Seven other migrant women who came forward ultimately settled their human rights tribunal cases confidentially with the same employer.

On that Sunday in May, Hernandez says her boss showed up in his car to pick her up from watching soccer, furious. He told her to hand over her phone. When she refused, Hernandez says he took both hands off the steering wheel to try and grab it off her. The car swerved, narrowly missing an oncoming truck.

“I said, ‘you’re going to kill us,’” she told the Star.

A friend of Hernandez’s happened to be driving by, witnessing the aftermath of the near-accident. The friend issued Hernandez an ultimatum: make a complaint, or I will do it for you.

Hernandez was scared of jeopardizing her right to live and work in Canada. But she had also hit a turning point.

“I couldn’t take it anymore.”

With responsibility for enforcing the laws around the migrant worker program split between federal and provincial governments, Faraday says vulnerable workers often fall between the cracks.

“One of the things that arises as a justification for not taking action is this kicking the ball back and forth between federal and provincial jurisdictions,” says Faraday.

The federal government is responsible for ensuring employers live up to the terms of their Labour Market Impact Assessments — which set out why they are unable to recruit Canadians for a job and things like wages for migrant workers. The Ontario government is responsible for ensuring employers abide by provincial labour laws.

A report released this spring by the federal auditor-general found that Employment and Social Development Canada (ESDC) does not “adequately identify and deal with” employers who are violating temporary foreign worker program requirements and conducts “few on-site inspections and face-to-face interviews.”

Most of its activities, the report added, “consisted of reviewing documents that employers were asked to provide to investigators by mail.”

Through a Freedom-of-Information request, the Star requested a breakdown of federal on-site inspections and all recorded violations. ESDC reported initiating 189 on site inspections in 2015-16. It has completed 155 inspections so far this fiscal year and started over 700, but the Star was told that due to “system limitations” no breakdown of recorded violations was available.

The department said “some” of the alleged violations the program “typically receives” through its confidential tips hotline included employers failing to acknowledge safety concerns, poor living conditions, and threats of deportation.

In an emailed statement, Matt Pascuzzo, spokesperson for the federal employment minister, said the government of Canada “takes its responsibility to protect temporary foreign workers and the integrity of the (temporary foreign worker) program very seriously.”

“Any abuse of workers is unacceptable. Temporary foreign workers are protected by all the same rights and protections as Canadians.”

But as long as migrant workers are bound to a single employer, Faraday says those rights and protections are often meaningless. Workers do not want to lose their jobs — and therefore their ability to be in Canada — by speaking up about abuse.

“The issue of tied (work) permits is probably the most damaging part of the system,” she says.

Moreover, workers in Canada through the Seasonal Agricultural Workers Program, one of four programs under which migrant farmworkers come to Canada, have employer reviews sent to their home country’s ministry of labour every year.

“If they don’t get a favourable review they can be kicked out of the program with no recourse — no right of appeal,” says Faraday.

Provincial Labour Minister Kevin Flynn says there are “good guys and bad guys” but that he hopes a new bill before the legislature, Bill 148, will give the ministry more resources to inspect workplaces.

A recently implemented information-sharing agreement with the federal government will also help his ministry identify employers using temporary foreign workers and assist with inspections. A recent proactive blitz focused on the sector found that more than half of Ontario employers inspected fell afoul of employment laws.

“It’s our job to get to the bad actors,” Flynn said.

Earlier this year, an extensive report on Ontario’s labour laws from two government-appointed special advisers pointed to the “particularly vulnerable and precarious nature of temporary migrant workers,” and called agricultural workers’ exclusion from the right to unionize “unjustified.”

Bill 148 will not address that prohibition, making Ontario the only province in Canada where agricultural workers cannot form a union under provincial labour law.

“Imagine a worker who is unrepresented going through a five-, six- or seven-year ordeal with no support, with language barriers. It’s quite an extraordinary thing to expect workers to do that,” says Niki Lundquist, a lawyer for the private sector union Unifor who represented Hernandez at her tribunal hearings. (Because Hernandez was technically a fish worker and not an agricultural worker, she was able to belong to a union).

“The exclusion of farmworkers from the right to unionize is constitutionally suspect. I would go further and say it is a breach of the constitution,” Faraday adds.

“The reality is that very deep changes need to happen at both levels (of government) in order to undo the structural vulnerability and exploitability that our legal system has created.”

Leon Ferguson arrived in Ontario as a migrant worker in 2015 from Jamaica, with little more than a T-shirt and a pair of jeans.

He was hired to pick produce in a Kingsville greenhouse, but says his employer instead assigned him to do construction work. He says his bunkhouse with one bathroom and a two-burner stove was shared with eight other workers. His pay stubs show he sometimes worked 80-hour weeks and had hundreds of dollars deducted from each pay cheque for his consular liaison, an official meant to monitor working conditions on farms.

SAWP agreements set out legal deductions that can be made from migrant workers’ wages for consular liaisons. But Ferguson says his liaison did little to advance workers’ rights.

“My liaison told me I’m not important because in Jamaica, there’s 15,000 guys waiting to come here,” Ferguson says.

A survey of almost 600 Ontario migrant workers by Wilfrid Laurier University professors and International Migration Research Centre research associates Janet McLaughlin and Jenna Hennebry and the late University of Guelph professor Kerry Preibisch found “extensive exposure to occupational hazards” — including working with pesticides, heavy lifting, and long hours of repetitive movement. The study also found the majority of workers had “minimal knowledge of the occupational risks in their work, and little health and safety-related information or training.”

But when they get hurt, McLaughlin says migrant workers often have difficulty accessing health care or making compensation claims as they are legally entitled to do.

Simcoe County, for example, saw 479 emergency room admissions for migrant workers in 2015, statistics obtained by the Star from just one hospital show. Yet across the entire province that year, seasonal agricultural workers registered just 129 injuries at the Workplace Safety and Insurance Board (WSIB).

“Workers are genuinely fearful that if they request time off to get health care, that could lead to them being fired, or it could lead to them employer not requesting them back in future years,” says McLaughlin, who has worked with migrant worker health clinics for a decade.

“It’s almost crippling in terms of what we’re able to do because the fear that workers have is so strong that it prevents them from making claims or even modifying work. Instead what they ask for is painkillers.”

Two months after Ferguson arrived in Canada, he says he injured his neck while lifting heavy stones outside the greenhouse.

He says he doctor recommended several months of treatment. But he says his employer tried to send him back to Jamaica almost immediately — and cancelled his health card. His WSIB claim was denied; according to the decision letter issued by the board, there was insufficient evidence that a work-related accident caused Ferguson’s condition.

Between 2004 and 2014, more than 780 migrant workers in Ontario were medically repatriated back to their home countries after injuries — nearly all of them against their will, according to a study for the Canadian Medical Association Journal. Under the Seasonal Agricultural Worker Program, employers can deport workers for non-compliance, refusal to work, or “any other sufficient reason.”

Even if those workers make successful compensation claims, the WSIB cuts long-term benefits when it deems them capable of finding an alternative job in Ontario. In a landmark ruling on a migrant worker case this week, the independent Workplace Safety and Insurance Appeals Tribunal said that practice was illegal.

Jessica Ponting of Toronto-based Industrial Accident Victims Group legal clinic says the practice “makes a mockery of our system of justice” because it treats migrant farmworkers as if they permanently reside in Ontario even though they do not. Their legal right to be here is tied to a specific employer, and they are unable to return to Ontario if their injuries prevent them from performing farm work.

“It tells these people of colour that their losses are not real. It tells them they don’t deserve compensation,” Ponting says.

In a statement to the Star, a WSIB spokesperson said the board had launched an outreach program this spring to raise awareness about migrant workers’ rights. It also said it “recognized the inherent challenges in these unique claims and work where we can to help people access needed health care services in their own country.”

Ferguson remained in Canada on a visitor’s visa, which he is currently trying to extend. He says he still believes Canada is a land of opportunity. But he has not shaken the sense of being disposable.

“We were treated like slaves.”

There were times when Hernandez says she almost gave up, after she began the years-long journey of trying to hold her employer accountable.

But she had a few things working in her favour that many migrant workers don’t, she says. She had a union, which ultimately provided her with the legal support to pursue a human rights tribunal case. A legal clinic fought for her to be able to stay in Canada, and finally obtain permanent status. And Hernandez met a loving partner here, a fellow migrant worker, who stuck by her through the entire ordeal.

“It’s a complete exception,” says lawyer Cathy Kolar.

But Hernandez says her experience — the abuse, and the sense of powerlessness to stop it — is not.

“Can you imagine how easy it is for bosses to wash their hands of people?” she asks.

“There are so many people who don’t have a voice. They need people to listen.”

Unlike the vast majority of migrant workers, Hernandez has been able to establish a permanent life in Canada by successfully applying for permission to stay on humanitarian grounds. Her husband has found a solid, well-paying job, and she is proud of their bright, bilingual children. She says she wishes workers had the option to stay too.

“Bosses would be scared to not respect rights. (Workers) could establish themselves here, bring families and build a home,” she says.

“Imagine.”

Correction - October 16, 2017: This article was edited from a previous version that mistakenly said that Janet McLaughlin is a professor at the University of Waterloo. As well, the article was edited to include the names of the other professors involved in the survey.

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  This sexually abused migrant worker is now safe — but she knows others aren't (https://www.thestar.com/news/canada/migrants/2017/10/07/this-sexually-abused-migrant-worker-is-now-safe-but-she-knows-others-arent.html)
  

Agriculture and horticulture workers, Aquaculture and marine harvest labourers, and Labourers in fish and seafood processing

Documented cases of abuse, Numbers of migrant workers, and Systemic/state violation of right/freedom

Public awareness

Canada, Ontario, Alberta, Manitoba, Quebec, British Columbia, Other provinces, Federal, Nova Scotia, and National relevance

English