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Migrant workers sue recruiter, employer in small claims court

Date

2018-05-28

Authors

Nicholas Keug

Abstract

Ryan Aporbo was desperate when he lost his job as a restaurant cleaner amid Alberta’s economic recession and faced possible removal to his native Philippines.

Then the temporary foreign worker said he found an ad from Toronto-based A&L Hammer Workforce Management Inc., which recruits workers for nursing homes, construction, agriculture, factories, meat packing plants, hotels and restaurants.

Newspaper title

The Star

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Aporbo said he was told by the agency’s owner, Liwayway “Lily” Miranda, that a farm in East Gwillimbury was looking for mushroom pickers. For nine months, from April 2016 to January 2017, he says he worked at the Sharon Mushroom Farm on a visitor visa instead of a work permit.

He is now among a group of Filipino workers suing Miranda, A&L Hammer and Sharon Mushroom Farm in small claims court, alleging they were improperly charged thousands of dollars in fees for legal advice and “labour market impact assessments,” which are a prerequisite for the work permits they never received. They are asking for refunds.

The employer, not the workers, “has the sole responsibility in paying the cost for the processing and application fees to secure a positive labour market impact assessment,” the workers say in the statement of claim.

They allege that Lily was “without authority to collect” those fees, and “instead passed all financial burdens to the plaintiffs, taking advantage of their ignorance.”

They also claim that despite paying the fees, they did not receive work permits.

In a joint statement of defence, the defendants say Miranda never provided legal advice to the plaintiffs, nor did she collect fees for that purpose.

They say the fees charged to the workers covered government fees and expenses for an immigration lawyer, as well as the labour market impact assessment fees.

The statement of defence says A&L merely assisted the complainants individually in its role as a recruiter contracted by Sharon Mushroom Farm, and the farm had no agreement for services or direct engagement with the plaintiffs.

“SMF (Sharon Mushroom Farm) is not involved in any capacity with regards to any applications for foreign worker status made by the plaintiffs with the assistance of counsel,” said the statement of defence by A&L and the mushroom farm.

“A&L merely recruits, assists the applicants to obtain job offers by potential employers and then the applications for foreign worker status are referred to an immigration lawyer.”

Aporbo, who has a university degree in agriculture from the Philippines, said in an interview that he was brought to Calgary under the temporary foreign worker program in 2013.

After he was let go in June 2015 when his work permit expired, he successfully got his visa extended but was unable to find another job. When he started working at Sharon Mushroom Farm in April 2016, he said he only had a visitor visa.

Aporbo said he paid A&L Hammer a total of $1,371 in May and June 2016 for a labour market assessment application, as well as a work permit and a multiple entry visa, for which he was issued receipts by the recruiter. He said he never received a new work permit to work for the mushroom farm despite the payment.

“I had the experience with the process working in Alberta. I knew I would need the labour market impact assessment and work permit to work in Canada legally,” said Aporbo, who is now in Canada on a temporary permit while his humanitarian application for permanent residence is in process. “But I had no choice.”

Earlier this month, Canada Border Services Agency announced Miranda, Sharon farm owner Laxman Marsonia and his son-in-law, Yatin Bera, had been charged with trafficking and misrepresentation-related offences under the Immigration and Refugee Protection Act. They appeared in a Toronto court on Monday, where the case was adjourned until June 29.

It was not clear if those charges were related to the allegations made in small claims court. CBSA would not reveal details of the case, but said in a statement that “there are serious consequences for those who break Canada’s immigration laws, including possible criminal convictions, court-imposed fines, probation periods and incarceration.”

Neither the workers’ claims nor the border agency’s allegations have been proven in court.

Immigration lawyer Guidy Mamann, who is acting for the farm and the recruitment agency in relations to the CBSA charges, said the immigration law casts a very wide net in its definition of human trafficking to include activity that is not human trafficking by “the normal dictionary meaning.”

Farm operators “can’t bring in the workers from abroad because the process is so onerous, expensive, difficult to navigate, and is very very unforgiving. The slightest error can have draconian consequences, as you can see here,” Mamann said in an email.

“Lily has been trying to serve Canadian farmers the best way she can by helping them get foreign workers who will help them get their produce to market. If there were regulatory oversights, these could have easily been dealt with ... through the regulatory compliance process rather than the criminal process. No doubt the authorities are aware of the tremendous shortage of available labour that Canadian farmers are facing.”

Criminal lawyer Leora Shemesh, a co-counsel for Miranda in the border agency charges, said her client has yet to receive documents from the Crown on the substance of the allegations.

“It’s premature for me to comment,” said Shemesh in a phone interview. “(Miranda’s) position is she has done nothing wrong.”

Correction - May 31, 2018: This article was edited from a previous version that misspelled Guidy Mamann’s surname.

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Geographical focuses

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