Tax Court ruling says defrauded foreign workers in Quebec eligible for EI

MONTREAL — Advocates are hailing a recent Tax Court of Canada decision that recognizes the rights of migrant workers in Quebec to qualify for employment insurance even if they don’t have a valid work permit.

The decision rendered this month stems from a case brought by a group of 18 temporary workers from Guatemala who had appealed an initial ruling that their earnings weren’t insurable.

That’s because the workers — recruited through the Temporary Foreign Worker Program — were victims of fraud perpetrated by employment firms in Quebec that wrongly told them they could work for different employers.

Typically, workers arriving from abroad must work for the company indicated in their documentation. In this case, the employer didn’t respect the terms laid out in the permit, leaving workers scrambling to find other work.

The Canada Revenue Agency had considered those hours weren’t insurable, since they didn’t work for the companies indicated in their permits.

But the May 10 ruling says that work is in fact insurable under the law, given the state’s obligation to guarantee social security for all workers.

Judge Alain Tardif wrote that while his focus was the issue EI eligibility, it was clear the Guatemalans were “victims of an unscrupulous organization whose sole purpose was to enrich itself on the backs of poor … destitute and quite vulnerable people.”

Tardif added in a complex, 48-page ruling that the 18 had hoped to improve the lives of their families, and he urged the government to do more to ensure their well-being.

“On this issue  … it seems to me totally unacceptable to leave such seasonal workers to themselves,” Tardif wrote. “It is urgent and imperative for the state to set up an organization with the necessary resources to reach all seasonal workers or at least prepare a written kit in the language of those concerned to enable them to know their rights and obligations, thus enabling seasonal workers to get answers to their problems or concerns before they arrive, upon arrival and throughout their stay in Canada.”

In the rest of the country, a Federal Court of Appeal ruling in 1998 dealt with the issue and there has since been roughly two decades of case law to back it up.

But in Quebec, a lawyer who represented the temporary workers said, the rules had been interpreted differently under the province’s civil code.

“Even though it’s employment insurance and it’s federal jurisdiction, in Quebec they are still interpreting the notion of labour contract in a way that is specific to civil law instead of common law,” Richard-Alexandre Laniel of the Association of Progressive Jurists said.

“What happened with this decision is that the judge decided in a civil law context, we can determine in certain circumstances that migrant workers who don’t have a valid work permit can still make their hours worked insurable within the employment insurance law.”

Advocates have called for an end to the practice of issuing closed work permits, which restricts a worker to a single employer. That provision, along with language barriers and concerns about job loss, leave foreign employees reluctant to file complaints.

Thousands of migrant workers make their way to Quebec each year.

“It’s a bit soon to determine what will be the impact of this decision on CRA practices,” Laniel said. “But we think they should have a more flexible approach regarding migrant workers.”

Federal government lawyers have 30 days to appeal. They did not immediately reply to an email seeking comment.

Sidhartha Banerjee, The Canadian Press