CIMM – Litigation Backgrounder - High-profile Legal Challenges Relating to Committee Agenda – December 05, 2023

Temporary Foreign Worker Program – Proposed Class Actions:

Immigration, Refugees and Citizenship Canada (IRCC) is facing multiple proposed class action claims involving the Temporary Foreign Worker (TFW) program.

One claim was brought in Quebec by the Association for the Rights of Household and Farm Workers and an individual going as “A.B.”, and seeks damages. It alleges that employer-specific work permits make workers vulnerable to contemporary forms of slavery in Canada by making them wholly dependent on their employers to keep their legal status in Canada. It also alleges that the provisions implementing the permits breach the worker’s right to equality protected by the Charter (section 15) as many of these workers are minorities by their race, national or ethnic origin or colour. [Redacted]

Two other proposed class action claims were recently filed by Vancouver-based law firms alleging that Canada has overcharged employers who paid the “employer compliance fee” for work permit applications since 2016. The claims allege that Canada has made an illegal profit of over $87 million from these fees, contrary to s. 19(2) of the Financial Administration Act. [Redacted]

Proposed responses (reactive only):

What does IRCC say in response to the allegation that the program makes the workers vulnerable and breaches their Charter rights?

While I cannot comment on specific cases before the Federal Court, I can say that employer-specific work permit holders are authorized to work for the employer who supported their work permit application; however, all workers still have the right to change jobs or employers in Canada. Employers of employer-specific work permit holders are subject to an employer compliance regime, which seeks to ensure the protection of foreign workers through a suite of regulatory obligations. This aims to promote safe and fair working conditions for temporary foreign workers. IRCC has also implemented facilitative measures to support employer-specific work permit holders, including the Open Work Permit for Vulnerable Workers to allow workers to leave abusive situations and the Changing Employers Public Policy so workers can begin working with a new employer more quickly.

What is the “employer compliance fee”, and why is it charged?

The employer compliance fee is a fee that employers must pay to hire a temporary worker through the International Mobility Program (IMP). Employers do not need to pay the employer compliance fee if they hire a worker with a valid open work permit or through the Temporary Foreign Worker Program (administered by Employment and Social Development Canada). The $230 compliance fee is charged to an employer hiring a temporary foreign worker under the IMP on an employer-specific work permit.

If asked for further comments on either litigation matter:

• As these matters are in litigation, it would be inappropriate for me to make further comments.

Litigation alleging discrimination in relation to the Canada-Ukraine Authorization for Emergency Travel (CUAET) program – “differential treatment”:

IRCC is facing litigation in which the litigants argue that the Canada-Ukraine Authorization for Emergency Travel (CUAET) program allowing Ukrainians to emigrate to Canada is far more generous than what is available for other foreign nationals in similarly dangerous situations, including Afghans. They argue that this is discrimination and contravenes section 15 of the Charter (equality rights). There was a separate human rights complaint based on similar arguments brought before the Canadian Human Rights Commission. This matter has settled based on confidential terms, and should not be discussed publicly due to settlement privilege.

Proposed responses (reactive only):

What does IRCC say in response to the allegation of differential treatment of Afghan nationals?

• While I cannot comment on specific cases before the Federal Court, I can say that the situations in Afghanistan and Ukraine are very different and necessitated different responses. Afghans are fleeing a regime change that has fundamentally altered country conditions. Human rights are deteriorating, especially for vulnerable groups. Afghans require a permanent protection solution, and are being resettled as refugees and as extended family members.

If asked for further comments on the litigation:

• As these matters are in litigation, it would be inappropriate for me to make further comments.

Litigation Risks re: Automation:

[Redacted]

At a recent immigration law conference it was publicly announced that a group of private bar immigration lawyers are working together to gather evidence and prepare for a legal challenge of IRCC's use of AA or automated decision-making tools. While this announcement did not provide details beyond the names of the two main contacts, the group requested that other private bar immigration counsel not make allegations or undertake legal challenges to IRCC’s uses of AA or automated decision-making tools without proper evidentiary foundation, as this could create bad precedents and harm future cases they could bring forward to courts.

What we have seen is litigation challenging IRCC’s use of Chinook. Chinook is a Microsoft Excel based tool that was introduced to process temporary residence related applications. The tool generates a spreadsheet that collects data from the GCMS and other sources. [Redacted]

Proposed Responses (reactive only):

If asked about how IRCC’s uses of automation are developed/implemented:

• A team of experts, including officers who process applications and privacy, legal, and policy experts, is involved throughout the process of developing and using these tools. Changes to tools that help with processing applications only happen with human oversight, testing, and approval.

If asked about discrimination/bias in IRCC’s automated tools:

Identifying and mitigating potential bias or discriminatory impacts is a critical focus at all times as we design, develop, and implement technologies. Every aspect of our tools is scrutinized for possible bias or discrimination, from rules used in processing and sorting applications, to the manner in which information is displayed for decision-makers. We also conduct Gender-Based Analysis Plus assessment on tools that support decision-making, and monitor the performance of our tools to identify any potential unintended impacts on groups protected under the Canadian Charter of Rights and Freedoms.

Increases in Temporary Resident and Mandamus litigation

• While refugee and permanent resident litigation volumes have remained fairly stable over the past few years, there has been significant increase in litigation involving negative Temporary Resident (TR) decisions (including students) and litigation arising from delays in processing whereby applicants seek a mandamus order that requires IRCC to make a decision on the application within a specified timeline.
• TR litigation: TR litigation has more than tripled in last two years. Challenges are largely based on insufficient reasons being provided to the person whose application is refused. Measures are being taken to improve decision-making. That said, as long as TR volumes are increasing, we will likely continue to see a corresponding increase in TR litigation.
• Mandamus: The significant increase in mandamus litigation – across all business lines: TR, PR, refugee, citizenship and passport – is linked to pandemic related backlogs as well as the fact that a lot of resources were put into responding to humanitarian crisis. [Redacted]

Proposed responses (reactive only):

• With regard to Mandamus and Backlogs: IRCC has taken a number of measures and made investments to boost operational processing capacity and address backlogs, including technological improvements and hiring of new officers. We will continue to work towards achieving the stated processing standards, so that applicants can obtain an immigration decision in a timely and predictable manner.