As reported by the CBC, more than 100 migrant agricultural workers from Trinidad and Tobago have been stuck in Canada and can’t get home because of COVID-19 concerns. They now have to endure the Canadian winter with no access to any kind of income support. Justicia for Migrant Workers sent the following letter to hold decision-makers accountable. We invite you to do the same — feel free to adapt our letter and use the email addresses below.

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Open Letter re: Stranded Migrant Workers from Trinidad and Tobago

TO:     The Honourable Ahmed Hussen, Minister of Families, Children and Social Development (Ahmed.Hussen@parl.gc.ca)

The Honourable Marco Mendicino, Minister of Immigration, Refugees & Citizenship (Marco.Mendicino@parl.gc.ca)

The Honourable Carla Qualtrough, Minister of Employment, Workforce Development and Disability Inclusion (Carla.Qualtrough@parl.gc.ca)

December 7, 2020

Dear Honourable Ministers Hussen, Mendicino, and Qualtrough,

In March 2020, when the pandemic hit the world, your government deemed foreign seasonal farm workers to be essential and took exceptional steps in getting the workers into Canada from the Caribbean and Mexico. You then made them work under hazardous conditions with minimal support, all to ensure that Canadian farmers could make profits and so Canada gets local food on the table. Now, when they are no longer needed by the farmers because of the weather, you have abandoned these racialized migrant farm workers.

Hundreds of workers from Trinidad and Tobago have toiled through the harvest this year through the Seasonal Agricultural Work Program (SAWP). Their contracts have now come to an end as their services are no longer needed in winter. These workers are unable to go back home to their families because of COVID concerns. They are stuck here in the Canadian cold with no form of income support and no assistance of any kind from your government. They have to pay for rent, for food, for clothing and all basic necessities with no income.

Their situation is particularly unconscionable because these workers are eligible for Employment Insurance as per the regulations, which they have paid into during their service for your country, and yet Service Canada refused to use their discretion in granting them the benefits (Phone call meeting between J4MW and Service Canada December 4, 2020).

Service Canada went so far to advise that the workers should pay the fees for their work permits, even though, as per IRCC directives for seasonal farm workers and the interstate bilateral agreements, it is the employer that pays for the work permit. At the same time, migrant workers who do hold a valid work permit and have already submitted their applications for EI have received negative decisions from Service Canada, stating that because they hold a closed work permit, “they are not ready and available for work”.

In De Jesus v. Canada (AG) 2013 FCA 264, a case that dealt with parental EI benefits, the Federal Court of Appeal stated:

[13] The unique disadvantages in the Canadian labour market of agricultural workers as a whole, and migrant workers in particular, are well known. These disadvantages commonly include: ineligibility for many social benefits, including most unemployment insurance benefits; exclusion from many statutory protections of workers (including representation by a union); low educational level, functional illiteracy, and lack of knowledge of English or French; social isolation, and lack of access to telephones, computers, and urban centres; long and arduous working schedules with little free time; and fear of employer reprisal and deportation

[14] Like other employees, SAWP workers have employment insurance contributions deducted from their pay cheques. Unlike most other employees, however, they are generally ineligible for benefits, including regular employment insurance benefits, because they leave Canada at the end of their seasonal employment, and cease to be available for work or present in Canada. [emphasis added]

The SAWP workers are currently present in Canada and are therefore eligible for regular benefits as per the reasoning of the Federal Court of Appeal.  Yet, Service Canada refuses to grant them EI benefits by foisting the blame on IRCC/ESDC.

Furthermore, the Principles of Benefit Entitlement clearly states that

[A] claimant who does not currently possess a work permit is not automatically considered unavailable for work. In some cases, the claimant may be able to obtain a work permit as soon as employment is secured, because of the type of work they perform, or because of the individual’s skills. Consequently, the lack of a work permit is not the only factor to be considered when determining availability. The Commission must take into account all factors normally considered when determining a claimant’s availability.

[Digest of Benefit Entitlement Principles Chapter 10 – Section 10.2.4]

In many cases, the Tribunal has found that if the worker has taken “prompt and reasonable steps” to search for work and obtain employment, especially under circumstances beyond their control, they are eligible for EI even if their work permit has expired (See e.g. O. O. v Canada Employment Insurance Commission, 2019 SST 868; Canada Employment Insurance Commission  v. L.B., AD-13-1140).

Service Canada’s fettering of their discretion, in the face of precedent and their own principle, is a grave injustice and a perversion of the rule of law. These Trinidadian workers have gone above and beyond in taking “prompt and reasonable steps” to obtain status in Canada, even under the most extenuating circumstances beyond their control, and in fact beyond the control of the entire world as the battle against the pandemic continues. They are stuck in Canada because they are being prevented from traveling due to the pandemic.

In their desperate situation, they have pressured their government to send directives to their employers to process their LMIAs (which allows them to get a work permit) and to ask ESDC and IRCC to process them at the earliest (Notice from the Government of Trinidad and Tobago to employers, December 1, 2020). They have tried to find employers who can process their LMIAs. They have sought support for accessing benefits. As such, they have done everything humanly possible in this unforeseeable situation to show they are searching for work and are available for work. They are being made to endure circumstances that simply should not be tolerated in Canada. It is unconscionable that Service Canada is not responding to the situation and providing them with prompt benefits.

The Tax Court of Canada, in a case concerning Guatemalan workers in the agri-food industry, has held that the employment contracts of foreign workers are valid and the workers are eligible for employment insurance even if they do not comply with the work permit (Godoy Enriquez v. M.N.R., 2019 TCC 114).  The Court found that “the prohibition on work by foreign nationals without a permit is intended primarily to protect job opportunities for Canadian citizens and to prevent collective bargaining from being obstructed by the hiring of foreign nationals.” [(para 85)]. The Court stated that as per Canada’s obligation under international instruments, such as the International Covenant on Economic, Social and Cultural Rights, Canada has an obligation to protect the rights of workers to social security, including employment insurance (paras 91-93). Thus, according to the Court’s reasoning, the interpretation of IRPA, taking into account its objectives and principles, mandates that workers cannot be denied their right to EI and other benefits.

The Court further affirms that migrant farm workers “are a beneficial and critical human resource for both the economy and the greater good of all Canadians” (para 95), “an enrichment, and even a fundamental necessity to the stability and development of Canada’s agri‑food industry” (112) and that it is “a matter of general interest for Canadian society” that their important contribution to the Canadian economy be recognized and it is “unacceptable” to exclude them and abandon seasonal workers (paras 95, 14 emphasis added). The Court asserted that “it is urgent and imperative that the government… respond to seasonal workers’ problems and concerns before they arrive, upon their arrival and throughout their time in Canada” (para 14 emphasis added).  It is therefore appalling that Service Canada has instead abandoned them in the midst of a pandemic and the onset of winter.

Honourable Minister Hussen, you personally have strongly come out against Anti-Black racism and systemic racism within Canada’s borders. You said: “… the sooner we acknowledge [systemic racism], the sooner we amplify the voices of those who feel that sting of discrimination of racism as part of their lived reality, the sooner we’ll be able to tackle it and to eradicate it [Toronto Star, June 3rd 2020].” Yet, the very Ministry you lead, practices and embeds systemic racism against Black and racialized migrant workers, by discriminating against them and denying them the benefits they are entitled to, that they have paid into, during their time doing essential farm labour in Canada. We urge you to acknowledge the discrimination they face.

Honourable Ministers, the workers cannot wait anymore, insecure and without income, as you play jurisdictional football with them. We demand that you make the decision to pay the workers who are currently in Canada Employment Insurance benefits before December 10th. Any further delay is an abuse of process, abuse of discretion, and denial of natural justice.

Honourable Ministers Qualtrough and Mendicino, you have made the workers wholly reliant on their employers by making the work permit conditional on LMIAs. You have not even exempted the work permit processing fees. These workers are being forced to spend precious holiday time in Canada far away from their families, in the Canadian winter, with no income, no shelter, no clothing.  Instead of showing gratitude and compassion you have made the situation into a travesty where in their time of need, the workers are put in a worse situation of oppression and disempowerment. How are you even justifying your action? We demand that the stranded workers be immediately given open work permits,  with no conditions of requiring LMIAs to work in Canada and with no repercussions or administrative hurdles that would affect their future return to Canada.  We demand that the permit fees be waived for these workers. We also demand that they be given permanent residence status.

This incident concerning the Trinidadian workers cannot be seen as an isolated, unfortunate event; it is the outcome of a system of discrimination and oppression that is perpetuated by Canada’s Temporary Foreign Worker programs in agriculture.  Migrant agricultural workers are crucial to the functioning of the agricultural industry functioning. Many of these workers have been returning to work at the same farm each year, for many years. It is estimated that SAWP workers pay an estimated $21.5 million annually in EI premiums and have paid billions of dollars into EI since 1966, which have supported Canadian workers for decades, even as your Ministries exclude them from ever availing of the benefit through the application of discriminatory and racist regulations. The people who grow our fruits and vegetables, the people who put food on our tables, should not face perpetual impoverishment because of an unpredictable climate, and even more so, during a pandemic. We cannot simply ignore their calls for justice. Do you find it easier to do so because they are “racialized foreign migrant workers” who the government has wilfully invisibilized?

The legacy of colonialism continues to drive thousands of migrants to Canada in search of work, who your government takes advantage of, thus perpetuating colonialism and racism. In fact, just last week, the Federal Government has increased the program by expanding the definition of Primary Agriculture. This expanded definition implies that you will be excluding greater numbers of racialized migrant farm workers from basic employment standards and benefits, even as they contribute billions of dollars to the economy and revenue. This racial apartheid cannot continue.

We therefore call on the government to:

1. Reverse all decisions denying regular EI benefits to migrant farm workers, that were made on the basis that they were unavailable to work because of their work permit status. Award benefits to all workers who have applied immediately;
2. Remove the conditions predicating access to regular EI benefits on their work permit and their physically being in Canada. Provide equal access to the regular employment insurance benefits for migrant workers, after they go back to their countries, through the development of interstate agreements between the governments of Canada and the countries from which migrant workers originate. This access can be modelled on similar agreements that already exist with the United States and inter-state agreements globally;
3. Restore migrant workers’ access to special EI entitlements including parental, maternity and compassionate benefits;
4. Provide migrant workers with access to training and education and all social and income benefits in Canada and when they are back in their home countries;
5. Waive all fees for applications for work permits for farm work.
6. Provide all workers arriving in Canada under SAWP or the Agricultural Streams with open work permits that are not dependent on LMIAs.
7. Provide them with permanent residence status on arrival.

Justicia for Migrant Workers (J4MW)