Canadian Employment Law Today

November 27, 2013 CASE IN POINT: IMMIGRATION Sushi restaurant owner convicted of illegally employing foreign workers Workers without work permits were paid less than others; appeal court overturns conditional discharge for $15,000 fine | BY SERGIO KARAS | THE MANITOBA Court of Appeal has levied a substantial fine against a sushi restaurant owner who had received a conditional discharge and probation after pleading guilty to one count of illegal employment of six foreign nationals at his sushi restaurant, contrary to the Immigration and Refugee Protection Act (IRPA). With this decision, the court has sent a strong warning to employers across the country against employing foreign workers without obtaining the appropriate work permits. The accused, Jung Won Choi, 57, owned a sushi restaurant in Winnipeg. As a result of an investigation conducted by Canada Border Services Agency (CBSA), it was discovered that several South Korean nationals were employed without the appropriate work permits in 2008 and 2009, and were being paid lower wages than other employees of the restaurant. Choi pleaded guilty to one count under the IRPA, which prohibits the employment of a foreign national in a capacity in which she is not authorized to be employed. At trial, the Crown sought a conviction and substantial fine under the IRPA, which allows a fine of up to $50,000 or imprisonment for up to two years — or both — for such an offence. There is no minimum penalty set out. Conditional discharge included charitable donations Despite the Crown's submission, the sentencing judge imposed a conditional discharge for 18 months, which included supervised probation as well as meeting certain conditions — one of 4 which was that Choi must make charitable contributions of $6,000 each to two organizations that assist immigrants. The Crown appealed the sentence. The Manitoba Court of Appeal had to decide two issues: first, whether the sentence imposed was appropriate and, second, whether the sentencing judge could order Choi to make charitable donations as a condition of the probation order. The appeal court noted the IRPA creates a regulatory scheme that applies to what is known as the "worker class" — foreign nationals who may work in Canada for a set period of time specified in their work permits before returning to their home country. Through the Temporary Foreign Worker Program, employers are allowed to recruit and employ foreign workers to meet temporary labour shortages after obtaining Labour Market Opinions from the Department of Human Resources and Skills Development Canada (HRSDC), which subsequently entitles a foreign national to apply for a work permit. The court noted that the CBSA investigation determined several Korean nationals attempted to enter Canada by indicating they were coming to visit Choi and to "help out" in his restaurant, but did not have the appropriate work permits. In one case, the foreign national was apparently compensated with housing and a lump-sum payment on his return to South Korea. The investigation also disclosed that Choi maintained two sets of books in which he distinguished, by way of wages, employees with or without work permits. Lower wages were paid to workers without work permits. In fact, the same individual received a lower wage when working for the accused without a work permit than after obtaining one, although in both cases he was doing the same work. One of the six foreign nationals, who did not have a work permit, never received any payment directly — it went to his mother. The court noted that while working without work permits, foreign workers have no access to workers compensation benefits, employment insurance or health care. In addition, Choi did not remit income tax or other deductions to the government in respect of employees who did not have work permits. The Crown asserted that the sentencing judge committed an error in principle by imposing, as part of the conditional discharge sentence, a punitive condition in the probation order — the two charitable contributions. In essence, the condition was inappropriate because the sentencing judge should have imposed a fine instead. The Crown argued the lack of rationale as to why the sentencing judge imposed that punishment while at the same time granting a conditional discharge made the sentence unfit. It also contended that a conditional discharge with probation is unfit given the circumstances of the offence, and the sentencing judge erred by minimizing the importance of the principles of general deterrence and denunciation that would be appropriate in respect to the offence. The Crown argued that the appropriate sentence would have been a conviction and a fine, as the illegal employment of foreign nationals was wilful and occurred over a period of time. The illegality was a business prac- Published by Canadian HR Reporter, a Thomson Reuters business 2013 Continued on page 5

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