Canadian Employment Law Today

taken from pay. ere was no documenta- ry evidence to support the cash advances. e employer argued that the lack of documentation constituted either "ad- ministrative errors, or errors made in good faith." However, the court held that the wording of the justification provisions only applies to an "error made in good faith" or "unintentional accounting or admin- istrative errors" if subsequently compen- sated for. Neither of those justifications applied in the circumstances of the case. Indeed, the court went further and held that the justification provisions must be strictly interpreted. It referred to the con- text in which the justification provisions are couched and held that the intention of Parliament in enacting the compliance regulatory scheme was to prevent abuse of highly vulnerable temporary foreign work- ers, given the tenuous circumstances of their employment which lack the normal safeguards preventing abuse otherwise available to most Canadian workers. While the court accepted that the cash advances appeared to have been made in good faith as a benefit to the workers, the problem remained that there was no evidence that they were actually provided to the foreign workers. Notwithstanding the fact that the employer had obtained a letter from one of its long-term employees confirming the foreign workers consented to the cash ad- vance and to work an extra day, the court held that the inspector's conclusions were reasonable because the evidence could not be corroborated because the foreign work- ers were no longer in Canada. e court added that cash is not normally used for transactions in a business setting in Canada or to pay wages. e court also found that it was rather unusual for an employer to give cash advances of $200-$250 to 20 employ- ees without any documents to support it. e court also noted, as an observation, that cash transactions are to be avoided almost universally in an employment con- text, as they are not verifiable and, there- fore, raise a higher standard of corrobora- tion with a higher onus on the employer. Retention of documents required e court noted that the regulations re- quired the retention of documents for a period of six years. at requirement re- flected the longevity of the period during which investigations may be carried out. erefore, documented information is by far the most reliable evidence over extend- ed periods of time. With regards to the issue of foreign workers working seven days a week, the court noted that the SAWP contract stipu- lated that foreign workers could only work on their day off if there was a situation of urgency to finish farm work which could not be delayed. ere was no evidence of urgency in this case. Further, the court expressed its view that changing working conditions to allow workers to work seven days a week should not be seen as a good faith justification. e court held that "an unremitting work schedule while working in Canada cannot be presented to be in the best interests or desires of all workers even if they were to consent to it. Such a practice is not to be condoned under Canadian em- ployment and labour laws." e court also held that even if the employees consent to work nonstop over an extended period of time, it was not unreasonable to conclude that, given the power imbalance in fa- vour of the employer, such consent would hardly be voluntary. In the court's view, the SAWP contract term limiting the seven- day work week to demonstrated situations of urgency should be strictly enforced. Finally, with regards to the allegation against the employer that it did not make reasonable efforts to provide a workplace that was free of abuse, the court sided with the employer. ere was no basis to support the inspector's conclusion that the employ- er did not provide a workplace that was free of abuse. Even though the employer did not have specific anti-abuse policies in place, that did not mean that an abuse situation ex- isted on the farm. at finding constituted a reviewable error and was referred back to the minister for redetermination. e court held that in so doing, it would provide the Minister with the opportunity to publish further guidelines for small employers as to what reasonable efforts regarding abuse situations are expected under the SAWP. e court was mindful of the fact that this was its first decision concerning the TFWP compliance scheme. e court was sensitive to the fact that there were consid- erable misinterpretations and mischarac- terizations based on the employer's lack of experience with the regulatory scheme. Nevertheless, the court agreed that the findings made against this employer were reasonable, that it failed to comply with its obligations under the SAWP and that it failed to provide the appropriate justifica- tion as required by the regulations. is case should be a warning to all em- ployers who employ temporary foreign workers, especially in light of the increas- ing number of inspections and audits per- formed by the TFWP. For more information see: • Obeid Farms v. Canada (Minister of Employment and Social Development) 2017 CarswellNat 815 (F.C.). Canadian HR Reporter, a Thomson Reuters business 2017 November 8, 2017 | Canadian Employment Law Today ABOUT THE AUTHOR SERGIO R. KARAS Sergio R. Karas, the principal of Karas Immigration Law Professional Corporation, is a Certified Specialist in Canadian Citizenship and Immigration Law by the Law Society of Upper Canada. He is Co-Chair of the ABA Canada Committee, Section of International Law, Past Chair of the Ontario Bar Association Citizenship and Immigration Section, Past Chair of the International Bar Association Immigration and Nationality Committee, and editor of the Global Business Immigration Handbook. He can be reached at (416) 506-1800 or karas@karas.ca. CREDIT: PETE SPIRO/SHUTTERSTOCK

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