Last Updated on January 24, 2019
A husband and wife owning two chain restaurants in Labrador have launched a constitutional challenge against Ottawa’s move to restrict them from hiring foreign workers and place their business on an online blacklist.
In 2013, Jeff and Miriam Staples, who own Jungle Jim’s Restaurant and Greco Pizza franchises, had made five labour market opinion (LMO) applications to hire about 20 migrant workers. But three of their applications which had been approved in October last year were suspended by Employment Minister Jason Kenney earlier this year.
The couple’s challenge is the first legal action against the federal government’s revamped temporary foreign workers program ever since the new enforcement measures were introduced to address the public outrage over alleged abuse of the program by Canadian employers.
In case the challenge is successful, the federal court might strike down the new measures, which also include a ban on hiring foreign restaurant workers in areas where unemployment is above 6% and force the government to reconfigure the controversial migrant workers’ program.
Though the couple were informed about the suspension, they were unaware that Kenney had also published their company names on his website. “Canadian employers need certainty to enable them to order their affairs. That their LMOs may be suspended based on what may be an ever-changing version of public policy considerations is unfair, and leads to what the Supreme Court has termed a ‘standard-less sweep,’” they said in their claim. Allegations in the claim have not been proven in court.
“In the result, employers do not know the standards that they are required to meet in order to avoid their LMOs being suspended or revoked until after the minister publishes the information. The presumption in law is that new legislation does not apply retro-actively, unless parliament explicitly provides for this retroactive application.”
Staples’ offices were searched in the spring; documents were seized and Jeff Staples was handcuffed and later detained in a police station for many hours. No criminal or immigration charges, however, have been filed against them.
“In the Minister’s letter of 4 April 2014, the applicants were told only that there were reasonable grounds to suspect that they had provided false, misleading or inaccurate information in their LMO applications,” said the Staples in the court filing.
“They were provided no further information as to the allegations and were advised that an investigation would take place over the next 180 days.”
The couple argue that the minister must provide what is meant by “public policy considerations” in justifying the suspension of an LMO and “a civil investigation cannot be used as a foundation to discover evidence to be used in a penal proceeding.”
The Staples said both Employment and Social Development Canada and Citizenship and Immigration Canada have violated the couple’s right to “due process.” Both ministries have refused to comment because “the issue is currently before the courts.”
About 25,000 Canadian employers hire temporary foreign workers. In more than 1,100 work places, migrant workers make up almost half of all employees.
Source: The Star