2011 May - Download PDF

 

Your Labour Rights

 

On October 21 2010, our provincial government has passed the Open for Business Act which will have amendments to the Employment Standards Act. The proclamation will likely come in 2011. This is a brief summary of amendments which will have significant impact to workers.

The Minister of Labour stated there was the need to modernize employment standards due to heavy backlog and changes in the economy and labour market. Currently the Ministry of Labour receives over 20,000 claims each year and there were about 8000 claims in the backlog.

The Ministry will create a task force, aiming at resolving about 14,000 claims within two years. Another change will be modifications to intake and investigation/decision-making process. In the future, workers will be required to assert their rights under Employment Standards Act to their employer before filing their claim. Workers will be required to provide information about their self-help at-tempt though there were exceptions such as youth, insolvent employers, language barriers and abusive employers.

Workers will also required to complete information in their claim form such as self-help attempt, employee and employer contact information, description of the allegation, amount owing, dates of violation, type of work performed, documents before the claim willbe accepted by Ministry.

Another new change will be the Ministry will facilitate settle-ments, where appropriate.

Do you think these measures will help to protect your labour rights? Some community groups such as Labour Committee of Chinese Interagency Network do not agree with such changes. They said the requirements of self-help attempt and complete information for workers before they can file their claim will create additional barriers for them to attain their rights.

The biggest fear for workers is losing their job particularly under the current economic slow down situations in Ontario. The change to self-help attempt mean the worker has to confront the employer for his/her rights such as minimum wage, overtime pay, public holiday pay, vacation pay, termination pay under Employment Standards Act. And workers know very well it is the employer who don’t want to pay these to them according to Employment Standards Act and who have the power to dismiss, lay off, decrease wages and shifts, reassign job or working hours and call for unreasonable demands.

The requirement for workers to provide complete information on evidence for their claims before it would be accepted by Ministry will only place another layer of enforcement responsibility on workers. This should be the investigation function of the Ministry and should not be put as an additional hurdle for workers.

You will see these changes in 2011 and worker will have to face these new challenges when they file their claim to have their labour rights.

 

Changes to Spousal Sponsorships


Reuniting families has been one of the core objectives of Canada’s immigration legislation at least since 1978. Canadian citizens and permanent residents are allowed to sponsor close family members including their spouse and partners from overseas so long as they meet certain requirements. Family reunification is an integral part of the settlement process. Immigrants who have family support within Canada are better able to cope with challenges of migrating to a new country. Yet over the last two decades, the percentage of family class immigrants as compared to the total annual immigration intake has dropped steadily from over 50% during the early 1990s to under 25% today.

As of September 30, 2010, there has been a significant change to the spousal sponsorship requirements under our Immigration law. A Canadian citizen or permanent resident can sponsor a spouse, common law partner, or a conjugal partner provided that the sponsor meets certain requirements but in order for the sponsored person to come to Canada, he or she must show that their relationship to the sponsor, and in most cases, it is a marriage,is genuine. If the relationship
is considered “bad faith” by the visa officer, the sponsored immigrant will not be admitted to Canada.

Before September 30, 2010, the test for a bad faith relationship was if the marriage (or the partnership) was entered into primarily for the purpose of acquiring any status or privilege under the Immigration Act and it is not genuine.

However, since September 30, 2010, the test for a bad faith relationship has been changed. Instead, it now reads: if the marriage (or the partnership) was entered into primarily for the purpose of acquiring any status or privilege under the Act; or it is not genuine.

Essentially, just one word has been changed – the “and” has been changed to “or” but this one change in wording could make a difference between someone being admit-ted into Canada or rejected by Canada.

When the word “and” is used,the Court has interpreted the test to mean that, for a immigration/visa officer to find that a relationship is not genuine, the officer has to be satisfied that both the purpose of the marriage was to help the sponsored immigrant get status in Canada, AND the marriage is not genuine. This is the same test that is also being applied after a case has been rejected, and the sponsor appeals the decision.If the Immigration Appeal Division determines that the marriage was entered into for immigration purpose, but is convinced that the marriage is nevertheless a genuine one, then they will have to grant the appeal.

With this new change however, even if the Board is convinced that the marriage or the relationship is genuine, but if they also find that the purpose of the marriage was for immigration purpose, then the appeal is dismissed.

The regulations were proposed back in April, 2010. At the time, only a few organizations were aware of the proposed changes and some of them wrote to the government to object. One of the largest groups that objected to the proposal was the Canadian Bar Association, which is an organization that represents many lawyers across Canada. 

The CBA wrote to the Government and raised a number of concerns about the proposed changes. The CBA argued that changing from a conjunctive test (and) to a disjunctive test (or) will lead to illogical and discriminatory outcomes. It is illogical because even when the relationship is proven to be genuine, despite the initial purpose of the relationship, it would still be considered bad faith. One example that CBA gave is a situation involving a Canadian living abroad and end up falling in love with a foreigner. The foreigner may not be able to get visa to come to Canada unless he or she is married to the Canadian first and be sponsored. So obviously one of the main reasons to get married is so that the person can get status in order to come to Canada, but it is also obvious that the relationship is genuine.

The test is also discriminatory, as CBA has pointed out, because it will affect people who are in arranged marriages. For this type of marriage, one of the factors that the couple’s family will consider is the fact that the pros-pect has a Canadian status. In fact, that’s why some Canadians go overseas to pick a wife or a husband, because their Canadian status makes them a better prospect and they could choose a better spouse! But it does not change the fact that the marriage was entered into in a good faith manner.

However, despite the objections from CBA and other organizations, the government went ahead with the changes.

But if this is bad enough, there may be more negative changes coming.

Between September and October, 2010, CIC hosted an online consultation asking Canadians for feedback on how to stop the so-called “marriage of convenience”, supposedly targeting individuals who marry a Canadian for the sole purpose of gaining permanent status in Canada.

The survey, which ended on October 27, asked Canadians about such things as whether they believe marriage fraud is a serious problem, and what the government should do about it. All of these questions are premised upon the notion that marriage fraud is so prevalent that it warrants government intervention. The Minister has even travelled to China and India to crack down on marriage and other immigration scams. His message cannot be more obvious: immigrants from Asia are committing immigration fraud and they need to be stopped.

To further its agenda, the government has been trying to drum up public sympathy for the sponsors – most of the time men – who complain about the women whom they have sponsored using marriage as a ticket to Canada, leaving the sponsors saddled with a sponsorship debt and a broken heart.

Yet for every sponsor who feels genuinely betrayed by the person he or she has brought here, there is a sponsored immigrant – most likely a woman – who finds herself in a controlling and sometimes even abusive relationship after landing in Canada. These women are often too ashamed and mostly too afraid to speak out for fear of losing their immigration status.

Abusive partners, often men, who cry “marriage fraud” after the relationship breaks down have all the power and privilege to access support and legal assistance. Sponsored women who have been abused – on the other hand - are often isolated and alone. By characterising the problem as marriage fraud, the Government has shifted attention away from the wider systemic problem of violence against women and in so doing laid the blame on the victims.

The vast majority of the people who want to bring their families to Canada just have one goal in mind - to be reunited with their families. Yet many Canadian immigration officials (particularly those stationed in India and China) routinely treat every sponsorship application as a fraudulent case, until proven otherwise. Viewed with such biased lens, many genuine marriages are being unfairly rejected. While the
sponsors have the right to appeal that decision and they often win, the resulting delay forces a much longer period of family separation causing considerable financial and relationship stress.

The survey questions suggest that the government intends to further prolong the processing time for spousal sponsorship applications. Currently, an average application is processed in 6-12 months. Increasing this time period will create even more problems for genuine sponsors.

The Government is also considering such measures as imposing conditional visas as a way of stopping the alleged fraud. Conditional visa will essentially put the sponsored spouse on “probation” for a period of time before she is being granted permanent resident status.

Such conditional visas were once part of the immigration system. Back then, women who came to Canada as spon-sored fiancée had to marry their sponsor within 90 days of their arrival. Failure to do so would result in their status as permanent residents being revoked. In no time the requirement became a tool for many male sponsors to control the sponsored immigrant women. After years of advocacy by immigrant and women’s groups, including a Charter Challenge brought by our legal clinic, the provision was finally removed. Reintroducing conditional visas will not only set our law back 20 years, it will create a subclass of immigrant women who will have to choose between staying in an abusive relationship and facing deportation.

Marriage is never convenient, even for non-immigrants. In Canada, the majority of marriages fail and will end in a divorce. That does not mean, however, those who enter into it do so with fraudulent intent.

Canada’s immigration legislation already has provisions that can be used to charge (even criminally) immigrants for misrepresenting themselves or lying in any immigration application. If marriage fraud were indeed a widespread problem, more charges should have been laid.

Rather than proposing a one-sided solution to a problem that is multi-faceted, the government should try to facilitate immigration through other means including expanding the definition of family class and relaxing other types of immigration rules. Canada needs immigrants, and if there are more ways than one to immigrate to Canada, getting married would likely to be the last resort for most people.


CHANGES TO THE SPECIAL DIET ALLOWANCE PROGRAM


If you receive social assistance, either Ontario Works or Ontario Disability Support Program benefits, you can receive additional monies each month through the Special Diet Allowance (SDA) if you have a medical condition(s) which necessitates special dietary needs. The maximum you can receive each month is $250.00.

To apply for the SDA, you are given a form which contains a list of various medical conditions. This form has to be completed by your doctor and is then returned to OW or ODSP for them to calculate how much SDA would receive based on which medical conditions are marked off. Each medical condition is assigned a dollar value.

The Ontario government had announced last year that it would perhaps consider eliminating the SDA but it has recently been announced that it will be retaining the SDA but revisions will be made to who qualifies. Under the revised system, the list of medical conditions which warrant SDA has been modified.

The new revised SDA will take effect April 1, 2011. New SDA application forms will be available February, 2011 and will be sent to those currently receiving SDA. Payments under the current SDA schedule will continue until the end of July 31, 2011.

Since the number of medical conditions eligible for SDA has been reduced, the SDA of some recipients will be reduced.

 

SPOTLIGHT ON ARCH DISABILITY LAW CENTRE


There are about 79 Legal Clinics throughout Ontario. While most of these clinics are general clinics, in that they serve the neighbourhood area in which they are located, there are a few “specialty” clinics that only focus on a certain area law or provide legal services to communities which speak a certain language. Our Clinic is an example of a specialty clinic because we serve people from the Chinese and Southeast Asian (Vietnamese, Cambodian and Laos) communities who cannot access other legal services because of an inability to speak English.


ARCH Disability Law Centre is a specialty community legal aid clinic dedicated to defending and advancing the equality rights of people with disabilities in Ontario. ARCH works with Ontarians with disabilities and the disability community on reform and policy initiatives, community development, legal advice and referrals, public legal education and litigation.

ARCH provides free, confidential summary legal advice in areas which include abuse of people with disabilities, accessibility laws, legal capacity (the right to make your own decisions), attendant care services, discrimination/human rights, education and employment. ARCH will also provide full legal repre-sentation in certain cases. ARCH’s telephone number is 416-482-8255.

Their website is http://www.archdisabilitylaw.ca