Lawsuit citing ‘widespread exploitation’ at seafood plant signals deeper problems in migrant worker program [video]

A lawsuit launched by two Mexican workers against a New Brunswick seafood processing company signals deeper systemic problems in the Temporary Foreign Worker Program.

Juan Pablo Lerma Lopez and Adriana de Leon Silva travelled from Mexico last year to work for Pêcheries LeBreton & Fils Ltée. For both, it was their first time coming to Canada through the TFW Program.

They are now suing the company, which has operations on the Acadian Peninsula, for allegedly putting them through an ordeal that involved stolen wages and mold-infested living conditions.

The Migrant Workers Alliance for Change held a media conference outside the Moncton courthouse to announce the lawsuit on August 20. The workers experienced “widespread exploitation, mistreatment, breach of contract and bad faith dismissal,” MWAC said in a media release.

Pêcheries LeBreton didn’t respond to interview requests and hadn’t filed a response in court by Thursday. The allegations haven’t yet been tested in court.

The company was in the news last year for sending dozens of migrant workers home two months earlier than planned. In April, the feds banned Pêcheries LeBreton from hiring migrant workers for two years and fined the company $365,750 after finding that it had violated multiple rules, the largest known fine in the Temporary Foreign Worker Program’s history. The previous year, it was fined $30,000.

Yet none of those funds go to the migrant workers affected by the violations, according to Niger Saravia, an organizer with MWAC.

Saravia said many companies in New Brunswick bring in migrant workers on contracts that specify regular work hours, yet fail to pay them when no work is available. Many TFWs also rent what he described as substandard housing from the employer.

Juan Pablo Lerma Lopez, 27, one of the plaintiffs in the case, managed to obtain an open work permit allowing him to stay in Canada — under a special program reserved for workers either experiencing or at risk of abuse — following his ordeal working for LeBreton.

Speaking in Spanish outside the Moncton courthouse, he told reporters that his story reflects those of migrant workers across the country.

“I have decided to fight because I no longer want to be invisible in this society,” he said. “I do not want thousands of temporary foreign workers across Canada to remain invisible.”

Groups including MWAC have called for Ottawa to provide migrant workers with permanent resident status so they can walk away from abusive conditions.

Saravia said the lawsuit sends a message to employers: “Follow the contract, and if you don’t, migrant workers will organize in their workplaces and will see you in court.”

‘Widespread exploitation’

Lopez and De Leon Silva travelled to Canada after signing contracts stating that they would work an average of 30 hours per week for six months at $16.50 per hour, according to a statement of claim filed in court.

Based on those numbers, they expected roughly $12,800 in compensation. But after they arrived on April 23, 2023, there was very little work available at Pêcheries LeBreton, and the company eventually terminated their contracts early.

Speaking in front of the Moncton courthouse, Lopez told reporters that leaving behind his family and home in Mexico was one of the most difficult decisions he’d ever made, but he travelled to Canada “to seek what I was promised would be a better life.”

Temporary Foreign Workers have “closed work permits,” meaning they are legally bound to a specific workplace and cannot seek employment elsewhere, except by applying for the Open Work Permit for Vulnerable Workers.

That program, introduced in 2019, has been met with criticism from advocates who say migrant workers are faced with a burdensome process to prove they face abuse, sometimes including harsh questioning from immigration officials. Holding an Open Work Permit for Vulnerable Workers also signals to future employers that the worker is a troublemaker, according to advocates.

TFWs are technically eligible to receive employment insurance during downtime, like their Canadian co-workers — they pay into the EI program through payroll deductions — but in practice, laid-off TFWs in New Brunswick have found themselves unable to receive EI benefits because they haven’t yet worked the minimum number of insurable hours. Many have turned to food banks.

And while Canadians can benefit from EI during the off-season, many TFWs return to their country of origin, making them ineligible for benefits, a recently-published Senate report noted.

Lopez and De Leon Silva eventually took small loans from Pêcheries LeBreton — $250 and $100, respectively — which they later repaid through payroll deductions, according to the statement of claim.

Lopez told reporters that equipment was also deducted from their pay, including some items they used daily. “Sometimes we have to buy this equipment on a daily basis,” he said. The company deducted boots, gloves and uniform-related expenses from their wages, according to Saravia.

The lack of work placed Lopez and De Leon Silva under a “tremendous amount of stress,” the document states. “During these interruptions in work, the Plaintiffs could not afford to buy food, pay their rent, or send money home to their families, who were relying on them.”

The document filed in small claims court asks that Lopez and De Leon Silva receive about $7,400 and $6,500 in lost wages, respectively, and $12,500 each for pain and suffering.

Substandard housing, alleged reprisal

The statement of claim also outlines what former LeBreton employees have described as substandard accommodations that were mold-infested and overcrowded. The company housed Lopez in a small motel room shared with two other LeBreton employees. He paid $300 per month, the document states.

“There was not adequate ventilation,” Lopez told reporters. “Our clothes, our food were infested with mold due to humidity.”

He added that workers had very little access to laundry facilities, even though working at the seafood plant left their clothes dirty and foul-smelling. “Bad odours were often unbearable,” he said. And although housing conditions were poor, the company carried out frequent inspections without prior notice, sometimes at night, according to Lopez. “We had no privacy.”

Canada’s TFW program requires employers to provide adequate housing, either at no cost or limited cost. Substandard housing is a well-documented problem for temporary foreign workers.

The lawsuit also describes the “bad faith manner of dismissal” that workers experienced following weeks of unemployment. The company had brought in about 80 workers from Mexico and the Philippines, and in mid-July, 49 of them learned they were being terminated and sent home early, the document states.

The plaintiffs, Lopez and De Leon Silva, weren’t part of that first wave of terminations, but they had no work hours during that period. In late July, one of their co-workers sent a letter to Pêcheries LeBreton, on behalf of the remaining TFWs, expressing “the stress and hardship caused by the shortage of work.”

In response, Pêcheries LeBreton agreed to waive rent for the month of July, provide loans to workers in need, and arrange for travel to their home country if they wanted to leave, the document states.

Lopez and De Leon Silva eventually resumed work in mid-August. But just days later, on August 18, the company’s human resources manager visited their dwellings to distribute termination notices.

The workers were offered two options, according to the lawsuit. They could return to their country of origin immediately, in which case the company would cover transportation costs and the workers would “remain eligible to reapply for a position” with the company the following year.

Or they could remain in Canada, but would have to submit a resignation letter by the following day. Their health insurance coverage would end on the date of this “forced resignation.” And they would have to vacate their dwellings within a week.

Under their employment contracts, the company was already required to pay for transportation and to provide at least a week’s notice, the documents states.

“That brutally hit my self-esteem because they wanted me to return without money and with a debt,” Lopez told reporters, adding that he spent his savings waiting for the downtime to end. “I felt used.”

Workers ‘stranded’

After receiving the notice of termination, some 25 migrant workers met with organizers from the Migrant Workers Alliance for Change on a video call. Pêcheries LeBreton caught wind of the call, according to the statement of claim.

Meanwhile, the TFWs appointed one of their co-workers, Javier Montano, to speak on their behalf, and a meeting took place with several company officials on Aug. 19, 2023. Montano told the employer that the workers hoped to be fully compensated under the terms of their contracts.

“LeBreton’s representatives said they were not obligated to compensate the workers,” the document states. “They offered instead that workers would be paid for their final week of work… and would not have to pay rent in August.”

That day, company representatives arrived at the workers’ living quarters to remove company vehicles “which the Plaintiffs relied on to get groceries, go to work, or leave the premises for any reason,” the lawsuit states. “They were virtually stranded.”

And the TFWs learned that the company had “told other employers that the workers were prohibited from working elsewhere, and that [local employers] should call immigration if approached by any former LeBreton migrant workers,” the lawsuit states.

Altogether, these developments gave the TFWs the impression that the company was retaliating against them for getting organized, the document states.

Ultimately, Juan Pablo Lerma Lopez successfully applied for an Open Work Permit for Vulnerable Workers. He kept living at the motel until he received the permit several weeks later.

Lopez told reporters that he found a good job in Ontario, but had to leave when his open work permit expired. By late August 2024, when the media conference took place, he was once again looking for work in New Brunswick under a closed work permit.

As for Adriana de Leon Silva, she “felt she had no choice but to sign the resignation letter,” and returned home to Mexico, according to the document.

‘Breeding ground for contemporary forms of slavery’

The federal government states that TFWs have the same rights as Canadians, but the inequalities are often stark.

In May, a Senate committee published a study that recommended a phasing-out of employer-specific work permits over three years. But it stopped short of calling for open work permits, saying instead that Ottawa should look into region- or sector-specific permits. The federal government has signalled that it’s leaning towards that approach as part of a planned overhaul of the program.

Members of a Senate committee met with Pêcheries LeBreton workers as part of a fact-finding mission to New Brunswick and P.E.I. last summer. The workers reported incidents of racism, sexual harassment, inadequate housing and other issues.

More recently, a report by the UN Special Rapporteur on Contemporary Forms of Slavery called the TFW program a “breeding ground for contemporary forms of slavery.”

The Special Rapporteur disagreed with the Senate Committee’s recommendation on work permits, noting that “since employers within specific sectors often know one another, workers with sectoral permits that attempt to change jobs may not be successful due to stigmatization. The best approach is to give workers the freedom to choose their own employers in any sector.”

A xenophobic backlash against migrant workers, immigrants and refugees linked to far-right political movements and a rise in hate crimes has gained steam with the cost-of-living crisis in Canada.

This kind of scapegoating occurs periodically during times of crisis, with examples going back to racism against Chinese labourers in the early 1900s, said Vasanthi Venkatesh, a professor specializing in labour migration in the faculty of law at the University of Windsor

“When there’s a crisis in the country, for example, with homelessness, with unemployment… The bogeyman that is found is in the migrant worker,” she said.

On Sunday, rallies are planned in eight cities across Canada, including Moncton, to demand “equal rights and permanent resident status for all migrants and rejecting the racist scapegoating of migrants for the housing, healthcare, and affordability crises.”

Lawsuit ‘extremely rare’

Exploitative conditions are common in the TFW program, but it’s “extremely rare” for migrant workers to sue their employers, said Vasanthi Venkatesh, a professor in the faculty of law at the University of Windsor. She runs a legal clinic in Ontario for migrant workers with the volunteer-run group Justicia for Migrant Workers.

Considering that New Brunswick has a relatively small population of TFWs compared to larger provinces like Ontario and B.C., it’s significant that a lawsuit alleging “such egregious conditions” has come forward in New Brunswick, she said.

Very few resources exist for migrant workers to launch legal action, so the case indicates substandard working and living conditions for TFWs in New Brunswick more broadly, she said.

The Madhu Verma Migrant Justice Centre, which runs the only legal clinic for migrant workers in New Brunswick, said it supported more than 100 TFWs in less than a year of existence.

That includes support “ranging from applying for Open Work Permits for Vulnerable Workers to temporary resident permits for human trafficking and family violence.”

New Brunswick businesses have become increasingly reliant on migrant workers in recent years. Between 2017 and 2020 there were fewer than 3,000 TFWs working in the provincial agriculture and agri-food sectors annually, according to Statistics Canada.

That figure has more than doubled to reach 6,268 by 2023, according to the latest estimates. The largest growth by far is in seafood processing, with 931 TFWs working in that sector by 2020, compared to an estimated 2,013 by last year.

Full disclosure: NB Media Co-op coordinating editor Tracy Glynn is a board member with the Madhu Verma Migrant Justice Centre.

This story was updated with video on Sept. 18, 2024. David Gordon Koch is a journalist with the NB Media Co-op. This reporting has been made possible in part by the Government of Canada, administered by the Canadian Association of Community Television Stations and Users (CACTUS).