Live-in caregivers sadly face the risk of abuse and exploitation due to their vulnerable position, an issue most commonly arising in the criminal or immigration context. A recent decision of the British Columbia Human Rights Tribunal, PN v FR and another, 2015 BCHRT 60 , addressed this issue through a human rights lens. The Tribunal allowed a complaint of discrimination and harassment from a live-in nanny who was subjected to horrific treatment by the family employing her. The decision highlights both the benefits and the limitations of using human rights law to redress exploitation of vulnerable workers.

Background

The Complainant, PN, was a live-in caregiver from the Philippines who worked for the Respondents in Hong Kong for a year before moving with them to Canada. The Tribunal’s account of PN’s treatment during her employment with the Respondents is harrowing: she borrowed money to pay for the training and travel necessary to obtain the job with the Respondents, and she was paid roughly $600 per week while working more than 17 hours per day. She was demeaned and berated by the wife and sexually exploited by the husband. After a year working for the family in Hong Kong, she was pressured to accompany the family to Canada, and signed a contract agreeing to repay visa and travel costs in excess of $13,000 if she changed her mind about moving with them.

In Canada, she lived with the family in a hotel suite, sleeping on a couch with no privacy. After six weeks in which the abuse and exploitation continued, she fled, moving into a women’s shelter. At the shelter, she was able to access counselling and legal representation, and brought a complaint of discrimination under the B.C. Human Rights Code.

Decision of the B.C. Human Rights Tribunal

The Tribunal found that the Complainant had been sexually harassed and exploited by the Respondents as her employer. The Tribunal held that PN’s protected characteristics were factors in this treatment:

PN is a young mother from the Philippines without supports in Canada. This gave rise to a situation where it was possible to take unfair advantage of her. The way that MR treated her and the expectations of PN working all the time at the beck and call of the respondents have their roots in her hiring from the Philippines and the factors emphasized of youth, hard work and unlikeliness to complain, which are characteristics attributed to Filipino workers by stereotype and prejudice.

The Tribunal further found that the Respondents retaliated against PN by demanding repayment of the costs of her travel to Canada, in response to the filing of the human rights complaint.

In light of the egregious nature of the discriminatory conduct, the significant impact that it had on PN, and her vulnerable position, the Tribunal awarded $50,000 in damages.

A new avenue of redress for exploited, vulnerable workers?

In addition to the exceptionally high damages award, the Tribunal’s decision is significant for its analysis of the nexus between PN’s mistreatment by her employer and her protected characteristics. The Tribunal found that PN’s status (a young, Filipino mother) created an opportunity for the Respondents to take unfair advantage of her. A similar line of analysis could potentially be applied to other categories of vulnerable workers in Canada: for example, migrant agricultural workers are often foreign nationals with precarious immigration status and limited resources. Thus, this decision could point towards opportunities for other workers to seek redress under human rights legislation when they are mistreated or exploited by their employers due to their vulnerable position.

However, the case also highlights the limitations of the human rights regime as an avenue to fight against exploitation of workers. For example, the Tribunal had no authority to grant PN immigration or employment status in Canada. Moreover, a significant portion of the mistreatment suffered by PN predated her arrival in Canada, leaving the Tribunal with no jurisdiction to award a remedy regarding those events. Thus, a human rights complaint presents a promising, but imperfect, avenue to potentially seek damages against employers who have taken advantage of vulnerable workers in Canada.

UPDATE: OPT v Presteve Foods Ltd­—another victory for exploited foreign workers

Subsequent to the decision in PN, above,  a similar case was decided by the Human Rights Tribunal of Ontario in OPT v Presteve Foods Ltd, 2015 HRTO 675 . In that case, two temporary foreign workers complained that they were subject to repeated, unwanted sexual advances and sexual assaults by their employer. They felt unable to refuse his sexual solicitations and advances because of threats that they would be returned to their home country. The employer was criminally charged in connection with these incidents and similar assaults on other workers, and pled guilty to some charges.

Like the PN case, this decision is remarkable for the exceptionally high damages award: the Tribunal found that the seriousness of the conduct was “unprecedented”, and that the complainants were particularly vulnerable due to their status as migrant workers. On the basis of these considerations, the Tribunal awarded compensation for injury to dignity, feelings, and self-respect in the amount of $150,000 to one of the workers, and $50,000 to the second.

Despite this significant damages award, this case further illustrates the inherent limitations of the human rights forum to address the broader issues facing foreign workers. Justicia for Migrant Workers intervened in OPT and asked the Tribunal to grant public interest remedies related to the temporary foreign worker program. The Tribunal’s response to this intervention demonstrates that many systemic remedies to the exploitation of foreign workers are beyond the scope of the human rights regime:

Finally, I was invited by the intervenor to make comment upon certain aspects of temporary foreign worker programs in Canada. As these programs fall within federal jurisdiction, it would not be appropriate for me to do so… I have commented in this Decision and in my decision in Peart v. Ontario (Attorney General), above, regarding the particular and special vulnerabilities of migrant workers in Ontario, especially in light of the closed work permit that requires them to be tied to one employer and so be under the constant threat and fear of losing their employment and being repatriated without reason and without any avenue for appeal or review. Dr. Preibisch testified that, in her opinion, it may be helpful to institute a registry for companies who employ migrant workers, such as the one that exists in Manitoba, and to take other steps identified by her to address the vulnerabilities of migrant workers. However, I do not have jurisdiction in this proceeding to make any such order. As a result, the intervenor’s request is denied.

[This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.]