Caregiver Access to Justice in Canada: Addressing the Challenges Faced by Migrant Workers
Travis DodsFriday, July 19, 2024
Introduction
Canada has long relied on migrant workers to fill gaps in the labour market, particularly for jobs related to domestic work.[1] Since the end of the Second World War, tens of thousands of individuals, predominantly women from the Global South, have come to Canada to fulfill vital caregiving roles. As of 2021, there are approximately 25,000 migrant caregivers in Canada.[2]
Migrant caregivers are indispensable to Canadian families, providing essential care for children, the elderly, and individuals with disabilities. Indeed, care work is fundamental to the functioning of the Canadian economy, enabling many Canadians, especially women, to participate in the workforce while ensuring quality care for their loved ones.[3]
Despite their invaluable contributions, these workers face significant barriers to accessing justice and securing their rights. This blog post delves into the importance of migrant caregivers in Canada, the challenges they face, and the urgent need for reforms to ensure equitable treatment and access to justice.
Timeline of Caregiver Programs
Historically, Canada’s immigration policies have included pathways for caregivers to fill labor shortages in the domestic work sector unattractive to native-born workers.[4] However, these policies have often created precarious conditions that enable exploitation and abuse.
Canada’s current Temporary Foreign Worker Program allows families to hire foreign caregivers when facing short-term skills and labour shortages, provided no Canadians or permanent residents are available. Caregivers must work full-time in the private household where care is needed and meet specific requirements set by Employment and Social Development Canada (ESDC) and Immigration, Refugees and Citizenship Canada (IRCC).[5]
The Live-In Caregiver Program (1992-2014) allowed workers to come to Canada with employer-restricted work permits, requiring them to live with their employers and work in in-home or child care. Applicants needed a high school diploma and Canadian Language Benchmarks (CLB) Level 3 English or French competency. After 24 months of work within four years, they could apply for permanent residency (PR). Although the LCP closed to new applicants in 2014, it remained a pathway for those already enrolled. [6]
The Caring for Children or People with High Medical Needs Program (2014-2019) allowed workers not under the Live-In Caregiver Program to apply for PR if they met certain requirements. Applicants had to complete 24 months of in-home or child care work and needed at least one year of post-secondary education (or equivalent) and CLB Level 5 language competency, stricter language and education requirements than the previous program. Annual PR applications were capped, revoking guaranteed PR for caregivers completing the required work hours. Furthermore, despite removing the live-in requirement, most workers still lived with employers.[7]
The Home Child Care Provider Pilot and Home Support Worker Pilot (2019-2024) aimed to provide a “clear, direct pathway to permanent residence.”[8] Applicants needed a valid job offer, CLB Level 5 competency in English or French, Canadian educational credentials of at least one year post-secondary education (or equivalent abroad), and a minimum of 24 months of full-time employment in either child care or as a home support worker.[9] Despite promises of efficiency, the programs faced significant delays and issues. The programs faced long processing times, confusion over requirements, and barriers like the high education and language benchmarks, making PR more difficult to achieve.[10] Only 5,700 caregivers and their families obtained PR from 2019 to 2024, far below the proposed target of 5,500 a year.[11] Additionally, processing rates were significantly low, with only 16% of applications processed by March 2023.[12]
Challenges and Vulnerabilities
Due to their status, migrant caregivers are highly vulnerable to unfair working conditions with few protections. Without the protections available through PR or Canadian citizenship, caregivers often endure low wages, excessive hours, isolation, violations of privacy, inadequate food and accommodation, and various forms of abuse.[13]
Employer-Worker Power Imbalance
As per the 2019 caregiver pilot programs, caregivers must accumulate 12 months (changed from 24 months in April 2023) of authorized work to apply for PR status.[14] Leaving their employment can delay or jeopardize their eligibility, as they depend on their employers to submit the necessary employment records. This dependency discourages caregivers from leaving their jobs, requesting better wages or conditions, filing complaints, or reporting abuses. Surveillance, isolation, and control over personal finances and confiscated documents further limit their freedom. The fear of losing employment and housing, along with the totalitarian control exerted by employers enabled by Canada’s immigration rules, forces workers to accept exploitative conditions, leaving them vulnerable to financial, physical, and psychological abuse.[15]
Live-in Caretakers
Live-in migrant care workers are particularly vulnerable to abuse and exploitation due to the invisibility of their labour in private settings and poor regulation of employers. Despite the removal of the live-in requirement in 2014, the majority of caregivers still reside with employers due to economic necessity (high living costs and low wages) and employer preference.[16] This arrangement blurs the line between work and private life, exacerbating power imbalances. Live-in migrant caregivers also face limited access to education and training, severe housing instability if dismissed, and the psychological burden of geographical and social isolation and lack of privacy and autonomy. They also often forgo necessary healthcare, have on-call expectations, and work beyond contracted hours without proper compensation or accurate work records.[17]
Delays and Backlogs
The pathway to PR for migrant caregivers is fraught with delays and bureaucratic hurdles. Migrant caregivers face chronic uncertainty, prolonged family separation, precarious employment, and economic insecurity due to long PR processing times.[18] A cap on applications exacerbates delays, placing caregivers and their families in limbo. The post-COVID backlog of over 12,000 applications forces caregivers to remain in their jobs,[19] with some waiting over five years and dealing with repeated renewals and administrative errors.[20] These conditions can lead to increasing levels of separation and vulnerability, with long-term negative impacts on caregivers’ well-being.
COVID-19
The pandemic intensified the vulnerability and mistreatment of migrant care workers. Many employers overworked and underpaid caregivers, restricted their movement, and forced them to work while sick.[21] Furthermore, over a third lost their jobs and housing, and many could not access income support like CERB or EI.[22] Those who continued working often did so for excessive hours without pay. The situation exacerbated family separations, with many workers unable to send remittances home or reunite with family.[23] Pandemic conditions also significantly extended the already lengthy process for PR applications and new work permits, causing prolonged uncertainty and stress.
Intersectionality
Migration experiences are not gender-neutral; women migrants, often employed in marginalized and informal sectors, face higher risks of abuse, limited legal protection, and obstacles to accessing justice due to structural discrimination and inequality.[24] Despite usually being well-educated,[25] migrant caregivers are de-skilled and undervalued, reinforcing their subordinate position in labour hierarchies.[26] The intersection of systemic racism and gender-based discrimination makes migrant caregivers, who are predominantly racialized women from the Philippines and the Caribbean, especially vulnerable to exploitation and abuse, including physical, emotional, and sexual abuse. Access to remedies and support is also limited, with women facing additional barriers due to isolation, cultural stigmas and fear of reprisals.[27]
Access to Justice Issues
Access to justice—understood here to mean the ability of all individuals and communities to obtain fair, effective, and timely resolution to their legal issues—is essential for realizing human and labour rights for everyone, ensuring equal treatment and protection under the law without discrimination.
While migrant workers formally possess the same employment rights as citizens, their ability to exercise these rights and seek redress is limited, leading to unreported workplace rights violations and abuses. Ensuring the rights of migrant caregivers requires governments to guarantee their access to justice through the elimination of barriers such as lack of information, lack of accessibility to services, and fear of consequences.
Lack of Information
Significant gaps in legal information delivery impede migrant caregivers’ access to justice, as many are unaware of how to obtain necessary and accurate knowledge about their immigration status, legal rights, and available services.[28] Employers can exploit this misinformation by threatening non-payment of wages, deportation, and other forms of intimidation. Workers often remain uninformed about their rights and how to enforce them due to insufficient access to legal information. This lack of access to legal information is compounded by the inadequate provision of orientation, language training, and legal support.
Lack of Accessibility to Services
Reports have identified several unmet needs for migrant workers in Canada, particularly the lack of adequate services tailored to their circumstances.[29] Many social services are particularly inaccessible for those in caregiver programs due to policies excluding temporary foreign workers, services operating only during caregivers’ working hours, geographic isolation, procedural complexities, language difficulties, limited availability of free or low-cost assistance, and the aforementioned misinformation or lack of knowledge.[30]
Fear of Consequences
Migrant caregivers, among other temporary foreign workers in Canada, face significant barriers in asserting their legal rights because they are tied to work permits and ambiguous immigration status, creating conditions of precarity. Many are reluctant to file complaints and report violations for fear of losing their jobs and homes, as their work permits make them highly dependent on their employers.[31] The power imbalance and resulting hesitancy among caregivers to enforce their rights are exacerbated by the lengthy process of finding new employment and the fear of deportation. Workers are further discouraged from seeking legal recourse, despite knowing their rights, due to the isolation of living in employer-provided housing and the fear of retaliation and ostracization from their family or community.[32] This fear of consequences, coupled with a lack of legal information, resources, and accessible support services, means that many caregivers simply endure unlawful conditions, perpetuating a cycle of exploitation and abuse.
Solutions
Caregiver Program Solutions
“The permanent solution is permanent residency”[33]
To address the failures of previous migrant care worker pilot programs, advocates recommend a program that grants PR upon arrival for caregivers and their families. The call for “status on arrival” is supported by numerous grassroots and advocacy groups, emphasizing the need for a single-tier immigration system that provides PR to all migrants upon arrival, ensuring their rights and protection against labor exploitation. This policy would allow caregivers to leave abusive jobs, access healthcare, support family reunification, and meet Canada’s labor needs.[34]
Several other changes have been proposed to improve the government’s caregivers programs to better protect migrant caregivers:
Language and Education Requirements
An ideal caregiver program should reduce the stringent language and education standards.[35] Advocates argue that the requirement for a second English test for PR is discriminatory and unnecessary and the need for one year of Canadian post-secondary education is overly costly and challenging for workers to attain.[36]
Open Work Permits
A transition to open work permits would allow workers to leave abusive employers and avoid the pitfalls of the tied work permit system.[37]
Permanent Program
Transitioning the migrant care worker pilot programs to a permanent immigration program would prevent undue burdens on migrant caregivers due to changing policies.[38]
Remove In-Home Requirements
The requirement for care to be provided in the home should be eliminated, allowing home support workers and childcare workers employed outside private residences to be included in pathways to PR.[39]
Removal of Caps
The elimination of annual application caps for PR from foreign caregivers would help end the current backlogs and reduce the amount of time that workers remain “in limbo”.[40]
Access to Emergency Income
Workers under migrant care worker programs should be eligible for emergency income support, such as CERB or EI, especially due to delays in work permit and PR processing.[41]
Access to Justice Solutions
Increasing Accessibility to Information
To better support migrant workers such as migrant caregivers, it’s essential to provide comprehensive information about laws, regulations, and policies, including program rules, employment rights, and pathways to PR. Legal information helps workers identify their legal needs and access appropriate services.[42] Information should be available in multiple languages and widely accessible to workers in various locations to enhance knowledge and enforcement of legal rights. A network of government and non-government actors should work together to provide seamless access to information at all stages of migration.[43] A user-friendly, multilingual website could offer tailored legal information, a directory of service providers and legal advocates, and direct users to a dedicated hotline.[44] Written public legal information materials in multiple languages distributed pre-arrival and on-arrival, along with post-arrival orientation sessions conducted by legal advocates, would further ensure that migrant workers are well-informed and better equipped to self-advocate and prevent legal issues.[45]
Increasing Accessibility to Services
The government needs to ensure the availability of legal services and representation for migrant workers. Proposed solutions include increased funding for community legal and social supports, eliminating discriminatory program criteria, and collecting race-based data to inform policy.[46] Enhanced legal services should be provided, including mobile legal clinics, one-day courts, dedicated hotlines, and administrative mechanisms with clear timelines for mediation and legal action.[47] Migrant workers should be allowed to stay and work while their claims are resolved and the burden of proof in wage disputes should shift to employers.[48] Partnerships between legal services and community organizations, multilingual information and services, and training for community service providers are all essential.
Preventing Employer Retaliation
To address concerns about retaliation against migrant workers who file complaints, several measures have been advanced. These include passing legislation that prohibits and punishes retaliatory actions by employers, allowing workers to file anonymous complaints at dispute resolution bodies, and establishing safe houses to protect workers at risk of reprisals.[49] Enhanced inspections of workplaces and employer-provided accommodations are also recommended to address power imbalances and reduce the pressure on caregivers to self-advocate.[50] Additionally, closing legislative gaps to ensure migrant workers can seek recourse for rights violations and coordinating with provincial governments to improve the enforcement of employment standards and protections for migrant care workers are also crucial.
Conclusion
In June 2024, it was announced that new pilot programs will be introduced, offering PR on arrival for caregivers coming to Canada.[51] Unlike the 2019 pilots, these programs will also allow caregivers to work for organizations providing temporary or part-time care.[52] Furthermore, the education requirements will be reduced from Canadian equivalency of one year of post-secondary education to a high school equivalency, and the language proficiency requirement will be lowered from CLB Level 5 to Level 4.[53] These programs replace the expired Home Child Care Provider (HCCP) and Home Support Worker (HSW) pilots and may even become permanent.[54]
These changes are welcome as they address many of the program solutions mentioned above However, in the words of Cenen Bagon, from Vancouver’s Committee for Domestic Workers’ & Caregivers’ Rights: “the work is not over…”[55] Comprehensive legal and policy reforms are still needed to end tied work permits, regularize the status of undocumented workers affected by earlier flawed pilots, implement the numerous access to justice solutions previously outlined, and more.
Migrant caregivers are the backbone of Canada’s care economy, yet they remain one of the most vulnerable groups in the labour market and continue to face significant barriers to accessing justice and securing their rights. Only by addressing the systemic barriers they face can Canada uphold the dignity and rights of its caregivers, acknowledging their essential contributions to our society.
[1] In Canada, the term “migrant worker” generally refers to a temporary foreign worker on a tied or closed work permit. Migrant workers’ access to employment and other rights and government programs and services in Canada is generally limited. Migrant Rights Network, “Migrant Workers in Canada” (2015), online: <https://migrantrights.ca/wp-content/uploads/2015/10/MigrantWorkers_Backgrounder.pdf>.
[2] Canadian Labour Congress, “Human Rights Day: Canada must ratify C-189 to protect vulnerable domestic workers” (2021), online: <https://canadianlabour.ca/human-rights-day-canada-must-ratify-c-189-to-protect-vulnerable-domestic-workers/>.
[3] The Canadian Bar Association (CBA), “Re: Home Childcare Provider Pilot (HCCP) and Home Support Worker Pilot (HSWP) Programs” (2024) at 1.
[4] Sarah Marsden, Eric M. Tucker, and Leah F. Vosko, “Federal Enforcement of Migrant Workers’ Labour Rights in Canada: A Research Report” (2020) at 2.
[5] Government of Canada, “Hire a temporary worker as an in-home caregiver: Overview” (2024), online: <https://www.canada.ca/en/employment-social-development/services/foreign-workers/caregiver.html>.
[6] Caregivers Action Centre (CAC), Vancouver Committee for Domestic Workers’ and Caregivers’ Rights, Caregiver Connection Education and Support Organization and Migrant Workers Alliance for Change, “Behind Closed Doors: Exposing Migrant Care Worker Exploitation During COVID-19” (2020) at 13.
[7] Ibid.
[8] Alicia Massie, Anita Minh and Jennifer E. Shaw, “Canada’s broken promises to migrant care workers” (2024), online: Policynote <https://www.policynote.ca/care-workers/>.
[9] CAC, supra note 6 at 13.
[10] Massie, supra note 8.
[11] Ibid.
[12] Ibid.
[13] Tami Friesen, “The Live-In Caregiver Program: Inequality Under Canada’s Immigration System” (2003), online: National Association of Women and the Law <https://nawl.ca/the-live-in-caregiver-program-inequality-under-canadas-immigration-system/> and Rupaleem Bhuyan, Lorraine Valmadrid, Esel Laxa Panlaqui, Novabella L. Pendon, and Pearlita Juan, “Responding to the Structural Violence of Migrant Domestic Work: Insights from Participatory Action Research with Migrant Caregivers in Canada” (2018) 33(8) Journal of Family Violence at 3.
[14] Edana Robitaille, “Work experience requirement cut in half for applicants in Canada’s caregiver pilot programs” (2023), online: CIC News < https://www.cicnews.com/2023/02/work-experience-requirement-cut-in-half-for-applicants-in-canadas-caregiver-pilot-programs-0233054.html#gs.c1dh4f>.
[15] Tami Friesen, “The Live-In Caregiver Program: Inequality Under Canada’s Immigration System” (2003), online: National Association of Women and the Law <https://nawl.ca/the-live-in-caregiver-program-inequality-under-canadas-immigration-system/>.
[16] The Association for the Rights of Household Workers (ARHW), “Migrant Caregivers, Canadian Immigration Policies and Human Trafficking” (2018) at 8.
[17] Women’s Centre of Calgary, “Social Issues Discussion: Migrant Caregivers” (2018), online: <https://www.womenscentrecalgary.org/social-issues-discussion-migrant-caregivers/>.
[18] Massie, supra note 8.
[19] Rishika Wadehra, “Equal rights for migrant care workers: The case for immigration policy transformation” (2021) Canadian Centre for Policy Alternatives at 16.
[20] Rupaleem Bhuyan, Lorraine Valmadrid, Esel Laxa Panlaqui, Novabella L. Pendon, and Pearlita Juan, “Responding to the Structural Violence of Migrant Domestic Work: Insights from Participatory Action Research with Migrant Caregivers in Canada” (2018) 33(8) Journal of Family Violence at 20.
[21] Migrant Rights Network, “Petition: Clear The Caregiver Backlog! Status For All Without Exclusions!”, online: < https://migrantrights.ca/take-action/landed-status-now/>.
[22] CAC, supra note 6 at 6.
[23] Ibid.
[24] International Labour Organization (ILO), “Fair recruitment and access to justice for migrant workers: Discussion paper” (2022) at 24.
[25] According to Ethel Tungohan’s 2015 study, 86% of caregivers who are employed in the Philippines hold a bachelor’s degree. Nalinie Mooten, “Racism, Discrimination and Migrant Workers in Canada: Evidence from the Literature” (2021) Policy Research, Research and Evaluation Branch at 85.
[26] Ibid.
[27] Ibid.
[28] Bethany Hastie, “Access to Justice for Migrant Workers: Evaluating Legislative Effectiveness in Canada” (2021) at 22.
[29] Canadian Council for Refugees, “Migrant Workers: Precarious and Unsupported” (2016) at 9.
[30] Bhuyan, supra note 20 at 27-28 and ILO, supra note 18 at 25.
[31] ILO, supra note 24 at 7-8.
[32] Ibid. at 26.
[33] Sergio Arangio, “Migrant caregivers make fresh call for better immigration program” (2019), online: CBC News <https://www.cbc.ca/news/canada/toronto/migrant-caregivers-demand-better-immigration-program-1.5133168>.
[34] CAC, supra note 6 at 33.
[35] Marie Woolf, “Caregivers from abroad to be given permanent residence on arrival under new pilot programs” (2024), online: The Globe and Mail <https://www.theglobeandmail.com/politics/article-caregivers-from-abroad-to-be-given-permanent-residence-on-arrival/>.
[36] CAC, supra note 6 at 34.
[37] CAC, supra note 6 at 34.
[38] Massie, supra note 8.
[39] CBA, supra note 6 at 2.
[40] Migrant Rights Network, “Support Migrant Caregivers in Crisis”, online: < https://migrantrights.ca/take-action/pr-for-careworkers/>.
[41] CAC, supra note 6 at 35.
[42] Alexandra Rodgers, “Envisioning Justice for Migrant Workers: A Legal Needs Assessment” (2018) Migrant Workers Centre at 2.
[43] Ibid. at 49.
[44] Ibid. at 51.
[45] Rodgers, supra note 42 at 51.
[46] Wadehra, supra note 19 at 6.
[47] ILO, supra note 24 at 4 and Rodgers, supra note 42 at 52.
[48] ILO, supra note 24 at 4.
[49] ILO, supra note 24 at 4.
[50] Rodgers, supra note 42 at 52.
[51] Immigration, Refugees and Citizenship Canada, “Canada announces new pilot programs to support caregivers and Canadian families, intends to make the caregivers program permanent” (2024), online: <https://www.canada.ca/en/immigration-refugees-citizenship/news/2024/06/canada-announces-new-pilot-programs-to-support-caregivers-and-canadian-families.html>.
[52] Ibid.
[53] Ibid.
[54] Colin Singer, “Canada’s New Caregiver Immigration Pilots To Offer Permanent Residence On Arrival” (2024), online: Immigration.ca <https://www.immigration.ca/canadas-new-caregiver-immigration-pilots-to-offer-permanent-residence-on-arrival/>.
[55] Migrant Rights Network, “Release: Migrant Care Workers Welcome Permanent Resident Status On Arrival” (2024), online: <https://migrantrights.ca/release-migrant-care-workers-welcome-permanent-resident-status-on-arrival/>.