Citizenship and Immigration Committee on April 10th, 2008

[The Chair, Conservative, Norman Doyle]

Good morning, everyone. We'll call our meeting to order. I want to welcome all of you here today as we continue our cross-country meetings.

I would like to thank Luc Harvey and Raymonde Folco for being here with us today. I would also like to thank the Bloc Québécois members who have attended all our meetings.

Thank you. If you didn't understand that, I want to welcome Luc Harvey and Madame Folco to our meetings today.

For the benefit of our witnesses, we are the Standing Committee on Citizenship and Immigration. We've been mandated to hold meetings on three items: undocumented and temporary foreign workers, immigration consultants, and Iraqi refugees.

We will be meeting in almost all provinces and will be finishing up next week in St. John's, Newfoundland. By the time we finish up, we will have heard from 52 panels of people like you, who will present their views on any one of these topics or on all of these topics. At the conclusion, of course, our clerks and analysts will do a report, which we will present to the House of Commons.

Your opinions mean a lot to us. Thank you for being here today.

I want to welcome witnesses Sylvie Gravel, professor of work injuries and safety at work at the business school at the University of Quebec at Montreal; and Félicien Ngankoy, from the Congolese Catholic community of Montreal. Welcome. I think we have one more who might be here a little bit later on, and that is Solidarity Across Borders.

You have about seven minutes to make an opening statement, if you wish, after which our committee members will engage you or ask questions. Please feel free to begin at any time.

Go ahead, Ms. Gravel.

[Sylvie Gravel, Professor, Work injuries, Safety at work, Business School, University of Quebec at Montreal, As an Individual]

Good morning. Thank you for inviting me. This morning, I am going to describe my work and the brief I have prepared for this committee. To stay within the time I am allowed, I am going to follow my paper closely.

As a specialist in occupational injuries and access to compensation for immigrant workers, I would like to draw the attention of committee members to occupational accidents and illnesses suffered by immigrant workers. When I talk about occupational injuries, I refer to both accidents and illnesses.

Since the 1970s, there have been many studies in Europe and North American that have documented two major problems experienced by immigrant workers: overexposure to occupational injuries and under-reporting of injuries for compensation claims.

In a number of countries that import cross-border labour, including France, Germany, Sweden, Australia and the United States, it is estimated that the risk of suffering an occupational injury is two to three times higher for immigrant workers than for national workers. These are epidemiological studies. In addition, the injuries are generally more serious and irreversible. The rates of respiratory tract cancers, burns of all kinds, to the eyes, mucus membranes and hands, amputations of extremities, that is, fingers and hands, and deaths by homicide are much higher for immigrant workers, regardless of whether they have permanent or temporary status or are undocumented, or of the length of time they have been in Canada.

There are many causes of this overexposure, and they operate in combination. There are structural causes relating to the employment market and employer companies, and there are personal causes. The structural causes include the jobs available to immigrant workers seeking jobs that will enable them to integrate economically. They are mainly in industries where jobs are precarious, turnover is high and the risk of injury is very high. They include agriculture, construction, material handling and services. For example, in market gardening, exposure to pesticides and insecticides is associated with cancers and burns. In agriculture, exposure to cutting and slicing machines results in amputations. In the services sector, night work involving handling money, for example in service stations or at rest stops, are jobs in which the risk of physical assault and homicide are elevated.

Although the risks to workers' health and safety in those industries are known, few if any training courses are systematically offered. Because these sectors are composed of small businesses, they are not necessarily subject to oversight by occupational health and safety authorities. Workers in these sectors rarely form associations or unions, although such associations could bring influence to bear to have occupational health and safety measures implemented and adhered to.

When a business has the infrastructure to systematically initiate new workers and give its workforce on the job training in new procedures or new occupational health and safety measures, exposure to risks is generally greatly reduced. However, businesses that adapt their training to the languages skills of their immigrant workers or workers who speak other languages are rare.

Generally, training and safety instructions are given in the official language or languages of Canada. However, when there is an emergency, stress, movement and confusion reduce the ability of people in general, and other language speakers in particular, to understand. The immigrant workers who are best able to understand safety instructions are the ones who were trained in their own language by people from the same background.

The other personal causes for overexposure of immigrant workers include their education level. There are two categories of workers: those who have inadequate education and come from countries where there are virtually no occupational health and safety rules, or they are simply ignored; and those who have come from very educated backgrounds and who, whether they come from developing countries or not, have been trained in a profession, such as doctors, engineers, etc., and who take manual labour jobs for economic survival. These overqualified workers are more exposed to occupational injuries because they have not developed skills for performing manual work that is demanding in terms of physical effort or repetitive movements.

None of the studies to which we refer here distinguished among workers based on their status. However, employment sectors where the risk of serious and irreversible injury is concentrated are those where there are chronic workforce shortages and where seasonal workers from the South, recent immigrant workers and undocumented workers are hired.

In general, these workers all have an injury in the course of a year, but only rarely do they report it.

As in the case of overexposure to occupational injury, there are structural and personal causes that explain under-reporting of injuries by immigrant workers.

Studies on access to compensation, which have mainly been done in the last 10 years, show that there is a system of barriers to access to compensation schemes. Those barriers occur at various stages in the process: when the event, that is, the accident occurs, or when the symptoms of the illness appear, the workplace does not encourage an injured worker or a worker who has an occupational illness to report the situation and claim compensation; when a worker initiates a claim, the attending physicians, the union and the administrative services at the compensation scheme are all necessary and indispensable players in the process, but through inadvertence or negligence they may hinder or block the worker's efforts; when the worker returns to work after receiving compensation, he or she can ideally be reinstated, but some may be refused reinstatement or not allowed to return to their duties, or even dismissed.

Fears of reprisals by employers prompt immigrant workers not to report injuries. In some industries, including the hotel industry in San Francisco, a very large majority of workers, 97%, had an occupational injury during the year and made no claim. Those workers, most of them of Spanish-speaking or Asian origin, were afraid of reprisals, even though in some communities there are clinic services provided for the community so that the workers can have access to consultations and report their injuries.

Immigrant workers are afraid of losing their right to citizenship, their right to sponsor family and their right of residence. Those fears are unfounded and are based on ignorance of their rights as workers and citizens.

All low-paid workers, whether or not they are immigrants, are afraid of the financial losses they suffer when they take time off work, the cost of compensation proceedings, and especially the legal fees they incur if the employer disputes their entitlement to benefits. Their fears of poverty are unfortunately well founded, because 40% of workers have a substantial loss of income as a result of the waiting period.

All of the studies done of immigrant workers did not take status into account, because of the data. In Canada, as in many other countries, it is impossible to do a study that specifies workers' status, because occupational health and safety files do not record information about workers' origin, mother tongue or status. The data are generally obtained from indirect sources. In this case, we are talking about cross-checking the injuries and the medical records.

What are we to conclude about the status of workers admitted under Canada's temporary worker programs? At present, the industries that benefit from bilateral agreements to admit temporary workers are precisely those industries that are known for their high risk of occupational injuries: agriculture, for the bilateral agreements between Quebec and Mexico, and manufacturing and handling, for the bilateral agreements between Canada and El Salvador.

Despite the strong support for temporary immigration, there are many questions that do not seem to have clear answers at present. What occupational health and safety coverage is provided for these temporary workers? Do they have the same rights as permanent workers when it comes to health care, compensation, rehabilitation and reinstatement in their jobs, during the time they are here and for the years to come? Who trains them in occupational health and safety measures?

[The Vice-Chair, Bloc, Thierry St-Cyr]

Ms. Gravel, I am going to ask you to wrap up quickly.

[Sylvie Gravel]

I think the committee members should ask themselves some questions about the consequences of unequal or inequitable treatment of temporary immigrant workers on occupational health and safety conditions for workers generally. What responsibility to businesses in the industries that have access to this temporary workforce bear? What authorities are responsible for compliance with occupational health and safety standards in those industries, if those authorities are provincial while the immigration programs are under federal jurisdiction? What authorities will provide epidemiological monitoring of temporary immigrant workers' health?

It must be recalled that occupational health and safety is a feather in the cap of our democracy, and that it guarantees the health, safety and dignity of workers. I believe that treating temporary workers differently would be a blot on our democracy.

[The Vice-Chair, Bloc, Thierry St-Cyr]

Thank you very much, Ms. Gravel. You will have an opportunity to add the parts of your presentation that you did not have time to give us during the questions and comments period.

Ms. Folco, you have the floor.

[Raymonde Folco, Liberal, Laval—Les Îles, QC]

I would like to say something to you for Ms. Gravel, Mr. Clerk. Given that she did not have time to read her entire brief and that the brief is in French only, she could send it to our chair. I think that we will be able to have it translated and distribute it to the committee members.

[The Vice-Chair, Bloc, Thierry St-Cyr]

You have raised a good point, Ms. Folco.

Mr. Ngankoy, you have seven minutes.

[Félicien Ngankoy, Communauté catholique congolaise de Montréal, As an Individual]

Mr. Chair, Members of Parliament and members of the House of Commons Standing Committee on Citizenship and Immigration, I would like to thank you for the honour and opportunity of appearing before your Committee today to discuss the issue of undocumented workers.

For your information, my name is Félicien Ngankoy Isomi and I am originally from the Democratic Republic of the Congo. I was married here and am the father of two children born here. I am one of the leaders and members of the Communauté Catholique Congolaise de Montréal and would like to share my experience as an undocumented worker in Canada.

I arrived in Canada on September 29, 1999, and my refugee claim was heard before the Immigration and Refugee Board (IRB) a few years later, in September 2002. I personally wrote to the chairperson of the IRB to express my concerns, and he only wrote back to offer regrets. It wasn’t until July 2004 that I received a negative decision from the Board, indicating that I was excluded pursuant to section 1F of the Immigration and Refugee Protection Act.

After many unsuccessful attempts, I applied for a pre-removal risk assessment (PRRA), which was rejected in September 2005. Through the application for judicial review that was allowed by the Federal Court in November 2005, I was able to obtain a stay on removal to my country of origin, which is under a moratorium, simply because the moratorium does not apply to my case.

I applied a second time for a PRRA and a visa waiver on humanitarian grounds based on the fact that I was married here and am the father of two children born here, that I had submitted proof of income, and that I had the support of my employer, the Archbishop of Montreal and several organizations, including the Red Cross, where I am a volunteer. I even submitted a decision made by an English judge deferring any removal to the DRC because of torture and instability. But in spite of all this evidence, my application was rejected in December 2007. I could be removed to my country at any time.

I am here before you today as a result of a stay I obtained as a result of the intervention by the United Nations Human Rights Committee, which believes that my removal to the DRC is risky, and because Canada recognizes the widespread insecurity there by maintaining the moratorium on deportation to that country. As well, the Department of Foreign Affairs advises Canadians against travel to the DRC on its website because of that widespread insecurity.

I am now going to talk about my experience as an undocumented worker. I went to university and hold a law degree from my country, but my degree is not recognized here. Therefore, I can neither study or work given that I am unable to obtain equivalencies simply because I do not have the resources to study as a foreign student.

Let me point out that I started working three months after arriving in Canada in 1999, in manufacturing, telemarketing, and so on. Since I am limited by a lack of status, I must renew my work permit every year and there are no guarantees. I am skilled and able to do better for my family, but since my hands are tied, I must work so I can take care of my small family. Although my children were born here, they do not enjoy all the rights, benefits and privileges that are extended to other children, simply because I have no status. My children are undeniably second-class Canadians.

There is no way out. I have no future and no plans, and I cannot allow myself to make plans because I don’t know if I’ll still be here tomorrow. There is no way to describe how I feel; I am but one of many survivors who cross their fingers, hoping that one day the Canadian government will realize that our situation is inhumane, and that we may finally see the light at the end of the tunnel after so many years of despair.

We worry about getting sick because our temporary health card does not cover all types of care. We are stressed because we are undocumented and end up getting sick, as I did. I was hospitalized for two months, April and May 2007, which included two weeks in intensive care while in a coma at the Maisonneuve Rosemont hospital. I was dying and about to leave my wife and children to fend for themselves. I thank God that I am still alive today.

I have just highlighted what many undocumented workers in Canada, including me, are going through. Their lives are on hold and they have no real prospects of becoming permanent residents. As for me, I have only two options: agree to return home to be arrested and killed, or stay here without status and die a slow death. Those who find themselves in a legal void like me suffer painful and tragic consequences: their job prospects are uncertain and limited; they cannot go to school and continue their education; they are ineligible for the Canada Child Tax Benefit, even though they work and pay taxes like all Canadians; they can only access emergency health care; they cannot travel outside Canada; and they struggle with intense feelings of injustice, despair and hopelessness. All these cases underscore the urgent need for a comprehensive solution.

The following are a few recommendations: call upon the Government of Canada to create a prescribed class that would grant permanent residence to all undocumented workers who have lived in Canada for at least three years, by stipulating specific criteria such as no criminal record and the degree of integration into the host community; improve training for Immigration Canada and border services officers so they can gain a better understanding of international and refugee issues as well as international migration in order to avoid making decisions that are very often questionable; provide the resources to implement the Refugee Appeal Division as set out in the Immigration and Refugee Protection Act; although the Government of Canada funds many programs to bring in workers and immigrants from abroad, many such people are already here and working, contributing to Canada’s socio-economic development by paying taxes and ask only to be recognized; allow Canadian children, if possible, to sponsor their parents who are undocumented workers who have been working here for at least three years, because Canadian law recognizes that it is in the children’s best interests to live and grow up with their parents.

Thank you for your attention.

[The Vice-Chair, Bloc, Thierry St-Cyr]

Thank you, Mr. Ngankoy.

We will move on to questions.

Mr. Telegdi, you have seven minutes.

[Andrew Telegdi, Liberal, Kitchener—Waterloo, ON]

Thank you very much. I'll be sharing my time with Madame Folco.

Thank you very much for coming.

Particularly on the issue of undocumented workers, Professor Gravel, I wanted to mention what we heard from a professor at York University yesterday. Instead of calling them undocumented, which really creates visions of all the Mexicans going into the United States without any status, she said that in the case of Canada most of them are in precarious status; most of the undocumented workers came into Canada legally and then overstayed their visas and what have you. It's only a very small number.

I've been talking about undocumented workers for a long time, and that really gave us a different perspective, just from the viewpoint that people may think “undocumented” people who are here might be terrorists or were never cleared to come into Canada. It might create that impression. I think having precarious immigration status or having status expired is not quite as threatening as being undocumented. I've been talking about undocumented workers for years and I found that to be an interesting point to make.

I agree in terms of the terrible situations undocumented folks are in. I think we'd be much better off to regularize them and go through a process of regularization to get them out from the shadows so that they're part of mainstream Canadian society.

That's the comment I wanted to make; you can respond to it, and then I'll give it over to Madame Folco.

[Sylvie Gravel]

I would first like to note that a majority of the studies I refer to and the studies I have done myself relate to documented workers. We are not talking about undocumented workers. Our sample included very few undocumented workers. The workers are very reluctant and suspicious about the idea of participating in studies dealing with occupational injuries, because even with papers they are in a precarious situation.

The last study I did talked about only one of those workers, and we lost him over the course of the study because he went back home as a result of an injury that was not recognized and for which he was not compensated, when ordinarily occupational health and safety boards recognize all workers, regardless of their status. Some temporary and permanent workers have been here for 10 or 12 or 15 years. Their occupational health and safety status over-exposes them to injuries and they under-report those injuries.

I think the problem is much wider than undocumented workers. By allowing massive temporary immigration, what we are still doing, and doing more, is putting the health and safety of immigrant workers at risk. Those workers have no leverage and no association to enforce their rights. They work in industries that are not necessarily monitored by occupational health and safety inspectors. The health of workers in general is being put at risk because what we are doing is introducing a work force that, because of its turnover, can't demand stability and compliance with the standards. That is what is of concern.

The problems of immigrant workers in the United States relate especially to the Spanish-speaking community in that country. The cancer rate, including respiratory tract cancer, is 20 times higher among agricultural workers than in the general population. Those workers come back year after year. They may have no status, but they are a relatively stable workforce in that industry. That is what our bilateral agreements are creating. We have a temporary workforce that comes back year after year and that is fine for the agricultural businesses. But what is the situation for these people? No one is doing epidemiological surveillance of their health. This is a concern because those people are overexposed.

This country, with its demographic and economic growth relying in part on foreign workers, is facing a serious ethical problem. We are also doing to be facing a problem of this nature involving all the other workers who stay in those industries and who are not temporary immigrants, or immigrants at all. In some regions of Canada, that phenomenon is expanding at such a rate that this is becoming a serious concern, even in social terms.

[The Vice-Chair, Bloc, Thierry St-Cyr]

Ms. Folco, you still have a minute and 15 seconds.

[Raymonde Folco, Liberal, Laval—Les Îles, QC]

I am going to pass. Will I be entitled to five minutes next time?

[The Vice-Chair, Bloc, Thierry St-Cyr]

You will have three minutes on the next round.

Ms. Raymonde Folco: Two minutes and 15 seconds.

I will carry your minute forward to your three minutes on the next round.

Mr. Carrier.

[Robert Carrier, Bloc, Alfred-Pellan, QC]

Thank you, Mr. Chair.

I was touched by Mr. Ngankoy's testimony about the situation of temporary workers who become undocumented workers. Since we started these hearings, we have been made very aware of how these people are exploited. They are defenceless and ignorant of their rights. This is a concern. There should be a completely new approach taken in the Department of Citizenship and Immigration.

At the first sitting of the committee I took part in, in October or November, the Minister was boasting about how she had increased the number of undocumented workers. She was very pleased about this. We now see that this is creating more problems. We will work to regularize these people's situation as soon as possible, although that is a major undertaking, a major change that has to be made in the Department.

In the meantime, I am going to address Ms. Gravel, who has studied the current situation. That situation has existed and will go on for several more years before the Department restores balance. Workers are not aware that they are entitled to safe jobs. Certainly you have studied the situation in Quebec, which has the Commission de la santé et de la sécurité au travail. What is missing there? The federal government is the one that issues work permits, but the workers are subject to the labour standards of Quebec or the province where they are working. What is missing for these people to be properly informed about their rights and for them to be treated properly?

[Sylvie Gravel]

There are a number of players when it comes to occupational health and safety: the company, the union, the [Editor's note: technical difficulties] when there are [Editor's note: technical difficulties] and the CSST. Each one is partially responsible for providing a worker with information. We must keep in mind that when a worker arrives, like Mr. Ngankoy, and is looking for a job in order to survive economically, the worker's priority is obviously to find a job, regardless of those conditions. It is often in very small workplaces where there is no union or employee association. The workers are therefore more or less on their own and they learn their rights in terms of occupational health and safety as events occur. The employer does not necessarily do it. It's the very large companies that have rules and health and safety standards compliance, while small businesses may easily break the rules because of concerns relating to competition, the market, survival, production, and so on.

In workplaces, we have to assume it is often the attending physician who is the gateway to compensation and healthcare for immigrant workers. Foreign workers do not have a family doctor. They enter the healthcare system through the emergency room and are passed from one doctor to another, getting diagnoses that are sometimes inconsistent. Each player bears a share of the responsibility. We cannot assume that immigrant workers have to make a bigger effort.

[Robert Carrier, Bloc, Alfred-Pellan, QC]

You are describing the details of the current situation, and that's fine, but what do you recommend? What should be improved? Should the provincial government, the ministry of labour in each province, do the follow-up, because it is aware of what temporary workers are within its jurisdiction with authorization? Should it ensure that these people know their rights and are able to demand good working conditions, like all our workers? In fact, our workers actually are informed about their rights and don't allow themselves to be exploited, in general, even if they are working for small businesses. If no one takes responsibility for the people who don't know anything about it, like foreign workers, and doesn't brief them on their rights, who are they going to talk to if there is a problem? That is why I would like to know whether you have a recommendation to make for improving this system.

[Sylvie Gravel]

I think that the occupational health and safety commissions are partially responsible for ensuring that all workers have access to information and are aware of their rights. There should be more oversight in industries where the workers are largely immigrants, whether temporary or permanent. There should also be support from community organizations to help them understand their rights, and if necessary to translate them into their language and translate the steps to take when necessary.

If Canada opens the floodgates on its temporary immigration programs, there will have to be at least some oversight of these people's health. If they are injured, we will have to know the circumstances in which it happened and how they are looked after in terms of health after they are injured on the job.

[Robert Carrier, Bloc, Alfred-Pellan, QC]

I would like to come back to Mr. Ngankoy. You recommend that people who have been here for several years be able to apply for permanent residence, taking into account their experience and the fact that they have no criminal record.

In your case, was it the possibility of a temporary work permit that brought you here, or was it as a refugee? I didn't catch that at the beginning.

[Félicien Ngankoy]

I came here as a refugee.

[Robert Carrier, Bloc, Alfred-Pellan, QC]

Why was your residence permit revoked? You say your status was virtually illegal, that you had no papers. If you had been accepted as a refugee, was there a hearing, your case had been reviewed and it was decided that you had to leave?

[Félicien Ngankoy]

That's what I said in my presentation. My asylum claim was refused. I made my claim when I arrived, in 1999. It was considered in 2002. That took months. I had no news, I had to write to the chairperson of the board myself to express my concerns. In 2004, four and a half years after I arrived, the board gave me its answer, which was negative. We initiated proceedings, but because there is really no appeal...

[Robert Carrier, Bloc, Alfred-Pellan, QC]

That's what's missing.

[Félicien Ngankoy]

That's what's missing. When I arrived in 1999, the old law was in force. In theory, I was supposed to have access to two or three board members. In 2002, the new law was enacted and I appeared before a single member. When it was decided that there would be one member, provision was made for an appeal process. There was a second opportunity, you had an appeal. I met with another board member, but I was not entitled to appeal. It took years of proceedings, and I made applications, specifically for a pre-removal risk assessment. I filed documents proving that the situation in Congo was one of widespread insecurity, and about the fact that at present Congo is still under a moratorium for safety reasons. The Canadian government advises Canadians not to go to Congo because of the widespread insecurity, but my application was denied...

[The Vice-Chair, Bloc, Thierry St-Cyr]

You have answered Mr. Carrier's question.

Ms. Chow, you have seven minutes.