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Court File No. ONTARIO SUPERIOR COURT OF JUSTICE B ETWE E N: UEL RUIZ ESPINOZA, SALVADOR and JOSE RUIZ SOSA
Of/-//~ 97-'10 -<!3
RETA RUIZ Plaintiff(s)
RRY FARMS INC., (F.A.R.M.S.) FOREIGN AGRICULTURAL EMENT SERVICES, THE ATTORNEY GENERAL OF CANADA an MAJESTY THE QUEEN in Right of Canada as Represented by the Minister of Human Resources and Skills Development Canada and the Minister of Citizenship and Immigration Canada Defendant(s)
STATEMENT OF CLAIM
TO THE DEFENDANTS: A LEGAL PROCEEDING HAS BEEN COMMENCED AGAINST YOU by the plaintiffs. The claim made against you is set out in the following pages. IF YOU WISH TO DEFEND THIS PROCEEDING, you must prepare a statement of defence in Form Procedure, serve it on the plaintiff's lawyers or, lawyer, serve it on the plaintiffs, and file it, with WITHIN TWENTY DAYS after this statement of served in Ontario. you or an Ontario lawyer acting for 18A prescribed by the Rules of Civil where the plaintiffs do not have a proof of service, in this court office, claim is served on you, if you are
If you are served in another province or territory of Canada or in the United States of America, the period for serving and filing your statement of defence is forty days. If you are served outside Canada and the United States of America, the period is sixty days. Instead of serving and filing a statement of defence, you may serve and file a notice of intent to defend in Form 18B prescribed by the Rules of Civil Procedure. This will entitle you to ten more days within which to serve and file your statement of defence.
IF YOU FAIL TO DEFEND THIS PROCEEDING, JUDGMENT MAY BE GIVEN AGAINST YOU IN YOUR ABSENCE AND WITHOUT FURTHER NOTICE TO YOU. IF YOU WISH TO DEFEND THIS PROCEEDING BUT ARE UNABLE TO PAY LEGAL FEES, LEGAL AID MAY BE AVAILABLE TO YOU BY CONTACTING A LEGAL AID OFFICE.
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Tigchelaar Berry Farms Inc.
3110 Marina Boulevard Vineland, ON LOR 2EO
Foreign Agricultural Resource Management Services (F.A.R.M.S.)
1370 Dundas Street East, Suite 203 Mississauga, ON L4Y 4G4
The Attorney General of Canada
Dept. of Justice [Canada] Ontario Regional Office The Exchange Tower, Box 36 130 King St. W., Suite 3400 Toronto, ON M5X 1K6
THIS ACTION IS BROUGHT AGAINST YOU UNDER THE SIMPLIFIED PROCEDURE PROVIDED IN RULE 76 OF THE RULES OF CIVIL PROCEDURE
1. The Plaintiffs, Manuel Ruiz Espinoza, Salvador Reta Ruiz and Jose Ruiz Sosa,
(together, the "Plaintiffs"), claim against the Defendants for: a) a declaration that the Plaintiffs were repatriated and their employment terminated without "sufficient reason"; b) damages for breach of contract in the amount of $25,000 each; c) a declaration that Tigchelaar Berry Farms Inc. ("Tigchelaar") had an obligation under contract and/or s. 7 of the Canadian Charter of Rights and Freedoms
("Charter') and/or ss. 1(a) and 2(e) of the Canadian Bill of Rights to advise
the Plaintiffs of the allegations against them and to provide a meaningful opportunity for them to respond, prior to terminating their employment and repatriating them; d) a declaration that Tigchelaar breached such obligations; e) a declaration that the Plaintiffs' rights under s. 7 of the Charter have been infringed; f) damages for breach of the Plaintiffs' Charter rights in the amount of $25,000 each; g) pre- and post-judgment interest on all damages pursuant to the Courts of
h) such further and other relief as counsel may advise and this Honourable Court may permit; and i) the costs of this action on a substantial indemnity basis.
The Plaintiffs are all Mexican citizens. Each of the Plaintiffs resided and was permitted to work in Canada pursuant to a
temporary work permit issued by Citizenship and Immigration Canada ("CIC''). CIC issued the temporary work permit in furtherance of a government program called the Seasonal Agricultural Workers Program ("SAWP"). 4. Tigchelaar employed each of the Plaintiffs as seasonal agricultural workers.
Tigchelaar is an agricultural business. Its registered corporate office is 3110 Marina Blvd, Vineland, Ontario. 5. Tigchelaar operates a farm located at 21st St. #4250, Vineland, Ontario. This
farm was the Plaintiffs' regular place of employment in Canada. 6. (F.A.R.M.S.) Foreign Agricultural Resource Management Services ("F.A.R.M.S.")
is a non-profit agency incorporated under the laws of Canada in approximately 1987 to facilitate and coordinate the processing of requests for foreign agricultural workers. 7. 8. Tigchelaar applied to F.A.R.M.S. to hire the Plaintiffs. F.A.R.M.S., in turn, acted as an intermediary between Tigchelaar and the Queen
in Right of Canada (the "Government of Canada") respecting the Plaintiffs' employment in Canada. 9. The terms and conditions of the Plaintiffs' employment were set out in a standard
form employment contract, which contract was intended in part to implement SAWP (the "SAWP Contract"), and which was drafted by the Ministry of Human Resources and
Skills Development Canada ("HRSDC").
HRSDC, F.A.R.M.S. and agricultural
employers such as Tigchelaar act together to implement the Government of Canada's objectives under SAWP
Overview of SAWP
SAWP is a formal government program of "managed" circular migration.
facilitates the temporary migration of Mexican and Caribbean agricultural workers into Canada to meet seasonal demand for low-skilled, "reliable" labour in the agricultural industry. Foreign agricultural workers are to return home following the conclusion of their temporary work permits. 11. SAWP has been in existence for approximately 45 years. SAWP began as a
pilot program between Canada and Jamaica in 1966. Since that time SAWP has expanded to include Mexico, Barbados, Trinidad & Tobago, and the Eastern Caribbean States of Dominica, Grenada, St. Kitts/Nevis, St. Lucia and St. Vincent & the Grenadines. 12. SAWP's objectives include: a) meeting qualifying agricultural businesses' seasonal demand for low-skilled, "reliable" agricultural workers during the peak planting and harvesting season when there is a relative shortage of similarly skilled Canadian workers; b) helping maintain Canada's economic prosperity and global agricultural trade competitiveness through timely planting, harvesting, processing and marketing of crops, and to expand job prospects for Canadian citizens dependent on agriculture and agriculture-related employment opportunities; c) enhancing and maintaining the Canadian economy's efficiency through better allocation of local labour resources;
d) improving the economic welfare of migrant workers by providing them with temporary full-time employment in the labour-intensive agricultural industry at relatively higher wages than they could obtain from similar or alternative activities in their home countries; and e) facilitating the return of the foreign workers to their home countries at the end of their temporary employment in Canada. 13. SAWP is managed and implemented within a three-tier governmental framework
and through public-private partnerships with agricultural businesses and industry representatives. 14. At the international level, SAWP is implemented through bilateral administrative
arrangements between Canada and the source countries, including Mexico. These arrangements are formalized in Memoranda of Understanding ("MOUs"). Foreign
governments assist in the recruitment and selection of foreign workers, ensure workers have the necessary documents, maintain a pool of qualified workers and appoint government agents as representatives within Canada; 15. At the federal level, SAWP is implemented within the statutory framework of the
and Refugee Protection Act
and its associated Regulations,
Act and the Department
Resources and Skills Development Act.
Finally, at the provincial level, SAWP is implemented through statutes of general
application relating to employment standards, labour and health. 17. As noted, aspects of SAWP are also implemented through public partnerships
with the private sector.
Specifically, agricultural employers in Ontario apply to HRSDC to hire foreign
workers pursuant to SAWP through F.A.R.M.S. 19. HRSDC has authorized F.A.R.M.S. to perform this administrative role. Its Board
of Directors is appointed by members of the commodity industries which rely on SAWP to meet their labour needs during peak periods. 20. In turn, individual agricultural employers who are permitted to hire foreign
workers (such as Tigchelaar) implement and administer SAWP "on the ground" through the SAWP Contract and the other obligations that they owe to the Government of Canada.
The SAWP Process
CIC is responsible for issuing temporary work permits through SAWP. In order
for CIC to issue a temporary work permit pursuant to SAWP, the agricultural business must comply with the following process: a) the agricultural business must first undertake recruitment efforts to hire a Canadian or permanent resident; b) if the recruitment efforts do not produce sufficient or adequate potential employees who are either Canadian citizens or permanent residents, the agricultural business or its third party representative must apply to HRSDC for a Labour Market Opinion ("LMO"), as mandated by the Immigration and Refugee Protection Regulations. HRSDC then assesses what impact the entry of foreign workers would have on Canada's labour market. The LMO is a necessary precondition for the foreign worker to obtain a temporary work permit from CIC; c) if the LMO indicates that the impact of hiring a foreign worker will be neutral or positive to Canada's labour market, then Mexico or the Caribbean country
may recruit the agricultural worker and help him or her apply for a work permit from CIC. An agricultural business may also request a specific foreign worker by name; d) the agricultural business must complete a human resources plan eight weeks before the foreign worker starts and submit the plan to HRSDC to demonstrate the agricultural business's efforts to hire Canadians or permanent residents; e) the agricultural business must prepare a SAWP Contract, which must be signed by the agricultural business, the foreign worker and a foreign government representative before CIC will issue a work permit; f) CIC then determines whether a foreign worker will be allowed to enter and work in Canada on a temporary basis. CIC is the Ministry responsible for issuing the temporary work permits. The worker may be issued a permit for a maximum of eight months as long as he or she has a SAWP contract and meets any other criteria necessary to work and reside temporarily in Canada; g) finally, Canada Border Service Agency screens foreign workers at border crossings and airports. It can deny entry to foreign workers if it believes they do not meet the requirements of the Immigration and Refugee Protection Act and its associated Regulations. 22. Each year, the Government of Canada through CIC and HRSDC facilitates the
entry of thousands of foreign agricultural workers into Canada, including the Plaintiffs. 23. Absent the involvement and approval by the Government of Canada through CIC
and HRSDC of temporary work permits for foreign agricultural workers, Tigchelaar could not have employed the Plaintiffs or any other foreign agricultural workers pursuant to SAWP or otherwise.
Conversely, absent Tigchelaar and other agricultural businesses which hire
foreign agricultural workers through SAWP, the Government of Canada, CIC and HRSDC could not fulfill the policy objectives of SAWP with its perceived benefits to Canada's economy and labour market.
The SAWP Contract
As noted, the SAWP Contract is a standard form contract. A review of its express terms discloses that the SAWP Contract: a) is intended to and does implement SAWP; b) governs substantially all of the working conditions of the foreign agricultural worker; c) provides that the employer may establish additional rules so long as "a copy of rules of conduct, safety discipline and care and maintenance of property as the WORKER may be required to observe" is provided to the employee; d) sets out the circumstances in which the agricultural business may deduct money from the foreign agricultural workers' wages, including deductions for travel to and from Mexico; e) establishes that, following the end of an employee's 14 day trial period, an agricultural business may only terminate a foreign agricultural worker for "sufficient reason" and, specifically, that the agricultural business shall only be entitled to terminate and repatriate a foreign agricultural worker "after consultation with the GOVERNMENT AGENT, '" for non-compliance, refusal to work, or any other sufficient reason ... and so cause the WORKER to be repatriated"; f) provides that the employer shall bear the burden of the cost of repatriation where "the WORKER was requested by name by the Employer";
g) provides many of the obligations of the agricultural business and the foreign agricultural worker respecting the Government of Canada and SAWP, including possible quasi-criminal sanctions for failure to comply with aspects ofSAWP; h) is to be construed in accordance with the laws of Canada and, with respect to the Plaintiffs, the laws of Ontario; and i) contains an acknowledgement that no term contained in the SAWP Contract "shall be superseded, suspended, modified or otherwise amended, in any way, without the express written permission of the competent Canadian and Mexican authorities, as well as the EMPLOYER and his WORKER." 27. It is an implied term of the SAWP Contract that the foreign agricultural worker is
entitled to be informed of the allegations made against him or her and that he or she will have a meaningful opportunity to respond to the allegations prior to the agricultural business terminating his or her employment and repatriating the foreign agricultural worker to his or her home country.
The Plaintiffs' Employment Relationship
The Plaintiffs were each employed in Ontario by Tigchelaar pursuant to SAWP. In 2010, Tigchelaar employed the Plaintiff, Manuel Ruiz Espinoza. His contract
with Tigchelaar was for the term May 15, 2010 to November 15, 2010. 30. Tigchelaar had employed Mr. Ruiz Espinoza for three consecutive seasons in
2008,2009 and 2010. 31. name. In the relevant season, Tigchelaar specifically requested Mr. Ruiz Espinoza by
- 11 -
In 2010, Tigchelaar employed the Plaintiff, Salvador Reta Ruiz. His contract with
Tigchelaar was for the term May 15, 2010 to November 15, 2010. 33. Tigchelaar employed Mr. Reta Ruiz for three consecutive seasons in 2008, 2009
and 2010. 34. 35. In the relevant season, Tigchelaar specifically requested Mr. Reta Ruiz by name. In 2010, Tigchelaar employed the Plaintiff, Jose Ruiz Sosa. His contract with
Tigchelaar was for the term April 26, 2010 to December 15, 2010. 36. 37. Tigchelaar employed Mr. Ruiz Sosa for the first time during this season. Standard form SAWP Contracts governed the terms of each of the Plaintiffs'
relationships to Tigchelaar and, in part, to the Government of Canada. 38. SAWP Contracts also governed, in part, the relationship between Tigchelaar and
the Government of Canada. 39. period. 40. Each of the Plaintiffs paid to Tigchelaar the costs of air transportation to and from Each of the Plaintiffs worked for Tigchelaar for longer than his respective trial
Mexico City and the work permit processing fee (as contemplated by the SAWP Contract) by way of deductions from their respective wages. 41. Tigchelaar did not provide any of the Plaintiffs with a copy of any additional rules
that the Plaintiffs were required to follow.
- 12 -
Tigchelaar Terminates the Plaintiffs' Employment
Tigchelaar terminated Mr. Ruiz Espinoza's employment without sufficient or any
reason on August 30, 2010. Mr. Espinoza was repatriated to Mexico the next day, on August 31, 2010. 43. Tigchelaar terminated Mr. Reta Ruiz's employment without sufficient or any
reason on August 30, 2010. Mr. Ruiz was repatriated to Mexico the next day, on August 31,2010. 44. Tigchelaar terminated Mr. Ruiz Sosa's employment without sufficient or any
reason on August 30, 2010. Mr. Sosa was repatriated to Mexico the next day, on August 31,2010. 45. Tigchelaar did not inform any of the Plaintiffs of the allegations against them, nor
did Tigchelaar provide any of the Plaintiffs with a meaningful or any opportunity to respond to the allegations made against each of them. 46. The Plaintiffs have a right either at common law and/or pursuant to s. 7 of the
Charier and/or ss. 1(a) and 2(e) of the Canadian Bill of Rights to be informed of the
allegations made against them and to be provided with a meaningful opportunity to respond to these allegations. 47. Tigchelaar did not provide any of the Plaintiffs with notice or pay in lieu of notice,
either pursuant to the Employment Standards Act or at common law, as Tigchelaar was obligated to do. 48. The Plaintiffs have each taken reasonable steps to mitigate their respective
Tigchelaar deducted the cost of travel to Mexico from the Plaintiffs' wages upon
repatriation, despite the fact that Tigchelaar had already deducted the full cost of travel to Mexico City from each of the Plaintiffs. 50. In addition, Tigchelaar deducted the cost of repatriation from Messrs. Ruiz
Espinoza and Reta Ruiz' wages, despite the fact that the Plaintiffs had been "requested by name" by the employer and so it was the employer's obligation to pay. 51. In administering SAWP, Tigchelaar was exercising authority pursuant to SAWP's
statutory framework and Tigchelaar was acting in pursuit of a specific objective of the Government of Canada. As such, Tigchelaar is subject to the Charier. 52. In the further alternative, Tigchelaar was indispensable to the Government of
Canada in carrying out SAWP and so the Government of Canada is a joint participant in Tigchelaar's administration of SAWP. Therefore, the Charier and the Canadian Bill of
Rights apply to the actions of Tigchelaar.
The Plaintiffs propose that this action be tried in Toronto, Ontario.
PALIARE ROLAND ROSENBERG ROTHSTEIN LLP
Barristers 250 University Avenue, Suite 501 Toronto, ON M5H 3E5
Andrew Lokan (LSUC No. 31629Q) Michael Fenrick (LSUC No. 57675N)
(416) 646-4300 (416) 646-4301
Lawyers for the Plaintiffs
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