Court okays review of case vs caregivers

Court okays review of case vs caregivers

FIRST VICTORY FOR FILIPINA CAREGIVERS IN QUEBEC

EVELYN Calugay, president of PINAY. Photo courtesy of Montreal Gazette

MONTREAL–On October 16, 2012, the Superior Court of Quebecgave a green light to eight Filipina Live-in Caregivers (LIC) and Pinay, a local Filipina rights group, to proceed in their motion for judicial review of the Quebec Human Rights and Youth Rights Commission’s negative decision about their case, by rejecting the Commission’s motion to have the case dismissed.

The Filipina women’s application for judicial review seeks to challenge the Commission’s dismissal, in June 2012, of Pinay’s complaint which was filed back in May 2009 on behalf of twenty six Filipina LICs who were subject to discrimination, harassment and exploitation in employment, housing and immigration by John Aurora, an immigration consultant who died in September 2009. Due to numerous errors of fact and law committed by the Commission during the investigation into the complaint, Pinay and eight of the 26 women asked the Superior Court to reverse the Commission’s decision and send the file back to the Commission to re-do the investigation. The group also asks for a total of $90,000 in moral damages against the Commission for gross negligence.

The present decision by the Superior Court is a landmark decision, in that it is the first decision in favour of the eight LICs and Pinay since their legal battle began three years ago.

Mr. Justice Thomas Davis of the Superior Court rejected the Commission’s core arguments as to why the application for judicial review should be dismissed.
The Commission argued that the application for judicial review was filed more than 5 months after the decision was taken; that it fulfilled its duty of procedural fairness during the investigation; that the Commission enjoyed large discretion in its investigation and that the women could still sue the respondents in regular courts at their own expense.

File copy of PINAY membership in 2011

The Superior Court recognized that the circumstances in this particular case justify the delay of two months in filing the motion. Most importantly, Mr. Justice Davis emphasized the serious prejudice that the Filipina women would suffer if their motion for Judicial Review was dismissed. Mr. Justice Davis also highlighted the importance of the present case and its potential for justice to present and future LICs. In fact, in the judge’s words, “the importance of the matter is further magnified by the fact that over and above the Plaintiffs, there are many Filipino caregivers arriving in Canada every day”.

The Court also rejected another Commission’s argument by recognizing that “plaintiffs’ rights could be seriously prejudiced if their motion is dismissed at this stage. While it is true that they could institute proceedings on their own, and might ultimately have to do so, such proceedings would be costly and there is potential for prescription.”

In so doing, the Court obviously was taking judicial notice of the obvious economic conditions of many LICs whose low incomes prevented them from suing the immigration consultant and others who exploited them. It also rejected the Commission’s argument that these women could still sue those who violated their civil rights, even if the Commission had previously recognized in its own decision that it was already too late to take legal action against these wrongdoers in the first place.

Finally, the Court concluded that at the preliminary stage, the Court cannot deny these women the right to present their case on the merits. “Only following a full hearing will allow the Court to adjudicate on the validity of Plaintiff’s claims,” stated Mr. Justice Davis.

“This kind of judicial sensitivity gives us hope,” said Ms. Evelyn Calugay, President of Pinay. “The Court is sending a very important message to society as whole about the obstacles encountered by migrant and domestic workers in seeking protection against civil rights violations, something which the human rights commission seems to have problems understanding.”

“I am very glad about the Superior Court’s decision not to dismiss our motion for judicial review because it means these women are one step closer to obtaining justice,” said Me Melissa Arango, who is acting on behalf of the women and Pinay in the case.

The case, which is expected to cost the group several thousand dollars, has been brought by Pinay to the United Nations as an example of the lack of effective protection of domestic workers in Canada from discrimination, human trafficking and exploitation.

There has never been a discrimination case involving live-in caregivers that has been brought by the Commission before the Quebec Human Rights Tribunal since the latter’s creation in 1990.

(PRESS RELEASE)