What does Access to Justice mean to you?

BY ANDREW PILLIAR, PhD student

It’s been an eventful few months on the access to justice front in BC.  In case you haven’t been keeping up, here are some highlights:

  • August 11: In a speech to the Canadian Bar Association in Vancouver, Chief Justice McLachlin again referred to access to justice as “the most pressing problem our legal system faces”.  But in contrast to previous statements, the Chief Justice sounded a note for some optimism, citing the work of the National Action Committee on Access to Justice in Civil and Family Matters.  More on that below.
  • August 12: The CBA announced the launch of its Access to Justice Committee to try to better understand and respond to legal needs of low and middle-income people across the country.
  • August 30: The BC Justice Reform Initiative released “A Criminal Justice System for the 21st Century”, a report by Geoffrey Cowper, QC, on how to reform BC’s criminal justice system.
  • September 5: UBC’s “Access to Justice and the Future of the Legal Profession” class started.  Soon after, the class drew some criticism and media attention, focussing on the fact that one of the course instructors is Geoff Plant, QC, who was BC’s Attorney General in 2002 when significant cuts were made to legal aid funding. (Full disclosure – I am currently auditing this class.)
  • September 6: The National Action Committee on Access to Justice in Civil and Family Matters, chaired by Supreme Court Justice Thomas Cromwell, released two reports for consultation: one on simplifying court processes, and another on improving access to legal services.
  • September 21: The Supreme Court of Canada handed down its decision in Canada (AG) v. Downtown Eastside Sex Workers United Against Violence (“SWUAV”), which broadened the public interest standing for intervenors.
  • October 22: The BC government released the first of two White Papers on reform to the province’s justice system.  This White Paper forms part of the government’s response to the Cowper Report released at the end of August.

You may notice that this list of recent events includes a number of committees, reports and studies.  You may be surprised that, after years of hearing about the access to justice crisis, committees are still being struck to investigate the problem.  You may want to know what is actually happening “on the ground” to improve access to justice.

It’s important to understand that access to justice is a very broad term, and one that can be misleading.  Access to justice is sometimes used as a catch-all phrase to capture civil matters, family matters, and criminal matters.  Sometimes, access to justice is a proxy for “access to legal services”.  Sometimes it is a proxy for “access to the courts”, such as in the SWUAV case.  Often, lawyers have thought of access to justice from the perspective of the legal system – such as thinking about the number of unrepresented people in courts, and how this may contribute to court delays.  In recent years, there has been a shift to try to understand access to justice more fundamentally – from the perspective of the individuals who experience legal problems.  This conceptual confusion may help explain why we are still trying to understand how to respond to the problems of access to justice.

But we have learned some things about access to justice.  Over the past 15 years, research around the world has improved our understanding of how often people experience legal problems.  The most recent Canada-wide research suggests that – excluding criminal matters – almost 45% of adult Canadians have experienced a legal problem over the past three years.  This research also suggests that only around 12% of those individuals sought legal assistance to deal with their legal problem.  Most dealt with it themselves, sought help from a friend, or chose to ignore the problem.

As people involved in the legal system, this should give us all reason to pause.  In the words of Chief Justice McLachlin, inscribed in front of Allard Hall: “The most advanced justice system in the world is a failure if it does not provide justice to the people it is meant to serve.”

So what can we do?  I have been hugely impressed by the discussion, the ideas, and the energy generated by the students in the Access to Justice course.  There seems to be recognition within that class that this is not a problem which will be solved by someone else, but a problem that calls on all of us as lawyers or future lawyers to find ways to meaningfully improve access to justice.

Those who work in the access to justice field note that there is no “silver bullet” to improve access.  As such, there are many opportunities for creative thinking and doing things differently.  The problems of access to justice pose challenges which calls on us all to find solutions.

This could mean doing work through LSLAP, and thinking about how to continue a commitment to pro bono work throughout your career.  It could mean seeking out job opportunities that explicitly seek to improve access to legal services in some way.  It could mean setting up an innovative legal practice to provide unbundled legal services at a reduced cost.  With the number of committees, reports, and studies available, there is no shortage of information about access to justice.

Above all, there is space for each of us to consider what access to justice means, and how it is relevant to us as future lawyers.  I urge you to think of ways to ensure that, when you start to practice, you make a commitment to improving access a meaningful part of your professional identity.  When you look back on your career years from now, wouldn’t you like to be able to say that you did something to address the most pressing problem faced by our legal system?

Andrew Pilliar recently completed his LLM, and is now a first year PhD student at the Faculty of Law, working on access to justice issues.  He previously worked as a litigation lawyer in downtown Vancouver.

The Lawlessness of NFL Referees

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BY TAL LETOURNEAU, LAW I

The first month of law school was characterized by mountains of learning.  I learned, for instance, that I don’t care nearly as much about the NHL lockout as I do about the National Football League Referee Association’s labour strike.

Orientation week was largely devoted to reassuring 1L’s that lawyers and the law are important.  Personally, I needed look no further than Sunday NFL programming to validate this claim.  In a weird sort of American Bolshevik Experiment, a kind of Kafkan mess where the Hunger Games met Mr. Bean, the NFL owners entrusted the interpretation of the rules of their sport to a band of amateurs.  The result was raging, unmitigated anarchy.

For the benefit of readers with fuller lives than myself, who spend their Sundays on things other than football – homework? the outdoors? meaningful relationships with other people? – here’s a very brief breakdown of the circumstances surrounding the NFL referee lockout .

The Referee Association wanted financial security in the form of pensions.  The owners objected to this, not so much because of the money, but as a matter principle.  After all, the owners, notwithstanding their stranglehold on a multibillion dollar industry, don’t have pensions, so why should anyone else?  Furthermore, the refs, in a  desperate, clutching attempt at job security, objected to the NFL’s proposal of creating a standby committee of officials available to facilitate the firing of any ref who should ever make a mistake.  But the absence of real refs doesn’t foreclose the NFL’s ability to absorb the money that fans and sponsors are intent on pouring into its pockets, so the Replacement Refs – aka the ‘scabs’ – were brought in to manage the first three weeks of action.

So who were these replacement refs?  That’s a great question, and a potential source of much scholarly debate, but from what I’ve been able to glean they apparently ranged from substitute teachers to chemical engineers to realtors.  The only things they all seemed to share were a decided lack of Ed Hochuli’s muscle tone and gross underqualification.

After one weekend of play, the general media consensus was that the refereeing wasn’t so bad, but in Week Two things quickly escalated from not so bad to very so bad.  Commentators could no longer resist the ‘compromising the integrity of the game’ discussion.  I’m always a little dubious of this phrase, mostly because I think the word ‘integrity’ should be used sparingly in the context of a game responsible for – among other monstrosities – bounty programs, Peyton Manning commercials, those cheese-hats that Packers fans wear, the Super Bowl half-time show, the mythologizing of rapists and dog-killers, sac dances, Ochocinco’s twitter feed, and Tom Brady converting on third and long… but yes, in essence I agree that in the absence of the real refs, something was certainly amiss.  I prefer to call it justice.

Under the replacement regime corruption ran rampant, like an unblocked blitzing cornerback.  Coaches strong-armed referees into sending the next call their way.  The replacements almost visibly crumbled under boos and jeers from hometown crowds.  Teams were penalized with no indication of which player had actually committed the offense.  Scrums broke out across the field like ninth grade acne.  The Patriots lost back-to-back games.  Brian Stropolo, a New Orleans resident whose Facebook page displays several pictures of himself decked out head to foot in New Orleans Saints gear, was scheduled to officiate a New Orleans Saints game up until a few hours before kickoff.  Finger-pointing reached epidemic proportions.  The fallout of these shenanigans was that games were taking four hours to be played.

But on roared the revenue stream.  So what if the media were mad?  So what if the players were enraged?  And sure, maybe the odd Detroit fan was compelled to throw his microwave off the balcony; he’d still be watching the Lions with a case of Bud Light next Sunday, because the entertainment value was unparalleled.  I was stapled to the tube, just dying to know what those scabs were going to pull next.   I guess, like Heath Ledger’s Joker in The Dark Night, “some people just want to watch the world burn”.

At the end of Week Three, when, on primetime national television, the replacements made what has already been labeled by many as the ‘worst call ever’, the tipping point was finally reached.  In the instantly infamous Monday night game between Seattle and Green Bay, the replacement refs finally blew a call that clearly and directly gave the wrong team the win.  The farce was exposed.  Players left the field before the game was officially over.  Twitter exploded.  Packers fans ate entire wheels of comfort cheese.  A serious chunk of gambling money – one of the more brazen estimates put the figure at a quarter billion dollars – exchanged hands in the wrong direction.  The NFL now had a serious PR issue.  Three nights later the real refs were back on the field.

What I find most interesting in all this is that all it took for simmering amusement to boil into outrage was for them to actually get it wrong.  The NFL is by no means a perfect little world.  The perils surrounding player safety grow yearly, and the ‘integrity of the game’ is just guff.  Still, when the wrong team went home with a win they didn’t earn, there was an overwhelming sense of injustice.

Football is its own little society with its own set of rules, and its citizens look to those rules for the same reasons we look to the law: for security (physical and financial); to punish bad behaviour; to provide predictability; basically, to reward our faith in it by simply getting it right.  But the law, in football, only goes as far as the ability of those whose job it is to understand and interpret it.  The NFL tried to underwrite the role of justice in their league, and it backfired.  They fought the law, and the law won.  But I’m still going to miss those scabs.

Refoos to Loose Sweeps the Foosball Tourney

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BY CHRISTINA GRAY, LAW III

On a rainy afternoon this October, the All Obiter Club and Indigenous Law Student’s Association teamed up to host their second Foosball Tourney. Four co-ed teams came to show the student body their best moves, but there were only two winners that day – Catrina Webster and Noah Stewart who go by the moniker “Refoos to Loos”. Vibert Jack and Joanne Barnum took home second place with “Baconbaconbacon (BBB)” –  Antonia Modkova and Adrien Habermacher – coming in third place.

There was a lot of excitement about the teams throughout the day in the corridors of Allard Hall in anticipation for the big match. Students were standing around nervously at lunch time trying to decide who would take home the cup.

Tension was in the air that rainy afternoon, as the crowd watched the ball shoot quickly from one side to the other by highly skilled foosball players. It was a matter of whose wrists could move faster and with greater intensity during those fast paced games.

In the first round, “Refoos to Loos” won two rounds against their international opponents BBB. At the end of the day, Refoos to Loos proved that their hand and eye coordination is best to none. At one point Vibert Jack (of  “I Guess That’s Why They Call It the Foos”) was heard saying in the final round, “Finally, we are beating them by one point”. Refoos to Loos also beat out the international duo – Antonia and Adrien. There was a good effort put out by “BBB”, but Noah’s trick move known as the “snake (a wind up that powerfully impacts the ball)” was a tough one to beat.

The next two teams to play were “I Guess that’s Why they Call it the Foos” (Vibert and Joanne) and “Leave the Gun and Take the Cannoli (Martina Zanetti and James “Jimbo” Boxall)”. The Foos won those two rounds against the former Reid team’ers to go on to the final round.

In the final round, the opponents put their game faces on to battle each other in the hopes of winning the coveted Foosball Cup, along with a $50 gift certificate to Salmon ‘n Bannock, and two prints by Don McIntyre and Mike Dangeli of the House of Culture. Both teams fiercely played two games to five points and Refoos to Loos won the match by taking both games. Noah and Catrina were ecstatic to win their limited edition prints and the cup, showing their delight with super enthusiastic jumping high-fives.

The second place finishers were content to choose their prize of Settlers of Catan, which was donated to the LSS in their honour. The crowd was hoping for giant Jenga to be chosen, but in the end the runners-up preferred the task of building roads, settlements, farms and what not to taking one from the bottom and putting it on top. In all fairness though, regular Jenga was chosen by the runners-up in the last foosball tournament.

The next Foosball Tournament will be in the spring with Danielle Eastveld helping out on the food front again. There are rumours that there may be jelly bean treats and the jumbotron blasting nostalgic hits that will certainly be remembered by anyone that was born before 1994. Be sure to sign up to play — if not for the anticipation of jelly beans, then definitely to show your school support for the aptly dubbed ‘Sceptics Club’.

Summer Job Search

BY JENNIFER LAU AND CHIARA WOODS

Regardless of whether you are in 1L or 2L or even if you want to article and practice law down the road, the summer is a great opportunity to gain some work and life experience, explore legal employment options in different work environments, and build your transferable skills.  What do 1Ls and 2Ls do with their summers?  Here is a sample of some things that 1Ls and 2Ls have historically done in the summer:

  • UBC Faculty of Law (i.e. research assistant, orientation coordinator, development assistant)
  • Research fellowships which may involve time at the law school, firm, or non-profit organization (Fraser Milner Casgrain Business Law Fellowship and Insolvency Internship, UBC Research Abroad Grant)
  • Internships (i.e. United Nations, Pivot Legal Society, BC Civil Liberties Association)
  • Private organizations (i.e. Best Buy Canada, LexisNexis Canada)
  • Government organizations (i.e. WorkSafe BC; Health Employers Association of BC)
  • Professional associations (i.e. Association of Professional Engineers and Geoscientists of BC)
  • Public Interest Groups (i.e. LSLAP, BC Centre for Elder Advocacy and Support, West Coast Environmental Law, BC Law Institute)
  • Law firms (small, medium, or large – and full-service or boutique)
  • Work in a non-law job and gain transferable skills
  • Or travel and see the world!

The Public Interest Work Placement Project will also fund 6 summer 2013 positions exclusively for UBC Law students.  These positions will be posted in February 2013.  Summer 2012 organizations included:

  • BC Coalition of People with Disabilities
  • CHIMO Crisis Services
  • First United Church
  • Golden Women’s Centre Society
  • Nelson CARES Society; and,
  • Pivot Legal Society.

If you are considering opportunities with public interest organizations, please refer to the Public Interest Legal Careers Guide, the Public Interest Opportunities handoutand the Public Interest Funding Optionshandout and consider making an appointment on Symplicity to meet with Tracy Wachmann, our Public Interest Coordinator.

For more information, please see the Summer Employment after First and Second Yearhandout and visit the Job Postings on Symplicity. To see what jobs have been posted in the past (and when), click on “Job Leads” within the Job Postings section to see expired postings.

In consideration of your summer employment, take the time to self-assess, evaluate your current experience, and look for a summer opportunity that develops and strengthens your skills. We encourage students to take initiative and contact smaller law firms, corporations, public interest organizations, government organizations, and other employers with whom they would be interested in working this summer. It’s never too early to start thinking about your job hunt, but do remember that most employers do not hire summer students until February, March & April, so stay realistic when contacting them.  The CSO’s handouts on Finding Unposted Jobs, Networking, and Informational Interviewing are excellent resources for tapping into the many hidden job opportunities.

Lastly, remember that only 25 – 30% of 2Ls at UBC Law work at larger law firms in Vancouver, Toronto, and Calgary during their 2nd year summer.  Jobs at the larger law firms for 1Ls are virtually non-existent in Vancouver, and fairly limited in Calgary, Ottawa, and Toronto. Take your summer to explore the many legal career opportunities outside of the traditional law firm environment and build your resume.

INTERVIEWS

It is one word that strikes fear into the hearts of many law students.  Your palms start to sweat and your hands may even shake.  What will they ask me?  Will I sound stupid?  I don’t even know in which area of law I want to practice!

It is normal to be nervous.  It may make you feel better to know that many law firm interviews are conversational.  The lawyers at the firm are just trying to get to know you as a person.  Once you have secured an interview, it is generally assumed that you are qualified for the job.  Therefore, marks do not matter (whew!).  One lawyer on the student committee of a national firm said that as an interviewer, he is trying to determine two simple questions:

(1)  Is this someone I would leave in charge of a file while I am away on holidays (here, the employer is evaluating your legal ability, client management skills and practicality): and

(2)  Is this someone I would want to sit in the office next to me for the next twenty years (here, the employer is evaluating your collegiality, friendliness and general fit with their office culture).

Even though your interview will generally be conversational, you should still prepare.  Preparation reduces nervousness (as much as possible!) and enables you to present yourself in the best possible light.  You should review your cover letter and resume and be prepared to answer the following types of questions:

  • Tell us about yourself.
  • Why did you go to law school?
  • How do you like law school? What is your favourite course/professor?
  • What practice area/kind of law are you interested in?  Why?
  • Why are you interested in our firm/office?
  • Do you have any questions for us?  What can we tell you about us?

Ideally, you will craft your answers to the above questions without sounding too rehearsed to highlight the type of skill set legal employers seek by drawing on examples from your academic, work and volunteer experience.  Your individual skill set is unique, but may include legal research and writing, analysis, advocacy, interpersonal skills (including client relations), mentoring, and the ability to multi-task and work well under pressure.  You should try to talk about things in which you are genuinely interested, as opposed to things you think the firm wants you to say or wants to hear.  When you talk about things you are passionate about, you will talk slower, be less nervous and more engaging. Remember to be positive about anything and everything you discuss in the interview.

Most government employers, and some firms may also ask behavioral interview questions. Behavioral interviewing is a technique used to evaluate a candidate’s experiences and behaviors in order to determine their potential for success. The theory behind behavioral interview questions is that the most accurate predictor of future performance is past performance in similar situations. Behavioral questions are very specific. You are asked to provide detailed examples of situations when you demonstrated certain attributes or skills. When answering, we recommend using the STAR approach as itallows you to structure your answers and highlight the skills that the employer is seeking. The STAR approach works to your advantage because it provides specific details and showcases specific skills. Answering behavioral interview questions with the STAR approach will differentiate you from other candidates who may provide standard answers. Details regarding the STAR approach are provided in the Interviewing Guide and there are also sample behavioral interview questions that you can use to prepare.

So on a final note, take the time to prepare yourself for your interview and then try to relax and take this opportunity to get to know the different employers.  The Interviewing Guide is available on Symplicity and at the CSO office for students to review.  Students can also sign up via Symplicity for a mock interview with Jenn, Chiara or Tracy.

Get in touch with Career Services

All roads lead to Symplicity (www.ubclawcareers.com).  If you do not have a Symplicity login, email careers@law.ubc.ca so that you can access our Document Library, review job postings, upload your resume, and make appointments with Jenn, Chiara or Tracy. We look forward to helping you with your job search!

Separate, but not Equal: Canada’s “Invisible” Workforce

BY KRISTEN SIVERTZ, LAW III

If you have consumed a food product sourced and shipped from anywhere in Canada recently, chances are that at some point in the supply chain one or more of its ingredients passed through the hands of a temporary foreign worker. Every year, thousands of workers enter Canada from overseas to fill low-skilled positions in the agricultural industry. This influx is particularly apparent in smaller communities. Leamington, Ontario, is a town of roughly 30,000. It is also known as the “greenhouse capital of North America” and recently became home to a Mexican consulate to support the thousands Mexican workers that are hired by Leamington employers every season.  Although temporary foreign workers play a significant role in one of Canada’s largest industries, the average Canadian knows very little about what that role is and why it is significant. This article will provide an overview of the legal status of workers under the Seasonal Agricultural Workers Program (SAWP), the constraints that status places on the exercise of their rights, and recent developments in the law that may (or may not) make all the difference.

The Seasonal Agricultural Workers Program (SAWP) began in 1966 as a bilateral agreement between Canada and Jamaica. It was intended to supply enough workers on a seasonal basis to fill positions left empty by Canada’s growing agricultural labour shortage. Between 2008 and 2011, the SAWP sourced over 27,000 workers on average per year from overseas. Currently, there are ­­­fourteen countries that participate in the SAWP: thirteen Caribbean countries and Mexico. Canada and Mexico signed a Memorandum of Understanding (MOU) in 1974. Under NAFTA, the number of workers sourced from Mexico has increased significantly. Mexico now supplies over 50% of workers hired under the SAWP with 15,809 in 2010 alone.

Under this MOU, Mexico is responsible for recruiting a pool of workers based on mutually agreed-upon eligibility criteria. The recruitment website of the Mexican Ministry of Labour and Social Security states that, in addition to citizenship and experience, workers must be between the ages of 22 and 45, married or in common law relationships, from rural areas, and have a third-grade minimum and a tenth-grade maximum level of education.

Canada is responsible for attracting and screening potential employers for the SAWP. The department of Human Resources and Skills Development assesses each application following an analysis of its effect on the labour market, and determines if there is a sufficient supply of local labour to fulfill the employer’s needs. Citizenship and Immigration Canada (CIC) then makes the final decision as to whether an individual worker will be issued a work permit.

The minimal obligations of employers and temporary workers are set out in a series of employment contracts between Canada, Mexico, and the 13 Caribbean countries, which represent one contracting unit. Workers employed in BC fall under a distinct set of employment contracts. These contracts require employers to meet basic provincial employment standards. However, the extent to which provincial labour laws apply to SAWP workers is a contentious issue and one that varies from province to province.

There is significant federal-provincial jurisdictional overlap with respect to foreign workers. Although local employment contracts, workplace safety, health, and seasonal housing standards fall under provincial jurisdiction as per section 92(13) of the Constitution Act, the federal government retains exclusive jurisdiction over “naturalization and aliens” under  section 91(25). This has the effect of placing temporary workers in a legislative limbo wherein neither level of government is willing to claim full responsibility for monitoring the treatment of SAWP workers by their employers and taking disciplinary action where necessary, as told by Kazi Stastna in “Canada’s migrant farm worker system—what works and what’s lacking”, CBC News (February 8, 2012) .

Temporary workers are frequently referred to in academic literature and news media as constituting an “invisible” workforce. Although they may live and work in Canada for up to eight months per year, there are are a number of factors that isolate them from the local community. Their accommodation must be provided by their employer and is typically on the same property as their workplace. There may also be significant language and cultural barriers,  which may make them reluctant to interact with local residents and vice versa. This isolation, compounded by ignorance of their rights and how to exercise them, can leave workers vulnerable to labour and human rights violations by employers. Extreme, but not uncommon stories of deplorable housing conditions, workplace accidents, withheld wages, fraud, and arbitrary deportation routinely make the news, raising serious doubts about “win-win” benefits of the SAWP.

Not surprisingly, it has been far easier to identify and assign blame for the SAWP’s failure to protect workers’ rights than to put forward solutions that work both in theory and in practice.  For instance, greater effort could be made before their departure or upon their arrival in Canada to ensure that workers understand their rights, when they have been violated, and what they can do about it. An independent and anonymous complaints process could also be made available. However, even with a complete understanding of their rights, workers may choose not to exercise them for fear of reprisal from their employers. Under the SAWP, employers may dismiss and repatriate workers with minimal cause and may even blacklist specific workers from the program. Further, given their close living and working relationship, it may be difficult for individual workers to register a complaint without drawing the attention of supervisors and co-workers.

It has been argued that unionization would give workers a stronger voice in negotiation with employers, leading to better living and working conditions. A number of legal actions challenging legislative barriers to collective action have been brought by and on behalf of agricultural workers. In Dunmore v. Ontario (Attorney General), 2001 SCC 94, the majority recognized the positive right of agricultural workers with permanent status or Canadian citizenship to collective action under section 2(d) of the Charter. The Court did not comment on the rights of temporary foreign workers. A second challenge to Ontario legislation was brought forward by the United Food and Commercial Workers Union (UFCW) in 2006, arguing that it barred SAWP workers from exercising their right to collective action. In Ontario v Fraser, 2011 SCC 20, the majority ruled that the Charter only protected the right to a “general process of collective bargaining, not to a particular model of labour relations” (at para 41).

The UFCW had more success before the BC Labour Relations Board. In 2009 and 2010, the UFCW brought two applications for union certification on behalf of temporary workers employed by two BC farms. In the first application (Greenway Farms Ltd, BCLRB B135/2009), the employer challenged the union’s certification under the Labour Code on the basis that its application to a federal program was unconstitutional. The Board concluded that the application of the Code would not conflict with the purposes of the SAWP; rather, it would add to the minimum protections provided by the federal employment contract. In the second application  (Sidhu & Sons Nursery Ltd, BCLRB B26/2010), the Board found that without limits to the scope of collective bargaining, a bargaining unit comprising all SAWP workers at the nursery was not practicable. It allowed the workers to pursue collective agreement rights in respect of matters unique to their interests under the SAWP, e.g. housing, rates of pay, access to medical care, dismissal and repatriation, etc. Although they achieved certification, it was not long before the SAWP workers at both locations voted to decertify. The temporary nature of their work and the continued fear that any evidence of pro-union sentiment would result in their dismissal and repatriation proved insurmountable.

In spite of these set-backs, there may be hope on the horizon. Three SAWP workers from Mexico recently filed a statement of claim in the Ontario Superior Court of Justice against the federal government and their former employer, Tigchelaar Berry Farms Inc (Armina Ligaya, “Mexican farm workers file suit against Canada” (November 24, 2011) CBC Canada). The statement alleges that their employer terminated and repatriated them without reason, thereby infringing their rights under section 7 of the Charter and sections 1(a) and 2(e) of the Canadian Bill of Rights. If the court rules in the workers’ favour, it may have a significant impact on SAWP workers’ ability to act collectively by limiting employers’ ability to arbitrarily repatriate and blacklist individual workers. However, it bears considering that any victory achieved by the plaintiffs in this case could be undermined by SAWP workers’ limited access to the Canadian justice system due to geographical barriers and the prohibitive cost of retaining counsel.  The plaintiffs in this case are fortunate to be receiving pro bono representation, but the vast majority of SAWP workers that seek to defend their newly won rights will not be so lucky.

From a purely administrative and economic perspective, the SAWP is a highly successful international labour mobility program. It addresses the low-skilled labour shortage in Canada’s multi-billion dollar agricultural industry, while providing workers with a higher salary than they would otherwise receive for the same work in their home countries. However, from a more extreme labour and human rights perspective, the SAWP provides an inexpensive source of foreign workers to fill dangerous, poorly compensated, and often degrading positions that few—if any—permanent residents or citizens of Canada would accept. The number of temporary workers in Canada is growing every year, not only in the agricultural industry, but also in customer service and information technology, among other areas. Far from being “invisible”, temporary foreign labour is well on its way to becoming a permanent feature of the Canadian labour market (see CIC annual statistics 2002-2011). An important question that remains unanswered is whether the economic benefits of the SAWP are worth the less tangible costs to the workers themselves and to Canada’s international reputation in the field of labour and human rights.

I would like to thank Robert Russo, PhD, UBC Law 2012, for his research and guidance on this topic.