As a supposed “fast-track” to permanent residence, the Yukon’s nominee program is failing to deliver for those candidates who find themselves the unwilling victims of some of the territory’s less scrupulous employers.

As a result of an independent investigation commissioned this past summer by the nominees office, part of the Yukon government’s advanced education branch, the program has overseen the wrongful termination of several employees who have found themselves the unwilling victims of Tags Food and Gas in Whitehorse.

“Wrongful” in the sense as defined within the Yukon Employment Standards Act and elsewhere.

The employer was also subject to two ex-employees’ allegations of under-remuneration in June 2012.

They effectively accused the employer of the “clawback” of their hourly wage, subsequently subject to an employment standards office investigation and found to be true, with a “net underpayment” to the tune of “a few hundred dollars,” in the own words of the employer, Pret Sidhu.

Yukon NDP MLA Lois Moorcroft recently reiterated that “We then raised the issue with the minister at the time (Scott Kent), and specifically the need for an audit.”

An audit was deemed “unnecessary” back in 2012.

The same employer was suspended from the nominee program this past summer as a direct consequence of demands placed upon other employees.

These demands formed the core of a separate investigation during the summer at the instigation of the investigations unit.

Last May, Mark Hill, the then-communications director, confirmed that “a written requirement by the employer for a nominee to provide letters/call promoting the employer may also be illegal and unenforceable.”

The specific demands, placed as a precondition of the employer’s continued sponsorship, were also later found to be illegal and in contravention of Section 50 of the Employment Standards Act.

At least two employees, both of whom were included within the summer investigation, were forced off the process of application for permanent residence. In at least one case, their application was later refused by Citizenship and Immigration Canada (CIC) as a direct consequence.

An employer’s offence of this nature, found to be contrary to the act (2002), can carry a fine of between $500 and $10,000.

Furthermore, according to Hill, “If we find the employer is engaged in illegal conduct relating to (temporary foreign workers) or nominees, we will ban them from participating in the program for up to three years.”

Permanent residence applicants are effectively contractually tied to an employer through the program’s tri-partite agreement memorandum.

However, they are legally allowed to continue employment during the period of an expired work permit by virtue of them being granted “implied status” during the period of their permit renewal.

It also protects the employer and allows them to continue sponsorship – a fact unknown or unrecognized by Tags Food and Gas management.

Premature and wrongful termination forces the employee to return to square one on the process of their seeking permanent residence.

That process involves the re-submission of documents covering medical and police clearances from both here in Canada and their country of origin, as well as the considerable time and expense of translation, notarization and recorded delivery to CIC offices on the east coast.

On a minimum wage, this is not an insignificant expense.

Since the program’s inception in 2006, limited statistics have been produced on its take-up other than a 2010 document listing 388 employees who have worked with 124 employers, mostly to mutual benefit in the Yukon.

Formal requests for more accurate statistics for the most recent four years were not acknowledged by the nominees office this month.

The program is quite separate from the problematic Temporary Foreign Worker program here and elsewhere in the west.

It’s also different from the business class nominee application processes administered in Prince Edward Island in 2008.

In that scenario, tens of thousands of dollars were to be invested in active business interests (in which the immigrating investors were disallowed an active role in the business, causing significant “reputational damage to Canada,” in the words of then-Immigration minister Jason Kenney).

It clearly does, however, fall short in other key areas, consistently to the detriment of the would-be immigrant class who make up a key and core component of the territory’s workforce.

These are economic class migrants without tens of thousands of dollars to invest. They may be “critical impact workers”, but they figure far lower on the scale of value-addition when illegal sponsorship issues arise, as they have here in recent months.

The NDP’s Moorcroft adds that “We have a responsibility to these people, to avoid exploitation of economic class immigrants, and this demonstrates the need for an audit more than ever.”

In the two years since Tags was subjected to their first investigation, one of their longstanding employees, Ryan Pataray, has written to media here that he “saw a lot of transition” in his workplace.

He was one of six employees (two of whom have subsequently left the workplace) who visited CBC Yukon’s offices this past summer to try to set the record straight from two years ago. The CBC has yet to broadcast the requested “balance”.

Another ex-employee was later described as “one of the best employees we have ever had” by the employer in question here, routinely delivering half an hour of unpaid overtime with each and every shift; an exemplary employee acknowledged in that they “never once called in sick.”

They find themselves cast aside by Canada, as their wrongful removal from the nominee program resulted in an immediate cancellation of their permanent residence application (a process without any right of appeal) as “they are deemed to be in violation of the Immigration and Refugee Protection Act,” according to CIC media spokesperson Sonia Lesage.

Yukon NDP MLA spokeswoman Kate White says, “I find this shocking and appalling.”

It also raises the question of just who the Immigration Act in question actually serves to “protect.”

Tags’ Sidhu was provided with the opportunity to respond to the general and specific issues described here, but declined to do so.

The current program is mis-administered to the extent that, in the case of the Yukon this year alone, more than one employee, fired for apparently legitimate reasons, was later rewarded with full permanent residence on the grounds that the employer in question simply failed to report the firing.

There are several cases of nominees returning to their home countries before completion of their terms of service, to be advised that their applications have been successful.

The Yukon program is also being undermined by core issues impacted by its final administration by federal departments which are issuing the new bridging open work permits.

Their function is to tide over (to “bridge”) the passage of PR applicants such as those here in the territory who are legally obligated to seek new employers during transitions enforced by offending employers such as Tags.

Issued at cost by the federal immigration office, the work visa (specific to the Yukon Territory to avoid the risk of losing the employee to another jurisdiction) was described as “garbage” by Marius Curtenau, the immigration manager for the Yukon.

The future begins to look dark for all parties, not least the victimized employees, in view of the fact that the Department of Education here “is due to play a larger role in federal-territorial integration” in the future, according to the ombudsman’s office here in Whitehorse.

In the short term, the NDP is calling for fairness and the introduction of a means in which applicants for permanent residence have recourse to a process whereby they can formally appeal such transparent injustices (and impending deportation orders).

There is an immediate need for oversight and advocacy.

In the words of one of the victims of the system failures this year in the territory, “I just don’t want it to happen to anyone else.”

There is nothing at present to stop it.

Peter Ion is a Yukon-based science writer and researcher.

By Peter Ion
Special to the Star