Appendix C: Undocumented Workers’ rights at work

If you are experiencing abuse or are injured at work, “there are laws that apply to anyone working in Ontario, including all migrant workers—whether they’re working with a valid work permit” and Social Insurance Number (SIN) or not. When your boss hires you, they might ask if you have a work permit and valid SIN. If they hire you and you do work for them without a permit and valid SIN, they cannot later say that you don’t have rights because you don’t have a permit or valid SIN. Your employer may have also asked you to sign a contract that says you won’t make any claims or you agree to lesser wages, etc. Even if you signed something like this, you still have rights. Sometimes the boss is working with an immigration consultant or agent through whom your wages are paid, or who asks you to work for a specific employer, etc. They may deny being your employer (or deny that you are an employee). You still have rights. Some basic rights at work include: 

• Basic rights under the Employment Standards Act (ESA): You have the right to be paid for the work you did (even if you were being paid in cash), termination/severance pay, overtime (or being paid for the hours you actually worked with exceptions), being paid at least the minimum wage (as applicable), protection against unauthorized deductions from wages, protection against reprisal (being punished for asserting your rights at work). You have the right to file a claim with the Ministry of Labour (which processes claims from undocumented workers and has no obligation to report your status to CBSA or Immigration) 
• Health and Safety: Under Occupational Health and Safety laws in Ontario, you have the right to refuse unsafe work, if you are let go or if you are injured at work, you have the right to make a Workplace Safety and Insurance Board (WSIB) application (the WSIB will process your claim regardless of your status in Canada and is not supposed to report your status to CBSA or Immigration)
• Human Rights: under the Ontario Human Rights Code you have the right to be free of harassment and discrimination on the basis of your immigration status, or regardless of your immigration status on the basis of another ground such as race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, disability, age, marital status, family status and record of offences (criminal record). You also have the right to make an application to the Human Rights Tribunal of Ontario (the Tribunal will process your application regardless of your status in Canada, and may ask about  your status if it is relevant to your claim but should not report your status to CBSA or Immigration)

When you try to enforce your rights, and you’re not working under a valid work permit, there may be a risk your boss may report you to the CBSA for not having a valid work permit. So, even if CBSA does not come to your workplace, there could be a risk of detention and deportation when pursuing legal or organizing strategies around abuse or injury at work. If you are making a worker’s rights claim (such as to the Ministry of Labour, Workplace Safety and Insurance Board or Human Rights Tribunal of Ontario), connecting with a legal clinic or an organization like the Workers’ Action Centre is a good idea to make a safety plan in case your employer reports you to CBSA.

There may also be immigration issues you need to navigate while pursuing your workers rights. For example, you can fight for wages and other rights for work you were doing that you didn’t report to immigration. But, the unreported or unauthorized work may cause issues to arise with any current or future immigration applications. Even though immigration status is not a requirement to assert your workers’ rights, you may be faced with a situation where you might have to try and regularize your status to remain in Canada while your workers rights claim is processed (your claim will be processed whether you have status in Canada or not, but just having a workers’ rights claim in process does not give you the right to remain in Canada). Seek legal advice about what options might be available to you to regularize your status in Canada while you pursue your workers’ rights claims.  

Important note: This guide was created by organizations in Ontario, but the unfair immigration rules discussed here affect people across Canada. If you live in a different province, we encourage you to connect with a migrant justice organization in your area. You can find some of them here: About Migrant Rights Network – Migrant Rights Network

Resource	Contact Info
Legal Aid Ontario (LAO) – Find A Legal Clinic	https://www.legalaid.on.ca/legal-clinics/
Workers’ Action Centre (WAC)	720 Spadina Avenue 2nd floor, Suite 223 Toronto, Ontario M5S 2T9 Tel: 416-531-0778
Industrial Accident Victims’ Group of Ontario (IAVGO)	1-877-230-6311
Parkdale Community Legal Services (PCLS)	1229 Queen Street West, Lower Level Toronto, ON, M6K 1L2 Tel. (416) 531-2411 Email: intake@pcls.clcj.ca Monday, Tuesday, Thursday and Friday, 9am-5pm (closed between 1pm-2pm daily) * Provides legal and other services free of charge, including in the area of immigration and employment law to low income individuals in Parkdale and Swansea neighbourhoods in Toronto

Important note: There are organizations across Canada fighting for migrant justice and Status for All that may be able to support you with information relevant to where you live. You can find some of them here: About Migrant Rights Network – Migrant Rights Network