A nanny caught in the middle

The life of Filipino overseas workers is not exactly a bed of roses as many aspiring migrant workers from the Philippines would like to think. They have been called “new heroes” by then-Philippine President Gloria Macapagal-Arroyo because of the remittances they send home which help the government pay its foreign debt and keep the national economy afloat.

But the most unfortunate among these workers would come home in boxes, repatriated from the countries where they worked by the Philippine Consulate or the Philippine Overseas Labour Office, which is more popularly known to overseas Filipino workers as POLO. Others would end up in foreign jails on cooked-up charges by their employers. Many would become victims of abuses and exploitation because the labour or employment laws of their host countries do not cover them for protection from abusive working conditions.

Nanny abuse, for example, became front page news in 2009 when three Filipino nannies accused their employer, a Member of Parliament (MP Ruby Dhalla) from the riding of Brampton-Springdale in Ontario, for overworking and exploiting them. Their stories of abuse were featured in a series of articles in The Toronto Star on the exploitation of foreign workers, prompting the Ontario provincial parliament to consider legislation that would protect nannies from unscrupulous employment agencies and abusive employers.

One of these three nannies, Richelyn Tongson, would stick with her allegations that she was exploited and abused by filing a claim in court against the MP and her family for unpaid overtime wages. The other two, who were equally vocal in their accusations, would content themselves in supporting a Filipino-led coalition to campaign against the re-election of the aforementioned MP.

Tongson versus the Dhallas

This was a high-profile case by all means. Ms. Tongson, the abused nanny was represented pro bono until the settlement negotiations by Charles Sinclair of Sack Goldblatt Mitchell LLP, one of Canada's leading labour law, civil litigation and criminal law firms. On the other side of the fence representing the embattled MP, her brother Neil Dhalla and their mother Tavinder Dhalla, is Howard Levitt, a leading authority on employment law and member of Lang Michener Labour and Employment Law Group, another prominent Canadian business law firm.

At stake in the case is not just the monetary claim which was a very miniscule amount by the standards of the prominent law firms representing their clients. It was, in fact, a small claims court matter where claimants and defendants are normally unrepresented by lawyers, not to mention by powerhouse law firms. In Quebec, for example, litigants in small claims court are not allowed to be represented by lawyers. But this is not an ordinary small claims court dispute. A much bigger issue is at stake here: whether MP Dhalla and her family abused her nanny.

By May 20, 2010, Ms. Tongson’s claim was scheduled for a mandatory settlement conference. At this stage, a referee or a judge of the Small Claims Court would meet with the litigants and their lawyers to canvass the possibility of a settlement. It makes sense, for most civil cases usually do not end up in trial and are settled amicably by the parties. For the Dhallas, it gives them every motivation to settle now and put the matter to rest instead of it haunting the Dhalla campaign for re-election.

What happened during the settlement hearing and afterwards would make quite an interesting script for a sequel of TV’s Law and Order.

Attempts toward settlement

Based on a sworn affidavit made by Charles Sinclair, Ms. Tongson’s original lawyer, the settlement hearing proceeded without Ms. Tongson who could not attend because her employer would not give her leave for that day. However, Ms. Tongson made herself available by telephone in case she needed to answer some questions from the settlement judge or any of the parties.

Lest we forget, the POLO in Toronto requested to attend the hearing as an observer. In the words of the Philippine Labour Attaché, Frank Luna, in his email to Mr. Sinclair: “Manila is interested in the outcome of the case, which affects our national. We will not participate in the legal discussion.”

Of course, the POLO also has a stake in this case, in making sure the interests of Ms. Tongson, a Filipino overseas worker, is heard in court. Every Labour Attaché has the task of assisting Filipino migrant workers on all problems arising out of employee-employer relationships and ensuring that labour and social welfare laws of the host country are fairly applied to Filipino migrant workers, although in the past, Mr. Luna has been criticized for being insensitive to the plight of Filipino nannies in Toronto.

Mr. Luna showed up that day but was not allowed in the hearing room because he was not Ms. Tongson’s counsel. He waited outside the room for the duration of the hearing.

During the settlement hearing, the pre-trial judge put Ms. Tongson on the speaker phone and asked a number of questions. Neither the defendants nor their lawyer asked her any question. Thereafter, the pre-trial judge made a settlement proposal which Mr. Levitt, counsel for the Dhallas, and Mr. Sinclair discussed between them in view of arriving at a settlement.

After some discussions, both lawyers arrived at a settlement. The defendants would pay Ms. Tongson $5,000 and the latter would execute a mutual release that included a confidentiality clause and dismissal of the claim against the Dhallas.

Mr. Sinclair called Ms. Tongson to explain to her the settlement proposal. He believed Ms. Tongson was pleased with the proposal and he was instructed to accept the settlement on her behalf. Mr. Luna was present all the time when Mr. Sinclair was talking to Ms. Tongson on the telephone. Mr. Sinclair asked Mr. Luna to speak to Ms. Tongson in Tagalog to ensure that she understood the terms of the settlement. After talking to Ms. Tongson, Mr. Luna told Mr. Sinclair that she understood and she was in agreement with the proposed settlement. Well, Mr. Sinclair did not really know what Mr. Luna actually said to Ms. Tongson at that time. It was only later that he came to know what happened when the proposed settlement did not push through after Mr. Sinclair made several attempts to negotiate with the defendants’ lawyer to rewrite the final draft of the settlement agreement. He could not get hold of Ms. Tongson to come to his office until he realized that she had refused to see him to finalize and sign the agreement. It was at this point that Mr. Sinclair sensed something was wrong, either Ms. Tongson was getting legal advice from someone other than him or someone other than Ms. Tongson was emailing him using her email account. Unable to speak with his client, he decided to withdraw his retainer and terminate his legal services to Ms. Tongson.

Sometime in November 2010, Mr. Sinclair received an email from Pura Velasco, a community activist who had referred Ms. Tongson to his firm at the outset. Ms. Velasco’s email confirmed his suspicions that someone was advising Ms. Tongson and writing the emails to him. According to Ms. Velasco’s email attached to Mr. Sinclair’s affidavit, it was Frank Luna and Magdalena Gordo, the other nanny who earlier accused the Dhallas of abuse, who had opened the email account for Ms. Tongson. Ms. Velasco said Ms. Tongson has no access to a computer and doesn`t even know how to operate one.

Why would Frank Luna and Magdalena Gordo even make up this scheme, and pretend they were sending emails from Ms. Tongson? Did Mr. Luna overstep the boundaries of his task as Labour Attaché in protecting Ms. Tongson’s interest that he wanted to know everything that was going on between her and Mr. Sinclair? Was Ms. Gordo’s involvement motivated by a group’s campaign to unseat MP Ruby Dhalla from her riding?

Settlement negotiations broke down

What could be the main reason for the breakdown of the settlement negotiations between Ms. Tongson and the Dhallas? The new lawyer for Ms. Tongson, Raffy Fabregas or his successor since his transfer to another firm, made a motion to quash the settlement because of the inclusion of a gag order that would prohibit Ms. Tongson from discussing the abuses she suffered as a nanny for the Dhalla family.

Was it Ms. Tongson’s original idea to preserve her right to speak against the Dhallas assuming that she signed the proposed settlement? Or was this a mere ruse concocted by Frank Luna and others in order to continue the campaign against Ms. Dhalla so she would not get re-elected in the May 2nd federal election?

On February 9, 2011, Mr. Sinclair received a telephone call from Ms. Tongson, the first time they spoke after the termination of their retainer. According to the affidavit of Mr. Sinclair, Ms. Tongson was profusely apologetic, telling him that she was not the one who had written the emails to him.

Ms. Tongson is now represented by a lawyer from Mamman Frankel Sandaluk and there is no sign of a possible settlement before the May 2nd federal elections. Should Ms. Dhalla lose her bid for re-election, one could certainly expect her to proceed with the defamation suit against Ms. Tongson, which has already been issued by the court but has not been served yet.

Mr. Frank Luna’s term as Philippine Labour Attaché continues to be beset by one controversy after another: the lingering complaint against him as being insensitive to Filipino nannies, his run-in with Filipino journalists in the community whom he called “morons,” and now this suspicion that he might have been overzealous in his job by interfering with the work of a lawyer on the record.

Meantime, Ms. Tongson’s redress for damages she suffered from the Dhalla family remains in a tight spot. The amount of settlement originally reached by the parties would further be diminished by legal fees she must pay to her new lawyer, who may not be acting pro bono like Mr. Sinclair. When all this is over, Ms. Tongson becomes a willing victim of competing interests between her compatriots – caregivers pitted against caregivers in the Filipino community, obviously the handiwork of those so-called leaders benefiting from largesse parlayed by Canada Immigration, and the ineptitude of a Labour Attaché to protect her rights as an overseas worker.

Nannies’ new conundrum

They thought the program offers them a pathway to permanent residence after completing their work contract. But the new rules for temporary foreign workers which took effect last April 1, 2011 say otherwise. It’s not with certainty. The devil is in the details, as the idiom goes.

Effective April 1, Canada will now subject temporary foreign workers to a four-year cumulative duration limit. This means that temporary foreign workers in Canada, including live-in caregivers, may only work for a maximum of four years. After reaching this limit, temporary foreign workers must go back to their home countries, wait for another four years to lapse before re-entering Canada again as temporary workers.

Orwellian doublespeak

Canada's Minister for Citizenship, Immigration and Multiculturalism Jason Kenney.
Photo courtesy of dmix06.

This must be a big blow to Filipino live-in caregivers and their advocates who have embraced Canada’s Citizenship, Immigration and Multiculturalism Minister Jason Kenney as their hero. Mr. Kenney, who has been riding high on his status as a folk hero to many Filipino women workers in Canada, is guilty of Orwellian doublespeak. He has promised before that nannies will not be covered by the new regulations, but the details clearly say that that would be subject to certain preconditions. Just like the time when Mr. Kenney said there would be no more need for caregivers to undergo a second medical examination when applying for permanent residence, yet the rules still state that medical officers overseas retain the right to examine for excessive demand. This includes, for example, those who may have illnesses or other inadmissibility issues which may impact on the ability of the government to provide health and social services.

Of course, there are exceptions to the new rules but not enough to guarantee that live-caregivers will not be subjected to the Conservative government’s policy of treating immigrants as mere economic units that they can dispose at will. This government seems bent on simply exploiting temporary foreign workers every four years based on supply and demand instead of opening up opportunities for skilled workers to migrate permanently to Canada which the country really needs to replenish its greying population.

Migrant workers in Picton, Ontario. Photo courtesy of mariza.gaspar.

In the words of Minister Kenney: “We saw a need for clear regulations to better protect workers from poor treatment and to ensure that the Temporary Foreign Worker Program continued to address short-term labour and skills shortages.”

Seasonal agricultural workers who come to Canada to work during harvest time are exempt from the four-year limit. Live-in caregivers who have applied for permanent residence after completing their contract are not covered by the rules if they have received an approval in principle letter. And so with other temporary foreign workers such as those in managerial or professional occupations, those employed under an international agreement, and those exempt from the Labour Market Opinion (LMO) process.

How will the new rules negatively affect Filipino caregivers in Canada?

Under the new rules, visa officers will issue initial work permits to live-in caregivers that will be valid for four years plus three months. A live-in caregiver must complete the employment requirement in her contract within four years in Canada, while the additional three months allow for a transition period to apply for permanent residence.

Most live-in caregivers can easily complete their contract of employment in less than three years, allowing them enough time to apply for permanent residence and continue working as caregivers while waiting for the approval of their applications for permanent residence (PR). But herein lies the problem: when is that approval-in- principle letter going to be in the mail?

No reprieve for varying situations

Not all caregivers are in similar situations and would expect smooth processing of their PR applications. Some would have problems with family members such as their spouses or children who are supposed to be examined before a live-in caregiver’s PR application is approved. A live-in caregiver’s spouse in the Philippines, for example, could be stubbornly uncooperative and would not bring him and the children to a medical examination. Or he would not simply fill out the required documentation. He would rather simply receive money remittances every end of the month from his wife who works like a slave in Canada to support the family. There are hundreds of husbands who prefer this type of arrangement so they could carry on with their new-found lifestyle of freedom and the luxury that Canadian dollars bring. An obstinate and uncooperative husband could delay the PR application process for an inordinate time, while the hapless nanny continues to wait for the approval in principle letter of her application.

Or, the marriage between the nanny and her husband has broken down due to the strains of a difficult and long separation or perhaps, either one of them is now in a relationship with another person. The wife then decides to apply for divorce which she needs to show to Canada Immigration as proof of the marriage breakdown. This again will delay the processing of the PR application. Let’s also mention that if there are minor children involved, the longer the process will take especially if the husband refuses to allow the children to travel to Canada in order to join their mother.

As in some cases, one of the children would have medical inadmissibility issues such as a child having Down syndrome or has a heart problem which the visa officer deems as imposing a heavy burden on Canada’s health and social services. So, the PR application will be denied. Under the rules, all family members of the live-in caregiver, whether accompanying the principal applicant or not, are required to be examined. Live-in caregivers cannot become permanent residents if any of their eligible family members are inadmissible.

I have encountered a number of cases where the PR applications of live-in caregivers have been unnecessarily delayed. Some of them have been here in Canada as temporary workers for over five years because their PR applications were either delayed due to bureaucratic red tape or disallowed because of medical inadmissibility issues. The new rules will not protect them as Mr. Kenney has promised. Many of these caregivers have already received removal orders.

It is not important for immigration officers to know whether live-in caregivers will seek permanent residence after completing their work contract. The question is whether an immigration officer is satisfied that the person would not stay in Canada illegally. This is what their Operations Manual directs them to find out. Advocates of Filipino caregivers in Canada should wake up and face this grim reality, and stop cuddling Mr. Kenney and the Conservative Party.

The present Conservative government under Stephen Harper has not done much for the benefit of immigrants. Mr. Harper tried to overhaul Canada’s system of accepting refugees and skilled workers. He cut the right of landing fee to half of the old fee of $975, and many ethnic minorities shifted their support to the Conservative Party. The Conservative government has imposed stricter conditions for refugees to enter Canada and cut funding for group sponsorships for refugees from countries ravaged by civil strife. Temporary foreign workers will now have a four-year limit on the length of time they may work in Canada.

What’s next?

Filipino caregivers hold rally in Toronto.

This year, there are over 150,000 people waiting for 11,200 visas. That would take about 14 years to process. Sponsorship of parents would be next if the Conservative Party wins a majority of Parliament’s seats this coming May 2nd federal election. They have already made known that they prefer to bring in younger family members who can work and therefore pay taxes, rather than older parents who would only sap the country’s pension or social assistance programs.

Canadians, especially the blocks of new Canadian voters who may likely make or break a government, need to hear solutions to our immigration dilemma. We’re tired of hearing the same pledges every time there is an election from both the Liberals and Conservatives. There are gaping holes in their credibility fences. We will need a giant grain of salt if we would only listen to their promises.