(Additional sources are identified in the Background Paper)
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[1] Sources for the issue of the changing nature of work include the following: Economic Council of Canada, Good Jobs, Bad Jobs: Employment in the Service Economy (Ottawa: 1990); Ron Saunders, Making Work Pay: Findings and Recommendations from CPRN’s Vulnerable Workers Series, Research Highlights, Number 6 (May 2006); Law Commission of Canada, Is Work Working?: Work Laws That Do A Better Job: Discussion Paper (Ottawa: Law Commission of Canada, 2004); Kerry Rittich, Vulnerable Workers: Legal and Policy Issues in the New Economy (Ottawa: Law Commission of Canada, 2004); Judy Fudge, Eric Tucker & Leah Vosko, The Legal Concept of Employment: Marginalizing Workers (Ottawa: Law Commission of Canada, 2002); J. Bernier, G. Vallée & C. Jobin, Social Protection Needs of Individuals in Non-Standard Work Situations, Synopsis of Final Report (Quebec, Ministry of Labour, 2003); Leah Vosko ed., Precarious Employment: Understanding Labour Market Insecurity in Canada (Montreal & Kingston: McGill-Queen’s, 2006); Judy Fudge, “Beyond Vulnerable Workers: Towards a New Standard Employment Relationship” (2005) 12:2 Canadian Labour & Employment Law Journal 151, 159.
[2] Dunmore v. Ontario (Attorney General), 2001 SCC 94, [2001] 3 S.C.R. 1016 [Dunmore]; the Ministry of Labour uses the term to refer to young workers entering the employment market for the first time, particularly in the context of training, and workers who have greater health and safety risks.
[3] For a statistical breakdown, see Vosko, note 1, 23, table 1.2. Also see Marcia Almey, Women in Canada: Work Chapter Updates (Statistics Canada, 2006), online: http://www.statcan.gc.ca/pub/89f0133x/89f0133x2006000-eng.htm#8. According to Almey, “[W]omen have accounted for about seven in 10 of all part-time employees since the late 1970s.”
[4] On this issue, see Cynthia Cranford, Judy Fudge, Eric Tucker and Leah Vosko, Self-Employed Workers Organize: Law, Policy, and Unions (Montreal & Kingston: McGill-Queen’s, 2005); OECD, Partial Renaissance of Self-Employment, OECD Employment Outlook, 2000, online: http://www.oecd.org/dataoecd/10/44/2079593.pdf; Immigrant Women’s Center, “Women and Self Employment”, online: http://www.stjosephwomen.on.ca/index.php?page=self. Almey, note 3.
[5] See Sylvia Fuller and Leah F. Vosko, “Temporary Employment and Social Inequality in Canada: Exploring Intersections of Gender, Race and Immigration Status” (2008) 88:1 Social Indicators Research 31; Laurie Monsebraaten, “Fighting for dignity on the job” The Toronto Star (11 July 2009), online: http://www.thestar.com/article/664487.
[6] Workers’ Action Centre, Working on the Edge (Toronto: Workers Action Centre, 2007) 18.
[7] See, for example, Vic Satzewich, Racism and the Incorporation of Foreign Labour: Farm Labour Migration to Canada Since 1945 (New York: Routledge, 1991); Irving Andre, “The Genesis and Persistence of the Commonwealth Caribbean Seasonal Agricultural Workers Program in Canada” (1990) 28 Osgoode Hall Law Journal 244; Tanya Basok, Tortillas and Tomatoes: Transmigrant Mexican Harvesters (Montreal & Kingston: McGill-Queen’s University Press, 2002); Kerry Preibisch, “Foreign Workers in Canadian Agriculture: Not an All-Male Cast” FocalPoint (May-June 2007) 8; Ellen Wall, “Personal Labour Relations and Ethnicity in Ontario Agriculture,” in V. Satzewich ed., Deconstructing the Nation: Immigration, Multiculturalism and Racism in 90s Canada (Toronto: Garamond, 1992) 261.
[8] For information, see Backgrounder, Improvements to the Temporary Foreign Worker Program: Temporary Foreign Worker Program – Federal Roles, online: Citizienship and Immigration Canada, http://www.cic.gc.ca/english/department/media/backgrounders/2010/2010-08-18.asp#tphp%20idtphp.
[9] See, for example, Maria Deanna P. Santos, Human Rights and Migrant Domestic Work (The Netherlands: Martinus Nijhoff, 2005); Daiva K. Stasiulis and Abigail B. Bakan, Negotiating Citizenship: Migrant Women in Canada and the Global System (Toronto: University of Toronto, 2005); Agnes Calliste, “Canada’s Immigration Policy and Domestics From the Caribbean: The Second Domestic Scheme” in Jesse Vorst et al. eds., Race, Class, Gender: Bonds and Barriers, 2nd Rev. Ed., (Canada: Between the Lines, 1991) 136. There have recently been changes to the requirements live-in caregivers must meet to apply for permanent residence status: see the Citizenship and Immigration Canada website: http://www.cic.gc.ca/english/work/caregiver/index.asp. The live-in caregiver program’s permanent residence/citizenship track has been called “good practice” by the ILO in its report on a rights-based approach to labour migration: United Nations, International Migration Report 2006: A Global Assessment (New York: UN, 2009), online: http://www.un.org/esa/population/publications/2006_MigrationRep/report.htm. note 9, 93.
[10] This increasingly common employment relationship has been called “the boundaryless workplace”: Katherine Stone, “The New Psychological Contract: Implications of the Changing Workplace for Labour and Employment Law” (2001) 48 UCLA Law Review 519. Also see Judy Fudge, “The New Workplace: Surveying the Landscape” (2009) 33 Manitoba L.J. 131.
[11] On the measurements of precarious work, see Jamie Baxter, “Federal-Provincial Gaps Affecting Precarious Workers in Ontario” (December 2009) (on file with the LCO); Cynthia J. Cranford and Leah Vosko, “Conceptualizing Precarious Employment: Mapping Wage Work Across Social Location and Occupational Context” in Vosko, note 1, 49.
[12] The dimensions of social location should be regarded not as independent or compounding, and not in isolation, but rather in intersecting relationship to each other. (For a rationale for this, see Sylvia Fuller and Employment Law” (2001) 48 UCLA Law Review 519. Also see Judy Fudge, “The New Workplace: Surveying the Landscape” (2009) 33 Manitoba Law Journal 131. Leah F. Vosko, “Temporary Employment and Social Inequality in Canada: Exploring Intersections of Gender, Race and Immigration Status” (2008) 88:1 Social Indicators Research 31, 48. For other sources on social location, see Sylvia Fuller, “Temporary Employment and Social Inequality in Canada: Exploring Intersections of Gender, Race, and Migration” (2008) 88:1 Social Indicators Research 31, 34; Law Commission of Canada, note 1.
[13] The relationship between precarious employment and older adults is an area of particular concern considering the aging Canadian population. The next 20 years are expected to result in a significant demographic shift where the number of Canadians over the age of 65 is expected to almost double from 13.2 per cent to 24.5 per cent: Martin Turcote and Grant Schellenberg, Portrait of Seniors in Canada (Ottawa: Statistics Canada, 2006), online: http://www.statcan.gc.ca/pub/89-519-x/89-519-x2006001-eng.pdf. For programs relating to older adults, see Human Resources and Skills Development Canada, “Targeted Initiatives for Older Workers”, online: http://www.rhdcc-hrsdc.gc.ca/eng/cs/sp/hrsd/eppd/tiow.shtml. The program is cost-shared with the provinces and territories. Ontario is a participant with programs targeting workers between 55 and 64 who live in areas “hard hit by the recession”, specifically communities “with high unemployment, largely dependent on a single employer or industry and [with] a population of 250,000 or less”: Ministry of Training, Colleges and Universities, “The Targeted Initiative for Older Workers”, online: http://www.edu.gov.on.ca/eng/tcu/employmentontario/olderworkers.html.
[14] Specifically on employment disadvantages for persons with disabilities, see, for example, Gail Fawcett, Bringing Down the Barriers: The Labour Market and Women with Disabilities In Ontario (Ottawa: Canadian Council on Social Development, 2000); The Roeher Institute, Labour Force Participation and Persons with Disabilities Who Are Severely Disadvantaged in the Ontario Labour Market: Background Papers for the Working Group on Employment Equity and Persons with Severe Disabilities (North York, Ont.: The Roeher Institute, 1993). For the Ontario government programs relating to persons with disabilities and employment, see Ministry of Community and Social Services, “Don’t Waste Talent”, online: http://www.mcss.gov.on.ca/talent/.
[15] On the “gendering” of the workplace, see Cranford and Vosko, note 11. In particular, women are more engaged in domestic work performed within the household, ranging from child care to elder care to grocery shopping to other aspects of social reproduction. With respect to unpaid work doing housework, caring for children and caring for seniors, see Statistics Canada, “Time spent doing unpaid work, by sex 2008 Canada”, online: http://www.statcan.gc.ca/pub/11-402-x/2010000/chap/sc/tbl/tbl09-eng.htm This has consequences for health, leisure time and other aspects of life. For example, more women provide informal health care for a long-term condition than do men and women spend less time on social activities, more often cancel holiday plans, spend less time with their spouse, spend less time with children and postpone their education plans. See Statistics Canada, 2007 General Social Care Tables, Table 5-4 (Population of caregivers by selected consequences of providing informal care for a long-term health condition or physical limitation, by sex and age — Ontario), online: http://www.statcan.gc.ca/pub/89-633-x/2008001/t043-eng.pdf. Disparities in experiences and treatment of women and men within the employment relationship are important as systemic gender discrimination exacerbates precarious employment: Judy Fudge and Leah Vosko, “Gender, Segmentation and the Standard Employment Relationship in Canadian Labour Law and Policy” (2001) 22:2 Economic and Industrial Democracy 271.
[16] For an elaboration on these ideas, see Vic Satzewich, “The Political Economy of Race and Ethnicity” in Peter S. Li ed., Race and Ethnic Relations in Canada (2d ed.) (New York: Oxford University Press, 1999); Grace-Edward Galabuzi, Canada’s Economic Apartheid: The Social Exclusion of Racialized Groups in the New Century (Toronto: Canadian Scholars’ Press, 2006); Gillian Creese, “Racializing Work/Reproducing White Privilege” in Vivian Shalla and Wallace Clement eds., Work in Tumultuous Times: Critical Perspectives (Montreal & Kingston: McGill-Queen’s, 2007) 192.
[17] See, for example, Richard Spaulding, “Peoples as National Minorities: A Review of Will Kymlicka’s Arguments for Aboriginal Rights from a Self-Determination Perspective”(1997), 47 University of Toronto Law Journal 35.
[18] Statistics Canada data showed that immigrants in “economic families” (a group of two or more related people living in the same location) arriving in the preceding five years had a low-income rate of 32.6% in 2005, compared to the rate of 6.9% for their non-immigration counterparts, with a low-income rate of over 58% for unattached individuals compared to over 26% for non-immigration unattached individuals: Chantal Collin, Hilary Jensen, A Statistical Profile of Poverty in Canada (Ottawa: Library of Parliament, 2009) 22, online: http://www2.parl.gc.ca/Content/LOP/ResearchPublications/prb0917-e.pdf. The authors also refer at p.24 to studies showing that “individuals who belong to visible minority groups are more likely to experience poverty than those who do not”; for example, “[i]n 2004, 86% of recent immigrants with low incomes were members of a visible minority”, citing Dominique Fleury, A Study of Poverty and Working Poverty Among Recent Immigrants to Canada, Final Report (Human Resources and Skills Development Canada, 2007); also see Marina Jiménez, “Immigrants battle chronic low income”, The Globe and Mail (January 31, 2007) A5.
[19] Over 60% of Canada’s population growth occurs through immigration. One in five residents is born outside Canada and over half of immigrants come to Ontario, although immigrants are increasingly settling across the country. Increasing numbers of immigrants come from Asia, including the Middle East, with the proportion from Central and South America and the Caribbean and Africa increasing slightly between 2001 and 2006. For sources on immigration, see Statistics Canada, Report on the Demographic Situation in Canada: 2005 and 2006 Edition (Ottawa: Statistics Canada, 2008), online: http://www.statcan.ca/english/freepub/91-209-XIE/91-209-XIE2004000.pdf; Anthony Reinhart, “A nation of newcomers”, The Globe and Mail (December 5, 2007) A1; Tina Chui, Kelly Tran and Hélène Maheux, Statistics Canada, 2006 Census: Immigration in Canada: A Portrait of the Foreign-born Population, 2006 Census: Findings, online: http://www12.statcan.ca/census-recensement/2006/as-sa/97-557/index-eng.cfm.
[20] On temporary status immigrants, see Citizenship and Immigration Canada (CIC), “Facts and Figures: Immigration Overview – Permanent and Temporary Residents” (2008): Citizenship and Immigration Canada, online: http://www.cic.gc.ca/english/pdf/research-stats/facts2008.pdf [CIC, “Facts and Figures 2008”], 62: cited in Jamie Baxter, “Precarious Pathways: Evaluating the Provincial Nominee Programs in Canada” (March 2010 ) (unpublished paper on file with LCO).
[21] On the diversity of non-status residents, see the example of the Brazilian community: Brazil-Angola Community Information Centre, The Many Faces of Brazilian Immigrants in Ontario (Toronto, 2009) 40, online: https://tspace.library.utoronto.ca/bitstream/1807/24744/1/The%20Many%20Faces%20of%20Brazilian%20Immigrants%20in%20ON_English_2009.pdf.
[22] Costa Kapsalis and Pierre Tourigny, Duration of Non-standard Employment (Statistics Canada, Ottawa, 2004), online: http://www.statcan.ca/english/freepub/75-001-XIE/11204/high-1.htm.
[23] Cranford and Vosko, note 11, 64-65.
[24] Ministry of Labour, “Enforcement Activities: Investigations and Inspection Statistics” (2009), online: http://www.labour.gov.on.ca/english/es/report_card/rc_1.html.
[25] The Supreme Court of Canada has reserved its judgement in Attorney General of Ontario v. Fraser (32968), on appeal from the Ontario Court of Appeal which held that the Agricultural Employees Protection Act, 2002 was unconstitutional: Fraser v. Attorney General (Ontario) 2008 ONCA 760, (2008), 92 O.R. (3d) 481. For a summary of the case before the SCC, see the Supreme Court of Canada website: http://www.scc-csc.gc.ca/case-dossier/cms-sgd/sum-som-eng.aspx?cas=32968. In November 2010, the ILO ruled that the Agricultural Employees Protection Act, 2002 is a violation of human rights under the UN Conventions on Freedom of Association and Protection of the Rights to Organize and the Right to Organize and Collective Bargaining. For the Interim Report of the ILO Committee on Freedom of Association, see online: http://www.ilo.org/wcmsp5/groups/public/—ed_norm/—relconf/documents/meetingdocument/wcms_146695.pdf.
[26] The Canada-Ontario Immigration Agreement (Original signed November 21, 2005), online: http://www.cic.gc.ca/english/department/laws-policy/agreements/ontario/ont-2005-agree.asp; the agreement was extended in May 2010. The Agreement now has a specific part applying to temporary foreign workers: Annex G (Temporary Foreign Workers) of Appendix “A” of The Canada-Ontario Immigration Agreement, online: http://www.cic.gc.ca/english/department/laws-policy/agreements/ontario/can-ont-amend_agree.asp. Temporary foreign workers may shift their work status to one leading to permanent residency through the Canadian Experience Class program. The requirements for the Canadian Experience Class program conform to the interest in “skilled work”, that is, managerial, professional or technical and skilled trades: Citizenship and Immigration Canada, “Canadian Experience Class: Who Can Apply”, online: http://www.cic.gc.ca/english/immigrate/cec/apply-who.asp.
[27] See the conditions of the PNP at Ontario’s website, “Opportunities Ontario”, online: http://www.ontarioimmigration.ca/en/pnp/index.htm.
[28] Canada-Ontario-Toronto Memorandum of Understanding on Immigration and Settlement (original signed September 29, 2006), online: http://www.cic.gc.ca/english/department/laws-policy/agreements/ontario/can-ont-toronto-mou.asp.
[29] The Convention on the Protection of the Rights of All Migrant Workers was adopted by General Assembly resolution 45/158 of 18 December 1990, online: http://www2.ohchr.org/english/law/cmw.htm. For a list of signatories, see United Nations Treaty Collection, online: http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-13&chapter=4&lang=en. See a list of conventions at International Labour Organization, online: http://actrav.itcilo.org/actrav-english/telearn/global/ilo/law/lablaw.htm. The fundamental conventions relate to forced labour, freedom of association, discrimination and child labour. Ratifications of the ILO Fundamental Conventions (as of September 29, 2010), online: (http://webfusion.ilo.org/public/db/standards/normes/appl/appl-ratif8conv.cfm?lang=EN. ILO Declaration on Fundamental Principles and Rights at Work (June 1998), online: http://www.ilo.org/declaration/thedeclaration/textdeclaration/lang–en/index.htm.
[30] See the following provisions of the ESA, 2000: 54 (termination); 64(1) (severance pay); and Workplace Safety and Insurance Act, 1997, S.O. 1997, c.16, s.41(1).
[31] ESA, 2000, Part XVIII.1.
[32] On the exclusion of domestic workers from collective bargaining, see section 3(a) of the LRA, 1995. The Ministry of Labour has published a “factsheet” about the rights of homeworkers: Ontario Ministry of Labour, “Homeworkers”, online: http://www.labour.gov.on.ca/english/es/pubs/factsheets/fs_homeworkers.php.
[33] Employment Protection for Foreign Nationals Act (Live-in Caregivers and Others), 2009, S.O. 2009, c.32. The Act has not yet been extended to other workers under federal migrant workers programs.
[34] On the OHSA and farm workers, see Ontario Regulation 414/05, ss.3 and 4. For a critique of the extension of the OHSA to agricultural workers, see Eric Tucker, “Will the Vicious Circle of Precariousness Be Unbroken? The Exclusion of Ontario Farm Workers from the Occupational Health and Safety Act” in Vosko, ed., note 1, 256.
[35] For sources on these developments, see Ministry of Labour, “Making Construction Sites Safer”, online: http://news.ontario.ca/mol/en/2010/05/making-construction-sites-safer.html; “Christmas Eve scaffolding collapse leads to charges,” CBCnews (August 14, 2010), online: http://www.cbc.ca/canada/toronto/story/2010/08/14/toronto-scaffold-accident-charges.html; Anthony Reinhart, “Three charged in deaths of migrant workers who fell 13 storeys from scaffold”, The Globe and Mail (October 14, 2010) A12 (This is the first prosecution in Ontario under the amendments to the Criminal Code enacted as Bill 45 six years ago.); Ari Altstedter, “Ontario acts to prevent worker deaths”, The Globe and Mail (December 17, 2010) A16; Ontario, “New Chief Prevention Officer to Oversee Workplace Safety” (December 16, 2010), online: http://news.ontario.ca/mol/en/2010/12/new-chief-prevention-officer-to-oversee-workplace-safety.html.
[36] On the impact on health, see the following: Wayne Lewchuk, Alice De Wolff, Andy King and Michael Polanyi, “The Hidden Costs of Precarious Employment: Health and the Employment Relationship” in Vosko, ed., note 1, 141. For a brief statement of some of the health concerns associated with migrant workers, see Kerry Preibisch, “The Second Generation of Permanently Temporary Workers,” Presentation at Permanently Temporary: Temporary Foreign Workers and Canada’s Changing Attitude to Citizenship and Immigration Community Research Symposium February 4, 2010) 14, online: http://ceris.metropolis.net/research policy/CommunityResearchSymposium2010/PermanentlyTemporary.pdf-(“TFW Symposium”). For the impact on hotel housekeepers, primarily immigrant women of colour, see Serena Liladrie, “Do Not Disturb/Please Clean the Room: The Invisible Work and Real Pain of Hotel Housekeepers in the GTA”, Policy Matters (January 2010), online: http://ceris.metropolis.net/frameset_e.html. Institute for Work & Health, “New Canadian immigrants face less than ideal working conditions”(July 2008), online: http://www.iwh.on.ca/media/2008-jul-09; Janet McLaughlin, “Challenges and Considerations: Providing Accessible Health Care for TFW”, TFW Symposium 32; Wayne Lewchuk, Alice de Wolff, Andy King and Michael Polanyi, “From Job Strain to Employment Strain: Health Effects of Precarious Employment” (2003) 3 Just Labour 23.
[37] See, for example, the persons eligible to take English or French language classes under the services sponsored by the Ontario government: Ontario Ministry of Citizenship and Immigration, “Learn English or French”, online: http://www.citizenship.gov.on.ca/english/keyinitiatives/language.shtml.
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