Temporary foreign worker withdraws B.C. human rights claim after decision overturned

A B.C. Human Rights Tribunal hearing room is shown in this file image from March 29, 2010. (THE CANADIAN PRESS/Darryl Dyck)

Update: The decision of the B.C. Human Rights Tribunal in this case was overturned on Sept. 5, 2024. Counsel for the Shimmuras, the respondents, never provided closing submissions and so the tribunal found the original decision "rested upon a serious unfairness." The case was sent back to the tribunal for reconsideration but the complainant, Marites Bayongan, withdrew her claim. There will not be another hearing or decision on the matter. Lawyers for the Shimmuras informed CTV News of these developments on Oct. 1, 2024.

Original story follows:  

A temporary foreign worker from the Philippines who was fired from her job as a caregiver after a cancer diagnosis has been awarded over $45,000 by the BC Human Rights Tribunal.

In a ruling handed down last week, the tribunal found that Marites Bayongan was discriminated against on the grounds of disability. Her former employers were ordered to compensate her $45,780 for lost wages, expenses, and injury to her dignity, feelings, and self respect.

The tribunal decision notes that employers, Yoshiko and Yoshiki Shimmura were "supportive and empathetic" in their dealings with the woman whom they had hired to care for their children but that the termination of her employment violated the province's human rights code.

"The Shimmuras’ discriminatory conduct was not egregious," tribunal member Amber Prince wrote.

"Nonetheless, the Shimmuras’ conduct resulted in significant hardship to Ms. Bayongan, as a temporary foreign worker struggling with cancer."

Prior to coming to Canada, the tribunal heard, Bayongan was a stay-at-home mom who cared for her five children. However, when her husband died she was left without the means to support her family. Canada's Temporary Foreign Worker Program allowed her to leave her country to work as a caregiver, with the stipulation that she work only as a nanny for the Shimmura's and their three children.

Bayongan began working for the family in 2018 and did so until her diagnosis with Stage 4 non-Hodgins lymphoma.

"Both Ms. Bayongan and Ms. Shimmura gave evidence that they had a good working relationship until Ms. Bayongan became ill. Ms. Bayongan described the Shimmuras as 'good people.' She enjoyed working for the Shimmuras and trusted them," the tribiunal decision said.

"Ms. Shimmura described Ms. Bayongan as a nice person, and 'very nice' as a nanny."

Neither party disputed that Bayongan's illness resulted in her taking a leave from work in November of 2020 in order to seek treatment, which she did, undergoing chemotherapy while collecting Employment Insurance.

In April of 2021, Bayongan's employers said her illness rendered her unable to work for them continuously and that they were advised by a lawyer that they were therefore unable to extend her employer-specific permit.

The tribunal decision explained that the decision not to renew the permit meant that Bayongan was effectively fired from her job, unable to work in Canada, and ineligible for coverage under B.C.'s Medical Services Plan.

"At a time when Ms. Bayongan was battling cancer, she lost her employment, status in Canada, and health benefits. Instead of focussing on recovery, and earning an income again to support her family, she had to divert her time and energy to find a new employer, attempt to restore her work permit, and go into debt to receive critical health care," Prince wrote in her decision.

DAMAGES AWARDED

By May of 2021, the tribunal said Bayongan's medical records showed she was cancer-free and well enough to resume work. By December of that year, she had found another job and secured another permit. The Shimmura's were ordered to compensate her for lost wages during the 32-week period during which she was legally unable to work, in the amount of $19,360.

As compensation for injury to her dignity, Prince awarded Bayongan $25,000.

"The specific effect of the discrimination on her was harsh," Prince noted after outlining a number of way that workers like Bayongan are "in an especially vulnerable position" in Canada.

The linking of someone's immigration status with a work permit that is tied to a single employer means that the loss of a job can bring with it a "serious threat of deportation" in addition to a loss of income and employment.

Further, Prince said caregivers who come to Canada though this particular program tend to be poor, racialized women who are paid low wages and are supporting families in their country of origin – all of which puts them at heightened risk of abuse and exploitation.

"I accept without reservation Ms. Bayongan’s evidence that as a result of the discrimination she felt depressed, abandoned, and distressed about losing her immigration status. She worried about how she was going to pay her own rent and support her family," Prince wrote.

The remaining $1,420 Bayongan was awarded was to compensate her for the cost of renewing her work permit and the medical expenses she incurred when she did not have coverage.