First caregiver court victory hailed: Caregivers fighting back in court

by Dyan Ruiz, The Philippine Reporter

Posted at Dec 02 2009 03:37 PM | Updated as of Dec 02 2009 11:37 PM

CANADA - Filipina caregiver, Marivic Perlas Rivera, has won her civil suit against the recruitment agency that failed to provide her with legitimate employment according to an article in The Toronto Star featured on the front page on Nov. 25, 2009.

The caregiver was awarded the maximum amount allowed in Small Claims Court when the judge ordered Winston James and his wife, Lory Felipe of Winlorfely Caregiver Providers to pay damages. Rivera is due to receive $10,000 and another $300 in costs, plus interest.

The lawsuit may mark a turning point in the fight against unscrupulous recruiters who bring foreign caregivers to Canada for jobs that do not exist. Many of the people being taken advantage of under lax legislation regulating recruiter activities are Filipino nationals. The caregiver’s triumphant civil suit is said to be the first of its kind in Ontario against a nanny recruitment agency says lawyer Maria Capulong in an interview with The Philippine Reporter.

This is an opinion supported by Marna Martin in the Star article. Martin is part of the Canadian Coalition for In-Home Care, the non-profit organization who helped Rivera sue the recruiters. In the Star article, Rivera’s case was believed to be “a landmark suit.” However, because the case was in Small Claims Court and such decisions are often not reported, it is difficult to say for sure.

When asked if Rivera’s win set a precedent which can be used for similar cases where caregivers are alleging recruiter exploitation, such as Capulong’s cases, she responded that because it has been heard at a Small Claims level, Rivera’s win is not binding law. Therefore, it cannot be considered as a legal precedent.

However, Capulong insisted, “It can be used as a persuasive argument in showing the direction that the courts are taking, how the courts assess the injuries of caregivers at the hands of unscrupulous agencies.” Capulong continued, “I think it will definitely be a precedent for other caregivers who want to stand up for their own rights.” Martin is quoted in the Star saying “This case is significant because most Filipina ladies in this situation are afraid to come forward.”

Capulong currently represents Filipina caregivers, Debie Mendez Dela Fuente, Mary Grace Gallego and Joelina Maluto, who like Rivera, have stood up and voiced their stories of recruiter abuse. These women have recently filed claims in the Ontario Superior Court of Justice against the Rakela Care Agency and the corporation’s owners, Rakela and Zeev Spivak, which include breach of contract and false imprisonment. The cases are now in a waiting period common in Superior Court.

The recruiters involved in Capulong’s cases have filed counter claims for amounts they contend are still owed to them by the caregivers for placement fees. These amounts would be paid on top of the up to $1,400 the women claim they have already given to the Rakela Care Agency. Like Rivera, these caregivers claim they were never set up with legitimate employers in the Live-In Caregiver Program (LCP) as promised by the recruiters in exchange for the money paid to them.

Unfortunately, the stories of exploited caregivers are common amongst those who arrive in Canada hoping to make steps towards a better life. The Star article refers to Rivera’s claims that after she was approached in Hong Kong by James’ sister-in-law Fely Felipe, she paid $2,800 to Winlorfely in exchange for finding an employer needed for a work permit for the LCP.

According to the Star, Rivera claimed that upon her arrival to Canada, James informed her she could not work for the previously indicated employer. She was housed by James at his Scarborough home, then by a Thornhill recruiter in “one room in the basement with eight other nannies in the same situation as me.” For six months, they could not provide her with legitimate employment in the LCP and a valid work permit.

Then Rivera, who had children and a husband in the Philippines dependant on her wages, went to the Canadian Coalition for In-Home Care. They helped her file the suit against the agency, which resulted in the decision in favor of Rivera issued by Judge Julie Hannaford.

In Small Claims Court, issuing a fine is all a judge can do. According to Capulong, the issuance of the maximum fine does not put “a price tag value on the claim or the injury of the plaintiff,” but “it is a way of outlining the court’s distaste for the actions of the defendants,” which in this case were unscrupulous recruiters.

At least in the Province of Ontario at the provincial level, Capulong sees the Rivera case as showing that “We are definitely now moving in a positive direction. For a very long time there has been lobbying and requests for changes to the LCP to ensure protections for caregivers. So now we are actually seeing that the government is serious about protecting caregivers,” which can be discerned from the soon to be passed Bill 210 introduced by Ontario’s Minister of Labour Peter Fonseca on Oct. 21, 2009. She continued, “We are seeing this trickle down to our court system as well… The courts are now recognizing and affirming the rights of caregivers.”

When asked to comment on the recently announced, proposed, federal-level changes to the Temporary Foreign Workers Program, which includes workers in the LCP, Capulong stated, “I really do not see them as changes at all. I think they will have a negative effect. This is really just a continuation of punishing or at least not recognizing the value that temporary foreign workers are bringing to our country.”

According to the Star, Rivera is now working as a caregiver for a family in Hamilton.