‘Atrocious’: Moose Jaw employer fined $5,000 for charging foreign worker $12,000

A Moose Jaw employer has been fined $5,000 and ordered to pay $12,000 in restitution after pleading guilty to charging a foreign worker a fee or expense to maintain his employment.

The charges are the first laid in Saskatchewan under the Foreign Worker Recruitment and Immigration Services Act.

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Dyan Jeny Enterprises, which operates as Guac Mexi Grill in Moose Jaw, pleaded guilty in Moose Jaw Provincial Court on Tuesday to charging Parth Patel an employment-related fee while he was a foreign worker.

The corporation was fined $5,000 and ordered to pay a $2,000 victim fine surcharge, with six months to pay. It was also ordered to pay $12,000 in restitution, with 12 months to pay.

Charges against company directors Kartikkumar Patel and Rutvik Patel were withdrawn, as were two other charges against the corporation.

Worker was told to pay $12,000

According to an agreed statement of facts presented in court, Parth worked as a food supervisor at Guac Mexi Grill from Jan. 17, 2022, to Feb. 15, 2024.

The business changed ownership in August 2023. The new employer then demanded that Parth provide monetary compensation to maintain his employment.

Crown prosecutor Jocelyn LeBlanc told the court the employer initially indicated that Parth’s position could be sold for $25,000.

Parth was close to obtaining permanent residency in Canada but still required support from his employer, LeBlanc said.

He negotiated the amount down to $12,000.

“The employer made it known to Parth Patel that failure to pay $12,000 would result in his employment being terminated and Immigration, Refugees and Citizenship Canada being notified that his nomination would no longer be valid and Parth Patel would no longer be eligible for permanent residency in Canada,” LeBlanc said.

Parth made three $4,000 payments to Guac Mexi Grill, on or around Sept. 14 or 15, Sept. 29 and Oct. 23, 2023.

Employment arrangement continued after ownership change

LeBlanc told the court Parth was never present at the workplace after the new owners took over.

The new owners declined to retain Parth as an employee but offered to support his permanent residency application by creating the appearance that he remained employed.

That arrangement involved issuing pay stubs and making payments to Parth, who was then required to reimburse the employer after each pay period.

Parth filed a complaint against Dyan Jeny Enterprises on March 18, 2024, alleging unlawful employer practices.

The corporation did not dispute the facts presented in court.

The charges alleging the company took action against, or threatened to take action against, the complainant for participating in a government or law enforcement investigation or making a complaint were withdrawn.

A charge alleging the company took unfair advantage of a foreign worker’s trust or exploited their fear, lack of experience or lack of knowledge was also withdrawn.

Defence calls case unique

Defence lawyer Bhavan Jaggi described the case as unique in Saskatchewan, noting it involved the first charges laid under the Foreign Worker Recruitment and Immigration Services Act.

Jaggi also told the court there was an “illusion” that Parth’s employment status would be jeopardized if he did not pay the money.

He argued that immigration is a privilege governed by federal and provincial rules and suggested there should be strict rules for both employers and employees who take advantage of the immigration system.

Jaggi said some foreign workers obtain employment as part of their pathway toward permanent residency and later leave those positions.

“This can be an example that Saskatchewan needs stronger laws and regulations, but there are certain aspects where both the employer and employee take benefit from the requirements and laws,” Jaggi said.

He said Dyan Jeny Enterprises remains active and operating, but the corporation has decided not to employ foreign workers in the future.

He added that the company wants to serve as an example to other corporations and educate them about avoiding wrongdoing involving employees.

Judge calls conduct “atrocious”

Judge Steven Schiefner said he had concerns about the proposed $5,000 fine, questioning whether it adequately reflected the sentencing principles of denunciation and deterrence.

He said the legislation is intended to protect a vulnerable class of workers from exploitation.

“I find the conduct of Dyan Jeny Enterprises and its principals to be atrocious,” Schiefner said.

Schiefner said the company took advantage of a vulnerable worker and extracted a prohibited fee.

He noted that obtaining fees from foreign workers may have appeared to be common practice, but provincial legislation was enacted specifically to prohibit the practice.

The judge said the conduct appeared to involve an employer being misled by what appeared to be common practice and ultimately came into conflict with the law.

Old legislation limited potential penalty

The company was prosecuted under the former Foreign Worker Recruitment and Immigration Services Act. The legislation has since been replaced with the current Immigration Services Act, which came into effect July 1, 2024.

LeBlanc noted the maximum fine under the former legislation was one-twelfth of the maximum penalties available under the current legislation.

The Crown and defence made a joint submission recommending the $5,000 fine and $12,000 restitution order.

Schiefner acknowledged the fine was toward the lower end of the scale and said it may not fully articulate the principles of denunciation and deterrence.

However, he said the sentence did not offend the sentencing principles established by the Supreme Court of Canada.

He also considered the company’s guilty plea and the lack of previous charges under the legislation.

The guilty plea also avoided a lengthy trial and prevented the complainant from having to testify, which the judge said could have resulted in further re-victimization.