Bernardez v. Canada (Minister of Citizenship and Immigration), (1995) 101 F.T.R. 203 (TD)

• Court: Federal Court (Canada)
• Case Date: February 17, 1995
• Jurisdiction: Canada (Federal)
• Citations: (1995), 101 F.T.R. 203 (TD)

Bernardez v. Can. (M.C.I.) (1995), 101 F.T.R. 203 (TD)

MLB headnote and full text

Fatima Maria Bernardez (applicant) v. Minister of Citizenship and Immigration (respondent)

(IMM-357-94)

Indexed As: Bernardez v. Canada (Minister of Citizenship and Immigration)

Federal Court of Canada

Trial Division

Jerome, A.C.J.

September 28, 1995.

Summary:

An adjudicator found that a live-in caregiver engaged in unauthorized employment contrary to ss. 27(2)(b) and 27(2)(e) of the Immigration Act and issued a departure order. The caregiver applied to set aside the adjudicator's decision and the departure order.

The Federal Court of Canada, Trial Division, allowed the application and set aside the departure order.

Aliens - Topic 1215

Admission - Immigrants - Foreign domestics - An adjudicator found that a live-in caregiver engaged in unauthorized employment contrary to ss. 27(2)(b) and 27(2)(e) of the Immigration Act and issued a departure order - Besides general household duties, the employer required the caregiver to clean the family store - The caregiver received no extra remuneration - She felt that she did not have the right to refuse the employer's directions - The Federal Court of Canada, Trial Division, stated that the question of employment "depends on the nature of the work and the circumstances in which it is performed" - The court quashed the departure order, stating that the adjudicator failed to consider these issues in applying the definition of employment - See paragraphs 8 to 11.

Aliens - Topic 1215

Admission - Immigrants - Foreign domestics - An adjudicator found that a live-in caregiver engaged in unauthorized employment contrary to ss. 27(2)(b) and 27(2)(e) of the Immigration Act and issued a departure order - The Federal Court of Canada, Trial Division, stated that the Immigration Department had a duty to give a caregiver found to be carrying on unauthorized employment an opportunity to correct the impugned behaviour prior to being expelled - See paragraph 12.

Aliens - Topic 1215

Admission - Immigrants - Foreign domestics - The Federal Court of Canada, Trial Division, stated that "the purpose of the Live-in Caregiver Program is to facilitate the attainment of permanent resident status for foreign domestic workers and therefore it is incumbent on the Immigration Department to adopt a flexible and constructive approach in its dealings with the Program's participants. Failure to do so undermines the purpose of the Program." - See paragraph 14.

Cases Noticed:

Georgas v. Minister of Employment and Immigration, [1979] 1 F.C. 349; 23 N.R. 437 (F.C.A.), refd to. [para. 9].

R. v. Sarraf (1986), 73 N.S.R.(2d) 326; 176 A.P.R. 326 (Co. Ct.), refd to. [para. 10].

Muliadi v. Minister of Employment and Immigration (1986), 66 N.R. 8; 18 Admin. L.R. 243 (F.C.A.), refd to. [para. 12].

Turingan v. Minister of Employment and Immigration (1993), 72 F.T.R. 316 (T.D.), refd to. [para. 14].

Statutes Noticed:

Immigration Act, R.S.C. 1985, c. I-2, sect. 2 [para. 9]; sect. 27(2)(b), sect. 27(2)(e) [para. 3]; sect. 32(6) [para. 6].

Counsel:

S. Chotalia, for the applicant;

Brad Hardstaff, for the respondent.

Solicitors of Record:

Pundit & Chotalia, Edmonton, Alberta, for the applicant;

George Thomson, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This application was heard at Edmonton, Alberta, on February 17, 1995, by Jerome, A.C.J., of the Federal Court of Canada, Trial Division, who delivered the following judgment on September 28, 1995, in Ottawa, Ontario.