Surrey Trucking Firm Loses Appeal

Written by: Keith Fraser (kfraser@postmedia.com)

A Surrey trucking company has lost its appeal of a court order that it pay more than $350,000 in restitution to 29 temporary foreign workers it hired as long-haul truckers. Last year, Harlens Trucking Ltd. pleaded guilty to two immigration offences related to the hiring of the workers, many of whom were from India.

Noting that the company had misrepresented to the Canadian government that it would pay the workers $23.50 an hour but never had the intention to do so, the provincial court imposed a suspended sentence with two years probation. A term of the probation was to pay restitution to the workers, who were hired from 2011 to 2014. The company also received a $10,000 fine. The sentencing judge heard that although the workers were told they’d be paid $23.50 an hour, the company always intended to pay them on a 40 cents per mile rate.

The workers were told that the contracts they had already signed with an hourly rate were for immigration purposes only and they were later instructed to sign new contracts on a cents per mile basis. At sentencing, the Crown presented an accounting report that used the drivers’ log books with a view to figuring out the hours worked by each of the workers, with the report concluding that the total loss to them was $352,001.83.

The judge concluded that the workers were unaware they would not be paid the hourly rate and were a vulnerable class of employees in an unequal bargaining position with the company. Under the federal temporary workers program, to obtain work permits for foreign workers, an employer must prove it has attempted to recruit Canadians and permanent residents for any positions. Applicants that offer to pay less than the prevailing median wage in Canada are denied.

On appeal, the company argued that the restitution order was inappropriate because the enforceability of the offers of employment should have been resolved in a civil proceedings and claimed that the workers knew from the beginning they’d be paid on a per cent mile basis so there had been no loss. The company claimed that the offer to pay an hourly rate was a fiction since no one in the trucking industry pays by the hour and even so, the amount paid was the industry standard wage, the same wage paid their drivers who are permanent residents or Canadian citizens.

The Crown argued the judge was entitled to deference and had carefully considered the evidence in finding that the law obliged the company to pay the wages and benefits set out in the employment offers and that the workers had suffered a loss. In his ruling on the appeal, B.C. Supreme Court Justice Neill Brown found that the sentencing judge had ample evidence on which to find that Harlens had misrepresented the government as to what it would pay the workers.

“I understand the appellant’s frustration with the government’s insistence on hourly rates when practically the whole industry pays by the mile,” said Brown.

“Nonetheless, had the amount paid per mile equated to the $23.50 hourly attested to in the documentation, the appellant’s moral culpability would have been less and there would have been no basis for an order of restitution.” Brown noted that the amount of the restitution was balanced and not excessive or unduly punitive and dismissed the appeal.