Executive Summary: Key Legal and Evidentiary Issues

• Scope and wording of the authorized class are refined, particularly for foreign nationals working without a permit for foreign entities or foreign representatives, to clarify who is included and excluded.
• Form, content, and trilingual nature (English, French, Spanish) of full and short-form notices and press releases are scrutinized and approved as adequately informing class members of their rights.
• Adequacy of the publication protocol is assessed, including newspapers, online platforms, and social media (Facebook and Instagram), to ensure reasonable outreach to a highly mobile, often non-resident migrant worker class.
• Length and triggering of the 60-day opt-out period, tied to a defined “Publication Date,” are fixed to balance procedural fairness and practical constraints of reaching temporary foreign workers worldwide.
• Responsibility for the costs of class notices is confirmed as falling on the federal defendant, in line with the earlier authorization judgment, while otherwise ordering the matter “without costs.”
• Underlying constitutional questions about “employer-tying measures” in the Immigration and Refugee Protection Regulations and their compatibility with sections 7 and 15(1) of the Charter are framed for a future merits trial, though not decided at this stage.

Facts and procedural background
The proceeding arises from a class action brought in the Superior Court of Québec (Class Actions Chamber) by the Association for the Rights of Household and Farm Workers (ARHWFW) against the Attorney General of Canada. The representative action challenges the constitutionality of what are described as “employer-tying measures” imposed on temporary foreign workers, including employer-specific or “closed” work permits issued under the Immigration and Refugee Protection Regulations (IRPR), SOR/2002-227. These measures limit a foreign national’s authorization to work in Canada to a specific employer, group of employers, or specific workplace location(s). They also extend to certain categories of foreign nationals authorized to work without a permit because they are employed by foreign entities on a short-term basis or in a personal capacity by temporary residents, including foreign representatives.

On 13 September 2024, Justice Silvana Conte authorized the class action and defined the initial class description. The class captures foreign nationals who worked in Canada on or after 17 April 1982 without being Canadian citizens or permanent residents and who either: (i) held employer-specific work permits; or (ii) were allowed to work without a work permit due to short-term employment by a foreign entity or personal employment by a temporary resident or foreign representative. The authorization decision also ordered that the costs of class notices be borne by the defendant Attorney General.

Following authorization, the representative plaintiff and the Attorney General jointly prepared the notices to class members in three languages (English, French, and Spanish), in both full and short forms, and drafted press releases and a publication protocol. They then brought a joint application before Justice Pierre Nollet seeking approval of these notices and the publication protocol, and a refinement of the class description to better capture and exclude certain sub-groups of foreign workers, especially those linked to diplomatic and international organizations. The matter was decided on the written record rather than an oral hearing.

Nature of the class and target population
The underlying class action addresses a broad and diverse population of temporary foreign workers and other non-citizen, non-permanent-resident workers. It includes those recruited under programs such as the Temporary Foreign Workers Program (TFWP), the Seasonal Agricultural Worker Program (SAWP), the Non-Immigrant Employment Authorization Program (NIEAP), and the International Mobility Program (IMP), where work permits condition employment to specific employers or workplaces.

The class also deliberately reaches categories of domestic workers, personal assistants, and caregivers, including nannies and au pair workers, who enter Canada with or to join their employers for short-term periods. This includes accredited private domestic workers personally employed by certain foreign representatives, such as ambassadors, high commissioners, heads of international organizations, and special representatives, provided they are employed in a personal rather than institutional capacity.

At the same time, the class excludes individuals employed by foreign states or foreign entities to work in embassies, high commissions, consulates, permanent delegations to United Nations agencies, or special representative offices, and also excludes those employed directly by the United Nations, its agencies, or other international organizations of which Canada is a member. The refined class wording is intended to ensure that the action targets those whose work authorizations tied them personally to employers in ways alleged to be harmful and constitutionally suspect, without inadvertently drawing in employees of diplomatic missions and international organizations whose legal and immigration status is governed by other international frameworks.

Constitutional and regulatory framework in issue
Although Justice Nollet’s judgment is procedural, the annexed full-length notice outlines the substantive issues that will be litigated at trial. The representative plaintiff challenges specific provisions of the IRPR—identified in the notice as sections 185(b), 186(a), 186(b), 187(1), 187(3), 200(1)(c)(ii.1), 200(1)(c)(iii), 200(5) and 203—as unconstitutional. These clauses set out conditions for work permits and for work authorized without a permit, including situations where employment is tied to a particular employer or location.

The plaintiff alleges that these “employer-tying measures” infringe section 7 of the Canadian Charter of Rights and Freedoms, which protects life, liberty, and security of the person, and section 15(1), which guarantees equality before and under the law and equal protection and benefit of the law without discrimination based on race, national or ethnic origin, or colour. The central theory is that tying workers to specific employers or short-term foreign employers creates vulnerabilities, limits mobility, and facilitates exploitation in a manner contrary to fundamental justice and equality guarantees.

The plaintiff further alleges that the federal government has long been aware of the harmful impacts of such measures on temporary foreign workers but nonetheless continued to apply them. The relief sought includes declarations that the impugned provisions are of no force and effect to the extent that they authorize direct or indirect employer-tying measures, an order for collective recovery of Charter damages, and individual liquidation or distribution of compensation to class members. The Attorney General contests both the characterization of the regulatory framework as “employer-tying measures” and the merits of the constitutional challenge. These substantive questions, however, will be decided only at trial in Montréal.

The joint application on notices and class modification
The immediate judgment concerns a Joint Application for the Approval of Notices to the Class Members and a Publication Protocol and for the Modification of the Class. Both parties agreed on the wording and structure of three main forms of communication: (1) full-length notices in English, French, and Spanish; (2) short-form notices in those three languages; and (3) press releases, again in three languages. Annexes A, B, and C of the judgment reproduce these instruments in detail.

The notices explain who is a member of the class, describe the nature of the constitutional challenge, set out the key common questions to be determined at trial, and clarify the rights of class members, including the right to opt out and to seek to intervene. They also emphasize that class members do not need to take steps to be included and will generally not bear costs, and provide the contact details of class counsel and the link to the public class actions registry.

The parties also jointly submitted a publication protocol that details how the notices and press releases will be disseminated, including through selected newspapers, an online campaign, and social media platforms such as Facebook and Instagram. The protocol specifies a “Publication Date,” defined as the date on which short-form notices appear in most selected newspapers, the social media campaign is launched, and the notices are posted on several other designated platforms. The parties proposed that class members be given 60 days from that Publication Date to opt out of the class action.

Finally, the parties asked the Court to approve a refined class definition. The modified wording keeps the same temporal starting point—work in Canada on or after 17 April 1982—but elaborates in more detail the inclusion of accredited private domestic workers employed personally by senior foreign representatives and, conversely, the exclusion of individuals employed institutionally by foreign states, diplomatic missions, or international organizations and the United Nations system. This refinement is meant to bring the authorized class description into tighter alignment with the factual context and to avoid overbreadth.

The court’s analysis of statutory and procedural requirements
Justice Nollet considered the proposed notices and publication protocol in light of article 579 of the Québec Code of Civil Procedure, which governs the content and dissemination of notices in class actions. The central question was whether the information provided would adequately apprise potential class members—many of whom may reside outside Canada, no longer work in Canada, or have precarious immigration histories—of the nature of the case, the definition of the class, their rights to participate or opt out, and the consequences of inaction.

The Court was satisfied that the notices, in three languages and in both detailed and short forms, are comprehensive yet understandable, and that they reflect the authorized common issues and relief. The publication protocol’s mix of print, online, and social media dissemination was accepted as a reasonable and proportionate way to reach a dispersed and often transient migrant worker population. The judge accepted the jointly proposed 60-day opt-out period, running from the defined Publication Date, as an appropriate balance between providing sufficient time for class members to act and maintaining procedural efficiency.

On the class modification, the Court agreed that clarification of subparagraph (b)(ii) was warranted. By explicitly listing accredited domestic workers of certain foreign representatives as included, while excluding those employed by foreign states or international organizations in official institutional settings, the revised wording removes ambiguity and better delineates the group whose work authorizations are said to raise the alleged constitutional concerns. The modification does not change the underlying theory of the case but sharpens its application.

Outcome and practical implications
In its dispositive orders, the Superior Court approves, in substance, the form and content of the full-length notices, short-form notices, and press releases in English, French, and Spanish, as reproduced in the annexes. It orders the parties to publish these notices in accordance with the agreed publication protocol, to select a Publication Date within 45 days of the judgment, and to inform the Court once that date is chosen. The Court declares that class members who wish to opt out must follow the procedure set out in the approved notices no later than 60 days after the selected Publication Date.

The class definition is formally modified to the new, more detailed wording, thereby confirming that the action proceeds on behalf of all qualifying foreign nationals working in Canada under employer-specific work permits or comparable employer-tying situations without a permit, subject to the stated inclusions and exclusions. The judgment is rendered without costs, except that the costs of the class notices remain chargeable to the Attorney General of Canada, as already provided in the earlier authorization judgment.

Overall, this decision marks a procedural but important step forward for the representative plaintiff, the Association for the Rights of Household and Farm Workers. Its joint application with the Attorney General of Canada is granted in full, securing court approval of the notice regime, opt-out framework, and refined class definition that will govern the forthcoming constitutional litigation. No damages or monetary awards are assessed at this stage, and the total amount that may ultimately be ordered in favour of the successful party, if any, cannot yet be determined.