Published On Wed Nov 25 2009
A foreign caregiver brought to Canada with a job offer from a "ghost employer" has been awarded $10,000 in damages in what is believed to be the first court victory against a nanny recruiter.
Marivic Perlas Rivera, shown at left, told a small claims court judge she paid $2,800 to Winlorfely Caregiver Providers "to find me a legal employer in Canada as a live-in caregiver."
But upon arrival from Hong Kong last November, Rivera was told her would-be employer, Wayne Smith, whom she has never met or even spoken to, was no longer interested in her services and she was "released on arrival."
Rivera’s victory comes on the heels of a Star investigation over the past year that found numerous cases where nannies paid high fees and came to Canada on the promise of a job, but none materialized.
After six months of looking for a job she could legally do under immigration rules, Rivera, 29, sued recruiters Winston James and his wife, Lory Felipe, who run Winlorfely out of their rented basement apartment in Scarborough.
"If they didn’t have an employer for me they should have told me the truth before I left Hong Kong," she said. "This was a ghost employer."
Judge Julie Hannaford agreed with Rivera, awarding her $10,000, the maximum allowed in small claims court, plus $300 in costs. She also tacked on interest at a rate of 2 per cent.
Calling the Nov. 17 award for damages "unjust," Winston James told the Star he’s thinking of appealing. The judge, he said, didn’t buy his story that Rivera arrived early and her employer was not in a position to hire her at the time.
Rivera was offered other jobs in the GTA but turned them down, he said, acknowledging she did not have the federal work permits required to work legally for those employers.
As for Wayne Smith, he is not a ghost, James said. Smith "lives across from me," he said.
According to Google Maps, the distance between James’ apartment on Sudbury Hall Dr. and the Heatherbank Trail address listed on federal documents as Smith’s place of residence, is 1.6 kilometres.
Reached on the phone, Smith said he did hire Rivera but "the story you are working on is not the way it sounds." He then refused comment.
"And don’t call me back and ask about this," Smith said before hanging up.
A Filipina national who holds a college degree in accounting, Rivera worked as a domestic helper in Hong Kong for 20 months before being recruited by Winston’s sister-in-law, Fely Felipe.
Documents filed with small claims court show Rivera was directed to deposit $1,400 into "PPJ Fire and Safety," a TD Canada Trust account belonging to James. She paid an additional $1,400 before she arrived in Canada on Nov. 10, 2008.
Rivera said she began to suspect something was wrong before she left Hong Kong because she was not able to reach her employer at the phone number provided by the agency.
James picked her up at Pearson International and took her to his Scarborough home, she said.
Anxious to start work to support her husband and two young children in the Philippines, Rivera said James admitted after three days that he had no employer for her.
"I started crying. I don’t know where to go, I don’t know where to start," she said. "I have a lot of bills to pay. My kids depend on the money I send, and my husband was not working."
James took her to a job interview in Brampton that would pay $200 a week, far below the minimum wage and the $9.25 an hour she had been promised in her contract with Smith. She refused to take it because it would have meant working illegally, she said.
James then handed her over to another recruiter in Thornhill who housed her in "one room in the basement with eight other nannies in the same situation as me."
That recruiter lined up interviews for her with a single mother who admitted she could not afford a nanny, and with a family of 13 adults, none of whom had children.
"They all wanted me to work right away. I said I don’t want to work without a permit. I want a legal employer because I did not want to get in trouble with immigration."
A desperate Rivera turned to the Canadian Coalition for In-Home Care, who helped her sue the agency. Rivera is now working in Hamilton for a family with three children.
"This case is significant because most Filipina ladies in this situation are afraid to come forward," said Marna Martin, chair of immigration and labour issues for the non-profit organization. "This is the first case we’re aware of where a nanny has gotten judgment against an agency."
The current Live-In Caregiver program is rife with exploitation, Martin said. "Everybody abuses it, employers, agencies and caregivers, but I truly believe that agencies have been the biggest abusers in the past few years."
A year-long Star investigation highlighted much of that abuse, including nannies paying between $5,000 and $10,000 placement fees for bogus job offers.
In some cases, the Star found nannies were housed in high numbers in basement apartments and flophouses around the GTA, and then forced to work illegally to start paying recruiters their placement fees.
The series has prompted both the federal and provincial governments to take action to rein in rogue operators.
Provincial legislation banning all fees for nannies coming to work in Ontario is expected to pass before Christmas. Federal Immigration Minister Jason Kenney has also promised to crack down on unscrupulous agencies with amendments to the Immigration and Refugee Protection Act.