Temporary foreign workers motion ruled a ‘violation’ of Ontario human rights code

An attempt by a Whitby councillor to exclude companies that employ temporary foreign workers from receiving municipal contracts was declared out of order by council, dismissed as an effort to “generate outrage, headlines, and social media engagement” by a council watcher and, most importantly, ruled a violation of the Ontario Human Rights code after the town asked for a legal opinion.

Councillor Chris Leahy had asked staff on Feb. 20 to report on the potential to amend the town’s purchasing bylaw to prohibit awarding supply and service contracts to companies that are actively participating in the federal Temporary Foreign Worker Program.

The motion was ruled out of order, prompting council to ask for a legal opinion.

On Monday, the same day a Leahy motion calling on the federal government to remove Prince Andrew from the line of succession to the British throne was also ruled out of order, council voted to waive the customary ban on legal matters and release the legal opinion (and the cost) presented by Jason Reynar of Toronto law firm Lerners LLP.

Reynar said in his submission the motion would be unconstitutional as the Ontario Human Rights Code prevents discrimination in contracts based on citizenship.

“Discriminatory barriers may arise due to policies that seem neutral – like reducing unemployment – but have unintended negative impacts on people identified by the prohibited grounds of discrimination, such as place of origin or citizenship,” Reynar said in his submission.

Prohibiting businesses from bidding on town contract opportunities based on the non-citizenship/permanent residence status of the workers they employ would be ‘discriminatory’ against temporary foreign workers “who already face significant challenges,” he added.

As well, the Charter protects temporary foreign workers from discrimination by municipal government.

Chris Leahy

The Discriminatory Business Practices Act prohibits discrimination, with Reynar noting the purpose of the act is to prevent discrimination on the ground of nationality, place of origin, geographical location, among other grounds, of persons employed in or engaging in business. “The town’s procurement policy acknowledges this statute under the heading, ‘No Local Preference.’”

The motion is also antithetical to the purposes of the town’s Procurement Policy, which:

• Encourages open, fair, and transparent competitive procurement processes that affords equitable access to all qualified suppliers
• Provides objective, fair and equitable treatment of all suppliers and bidders
• Adheres to the highest standards of ethical conduct and protects the integrity of the Town and the public
• Promotes responsible management of the public funds, town finances and assets
• Strives to achieve best value when procuring goods and services; encouraging competition, consideration for sustainability, and highest quality at cost effective prices
• Provides for reciprocal non-discrimination and geographic neutrality with respect to trading partners in accordance with trade agreement obligations
• Is consistent and compliant with all applicable legislation, including the Accessibility for Ontarians with Disabilities Act, 2005, the Municipal Freedom of Information and Protection of Privacy Act and the Ontario Human Rights Code.

“Each of those principles would potentially be violated by pursuing the direction proposed in the motion,” Reynar said, adding that excluding businesses that actively participate in the program reduces competition, “potentially resulting in paying more for goods and services than otherwise required. That would not be in keeping with prudent financial management.”

The doctrine of ‘paramountcy’ would also prevent a municipal by-law from interfering with the federal purpose and authority regarding immigration, he said.

“Additionally, we observe that there are likely other ways with less deleterious effects to achieve the desired outcome of supporting economic development and reducing unemployment.”

Reynar also said there would also likely be risk management issues with administering such an approach. “How would the town audit bidders who declare that they are not actively participating in the TFW program and monitor that status throughout the life of the contract? What would the penalty be for a violation of this requirement? How would potential privacy violations of TFWs be managed? How many TFW constitute ‘active participation?’ Since TFWs are permitted only where they would not negatively impact the labour market, what happens if no companies can bid because they cannot find non-TFW employees?”

Whitby resident John Christopher wondered about Leahy’s motive in presenting the motion, hinting at more political theatre than substance.

“If these motions can’t legally be acted on by a municipal council, why bring them forward in the first place? The answer is fairly obvious,” Christopher said on the Whitby Community News Facebook page. “These are issues designed to trigger strong emotional reactions. Jeffrey Epstein, foreign workers and royal family controversies generate outrage, headlines, and social media engagement.”

“So when this motion reached council, it wasn’t debated, voted on or even read, because it has absolutely nothing to do with municipal government,” he said. “They allow a politician to look like they’re ‘taking a stand’ without actually having to do the difficult work of governing.”

Whitby councillors Chris Leahy and Steve Yamada

Whitby Mayor Elizabeth Roy said making “responsible decisions” at council meetings requires “carefully considering the appropriateness and legality of motions before bringing them forward.”

“Unfortunately, we have seen several recent situations where motions have clearly fallen outside the town’s jurisdiction or raised significant legal and ethical concerns. Given the potential implications of this motion, town staff felt it was appropriate to seek external legal advice to protect the municipality — and that comes at a cost to taxpayers. I’m urging members of council to ensure the motions they bring forward are thoughtful, appropriate, and within the Town of Whitby’s authority, and to consult with staff if there is any uncertainty. Our focus should remain on the issues we are responsible for and decisions that make a meaningful difference in the lives of Whitby residents.”

Leahy, along with fellow councillor and council ally Steve Yamada, have filed a claim against the town, the integrity commissioner and Mayor Elizabeth Roy and councillors Rhonda Mulcahy and Niki Lundquist for “anti-Asian bias” for council’s treatment of Yamada during his short-lived tenure s Deputy Mayor in 2024.

The cost range for Reynar’s legal opinion on Leahy’s motion is between $6,000 and $10,000, while legal fees on the nearly two-year dispute between Leahy, Yamada and the town is already at an estimated $100,000.