Slapping down farmers’ objections, court restores public health order protecting ‘exceptionally vulnerable’ migrant workers

A court has restored a public health order limiting the number of quarantining migrant workers in Norfolk County to three per bunkhouse, in what advocates are hailing as a victory for vulnerable workers.

The decision comes after Norfolk County farmer Brett Schuyler challenged the health unit’s edict before the Health Services Appeal and Review Board (HSARB), arguing that it was “arbitrary” and threatened Canada’s food supply. The board agreed, ruling that chief medical officer Shanker Nesathurai did not have “reasonable or probable grounds” to impose the measure.

But the health unit appealed — and on Thursday, divisional court issued a scathing decision that slapped down HSARB’s ruling and reinstated Nesathurai’s public health order.

The decision Thursday said HSARB made “palpable and overriding” errors when it sided with farmers, and “ignored” evidence that migrant workers are a “particularly vulnerable” group whose protection should not be trumped by financial interests.

More than 1,000 migrant workers have tested positive for COVID-19 and three have died, following long-standing concerns over cramped housing and poor working conditions.

“Allowing larger numbers to isolate together exposes (migrant workers) to a level of risk not tolerated for others in the community, thereby increasing the vulnerability of an already vulnerable group,” Thursday’s decision said.

“If the order is necessary, especially in circumstances where the risk is high, then its financial impact is irrelevant.”

Nesathurai’s health order limiting the number of workers per bunkhouse only applies to mandatory self-isolation periods — not to when those workers emerge from quarantine.

Dora Chan, a staff lawyer with Toronto-based IAVGO Community Legal Clinic, which intervened in the hearings, said the case was about “whether migrant farm workers would be afforded even this baseline level of protection in the midst of a global pandemic.”

“Today, the court recognized that migrant farm workers are to be afforded the same level of protection as others in the community.”

Schuyler, who grows grain, apples and cherries in Norfolk County, had originally proposed quarantining 19 to 25 workers together in self-isolation plans submitted to the health unit. In the subsequent legal wrangling, Schuyler argued that migrant workers enjoy quarantining in larger groups — a position the court rejected Thursday, calling it “second-hand evidence from the farmers themselves, all of whom have an economic interest in increasing the number of (migrant workers) who can isolate together.”

In an interview with the Star, Schuyler called Thursday’s ruling “disappointing for the farm community and farm workers.”

“The main thing for moving forward is as a community we’ve got to focus on food security and worker health, end of story,” he said.

Several advocacy groups intervened in the case, including Justice For Migrant Workers. Drawing on their submissions and past legal decisions, Thursday’s ruling agreed that migrant workers are “exceptionally vulnerable because of their immigration status, race and the precarious employment relationships imposed by the structure of the programs under which they are employed.”

The decision noted that under the Seasonal Agriculture Worker Program, workers are tied to a single employer through their seasonal contract and can be fired and sent back to their home countries for refusing unsafe work. The court said Nesathurai’s public health order correctly took into account internationally recognized human rights principles — including the right to health and housing — in identifying migrant workers as “a priority population.”

“These principles require an equity-based approach to public health interventions, and they also require applying the precautionary principle in a way that responds to migrant workers’ vulnerability,” said Danielle Bisnar, a partner at Toronto-based labour law firm Cavalluzzo who represented intervener Canadian Lawyers for International Human Rights.

Norfolk County has one of the highest proportion of migrant workers in the province, and also has one of the highest COVID-19 fatality rates the decision noted, citing a massive outbreak at Scotlynn Growers, where 200 migrant workers tested positive for the virus. One, 55-year-old Juan Lopez Chaparro, died.

“Managing this outbreak required 30 public health staff working 14-hour days, for days or weeks at a time,” Thursday’s ruling said.

“Too many COVID-19 cases can overwhelm medical resources … Those who do not get access to proper medical care may die. Any steps that may reduce that risk are not arbitrary.”

Norfolk County Mayor Kristal Chopp said she “always had confidence in our medical officer of health’s approach to managing COVID-19 in the community.”

“I’m pleased that the court has agreed,” she said in a statement. “We’re looking forward to working with our farming community, as well as the federal and provincial governments, to better prepare to manage COVID-19 next growing season.”

The court found that in siding with farmers, HSARB also failed to consider how “illiteracy, lack of education and language barriers” may hamper migrant workers’ ability to self-isolate in large groups.

The decision Thursday noted that video evidence from Schuyler’s bunkhouse, despite being 3,300 square feet, showed that “the bathroom stalls are small with little space between them” and that it would require “complex scheduling and choreography” to ensure social distancing.

Schuyler said his farm followed quarantine requirements and did “everything we could to make that a comfortable experience for our workers.”

Lawyer Shane Martinez, who represented worker advocacy groups that intervened in the proceedings, said the decision “reaffirms the sound judgment exercised by Dr. Nesathurai when he issued the order.

“It is also an important statement by the divisional court acknowledging the systemic vulnerabilities of migrant farmworkers. We must continue to raise awareness and demand further systemic changes to appropriately protect these essential workers who are the lifeblood of the agricultural industry in Canada.”

Those demands include permanent immigration status for temporary foreign workers, said Chris Ramsaroop of Justice For Migrant Workers, as well as stronger enforcement and anti-reprisal mechanisms.

Ramsaroop said the three-worker-per-bunkhouse limit should be extended across Ontario by the province’s chief medical officer and applied beyond mandatory self-isolation periods.

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