Key Cases - Migrant Workers Rights in Canadian Jurisprudence (2/3)

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Introduction

Canada has long relied on racialized migrant workers to address labour shortages in the agriculture sector. While this practice has helped sustain the industry, it has also raised several human rights concerns.  See my first blog post in the series for a review of Logan v Ontario (Solicitor General)[1](“Logan”), covering these issues.

The Seasonal Agricultural Worker Program (the "SAWP") is known to create labour insecurity, hostile work environments, and propagate systemic discrimination.[2] Throughout the last decade, migrant workers have advanced numerous human rights complaints against their SAWP employers at the Human Rights Tribunal of Ontario (the “HRTO”) and beyond. Gradually, our tribunals and courts are adopting more progressive legal frameworks, recognizing the discrimination that migrant workers face in light of their social circumstances. However, despite the evolution towards proper recognition of migrant workers' rights, much work remains to be done in this area.  This blog examines key cases decided pre-Logan, which address the rights of migrant workers.

Case Law Review

2013 – Monrose v. Double Diamond Acres Limited[3]

In 2009, Mr. Monrose, a black man from St. Lucia, took part in the SAWP. He was supposed to be in Canada from January until September, but in June his employer, Double Diamond, terminated his employment early and Mr. Monrose was deported to his home country.[4]

Following his deportation, Mr. Monrose advanced a claim at the HRTO alleging that he had been discriminated against. He explained that he had complained about his employer referring to him as a "monkey" some three months before his termination.[5] The adjudicator acknowledged that there was a lack of corroborating evidence to support Mr. Monrose’s assertion, but recognized that the lack of witnesses was a result of the labour insecurity suffered by foreign temporary workers. The tribunal acknowledged that SAWP employees tend to be reluctant to testify due to the fear of repercussions from their employers.[6]  

The tribunal ultimately found that Mr. Monrose was called a “monkey” by his employer and that was fired because he complained about the use of this term. As a result, his employer was found to have violated s. 34 of the Human Rights Code[7] (the “Code”).[8] Of significant note, the adjudicator found that the use of the term "monkey" to describe a Black man is "so egregious that one incident may be sufficient to establish a violation of the Code."[9]  

In Logan, which was canvassed in my first blog of this series, the tribunal took into account the social and political realities of migrant workers in finding that Mr. Logan had been discriminated against. In Monrose, the tribunal relied on a more general framework in finding that certain words are objectively discriminatory. The HRTO touched upon the unique insecurities faced by temporary foreign workers, but did not expressly rely on their unique vulnerabilities in rendering its decision, and finding that use of the term amounted to a Code violation. The unique position of the workers was relevant to explaining why there was little corroborating evidence, but Mr. Monrose’s status as a temporary foreign worker did not factor in or serve to aggravate the violation.

2015 – OPT v. Presteve Foods Ltd.[10]

OPT was a temporary foreign worker from Mexico employed in Canada by Presteve Food Ltd., a fish processing plant. During her time at Presteve, OPT alleged that she was subjected to repeated unwanted sexual solicitations and advances, and that she was sexually assaulted by the owner.[11] OPT testified that she felt obligated to accept the owner's sexual advances, as she feared she would be sent back to Mexico if she refused him. Indeed, he had threatened as much on numerous occasions.

The HRTO ultimately found that the owner’s actions amounted to attempts to assert power, control, dominance and authority over OPT (and other women in the program).[12] The adjudicator acknowledged the power dynamics at play, given OPT’s status as a migrant worker in an environment with frequent employee rotation. The court found that the respondent had violated sections 5(1), 7(3) and 7(3)(a) of the Code as he had engaged in "persistent sexual harassment in the workplace"[13] and "created a sexually poisoned work environment"[14], which OPT could not escape. As in Logan, the tribunal accepted expert testimony about the prevalence of labour insecurity among migrant workers, which leads to many operating in a state of constant fear and vulnerability. 

2020 – Schuyler Farms Limited v Dr. Nesathurai[15]  

More recently, in response to the COVID-19 pandemic and under the Health Protection and Promotion Act, Dr. Nesathurai ordered that all arriving migrant farm workers in the Haldimand-Norfolk region complete their 14-day quarantine in a bunkhouse limited to three migrant workers.[16] Schuyler Farms, which was located in the region, argued that it should not be limited to three workers per bunkhouse, but rather sought to house 19 to 25 workers together. The Health Unit for the region rejected this position, and continued to impose the three-person limit, as suggested by healthcare professionals.[17] In response, Schuyler Farms submitted a claim to the Health Services Appeal and Review Board (the “HSARB”) to strike the three-person limit, arguing that it was an arbitrary number. The HSARB concluded that the limitation was in fact, arbitrary.

The matter was subsequently judicially reviewed to the District Court, where the court applied a human rights framework to uphold the public health order. The court noted the unique vulnerabilities and health inequities experienced by migrant workers, and highlighted their right to adequate housing and protection from disease, as well as the importance of  avoiding disproportional impacts of COVID-19 on migrant workers.[18] This case was decided two years before Logan,  and set the tone for the HRTO’s recognition of migrant workers' vulnerabilities in that decision, as well as the need to consider the unique circumstances of migrant workers in cases involving their rights.  

Conclusion

Reliance on sociological evidence and frameworks has been crucial to recognizing the human rights and social realities of foreign temporary workers in Canada. The cases presented above demonstrate a positive evolution in the law and outline the importance of considering the social realities of migrant workers in order to continue promoting equality and justice in Canada.  

[1] 2022 HRTO 1004 [Logan].

[2] Fay Faraday, “Made in Canada: How the Law Constructs Migrant Workers’ Insecurity” (2012) Metcalf Foundation at 5.

[3] 2013 HRTO 1273 [Monrose].

[4] Monrose at para 2.

[5] Monrose at para 6.

[6] Monrose at para 55.

[7] Human Rights Code, RSO 1990, c H19 [Code].

[8] Code at s. (34).

[9] Monrose at para 62.

[10] 2015 HRTO 675 [Presteve].

[11] Presteve at para 2.

[12] Presteve at paras 171 & 176.

[13] Presteve at para 169.

[14] Presteve at para 172.

[15] Schuyler Farms Limited v. Dr. Nesathurai, 2020 ONSC 4711 [Schuyler Farms].

[16] Schuyler Farms at para 2.  

[17] Schuyler Farms at para 21.

[18] Schuyler Farms at para 95.