In a decision recognizing migrant farm workers as “exceptionally vulnerable” and a priority population, the Ontario divisional court has restored an order that caps the number of migrant farm workers isolating in a bunkhouse at three people during the 14-day quarantine period required of all travellers arriving in Canada.

Dr. Shanker Nesathurai, Haldimand-Norfolk medical officer of health, issued the order on March 24 to help contain the spread of COVID-19 in Haldimand and Norfolk counties, where approximately 200 migrant farm workers have tested positive for COVID-19 to date and one worker, Juan López Chaparro, has died. Across Ontario, over 1,200 agricultural workers have contracted the virus and at least three, all from Mexico, have died from it.

Employers in several provinces have responded to the COVID-19 crisis by prohibiting migrant farm workers from leaving the property, which raises human rights concerns.

Schuyler Farms Limited, which employs about 220 migrant farm workers each year, successfully appealed the order before Ontario’s Health Services Appeal Review Board, which decided in June that Dr. Nesathurai “did not have reasonable and probable grounds to impose the requirement” and that the three-person limit was “arbitrary.”

Dr. Nesathurai appealed the board’s decision and the expedited case was heard before the Ontario divisional court on July 29. He could not be reached for comment.

“Ultimately, at the centre of this case is a question about what protections would be afforded to migrant farm workers in Canada and specifically whether even this very basic protection to limit the number of workers housing together is too much to ask,” said Dora Chan, staff lawyer for the Industrial Accidents Victims’ Group of Ontario, an intervenor in the case.

“Medical officers of health have discretion over their health unit to decide what is best for their unit,” she added. “Every unit has differences in terms of population needs.”

Haldimand and Norfolk counties host over 4,000 migrant workers — the highest number per capita in the province. The court ruling recognizes migrant farm workers as a “one of the significant priority populations” facing health inequities in Haldimand-Norfolk, and affirms the obligation of public health authorities to address these inequities. It also recognizes that migrant farm 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.”

Maleeka Mohamed, counsel for Justicia for Migrant Workers, which also intervened in the case, released a statement calling on medical officers of health across Canada to implement similar orders.

“The court’s explicit recognition and discussion of the particular vulnerabilities migrant workers face as a result of the nature of the work permit system under which they are hired highlights the importance of Justicia’s demands for status for all migrant workers upon arrival to Canada,” the statement read.

A unique living situation

The health order requires all employers of migrant farm workers to submit isolation plans to the health unit for approval, prior to the workers’ arrival. Dr. Nesathurai supplied a checklist, supplemental to the order, that imposed the three-person limit for bunkhouses during the quarantine period.

The order has faced resistance from the region’s farming companies, with agribusinesses decrying the impact of COVID-19-related health restrictions on productivity and even national food security, despite evidence that Canada’s agri-food sector is highly oriented towards cash crops. Canada exported $56 billion in agri-food and agriculture in 2016.

“Canada wants to ensure that it is dominant on the international agricultural scene,” said Chris Ramsaroop, an advocate with Justicia for Migrant Workers. “In my opinion, any way to try to improve or advance conditions for workers is in direct contradiction of the interests of employers and their ability to control labour.”

Justicia for Migrant Workers is calling on Ontario’s chief medical officer to implement the rule of three people per bunkhouse across the province.

No other person living in the region faces the unique living situation of migrant workers, pointed out Chan. “This is about health equity, and how other people in the health unit aren’t subject to housing conditions whereby their employers maximize the number of people they live with for financial interest,” she said.

The divisional court acknowledged that farmers “have an economic interest in increasing the number of MFWs [migrant farm workers] who can isolate together” and called into question Schuyler Farm Limited’s argument that migrant farm workers “enjoy quarantining in larger groups.”

Employers in several provinces have responded to the COVID-19 crisis by prohibiting migrant farm workers from leaving the property, which raises human rights concerns, reported The Globe and Mail.

In the global economy, migrant workers are seen as unfree labour and indentured workers, Ramsaroop said. “What Haldimand-Norfolk did was proactive, and it was an attempt to intervene to ensure steps were taken to prevent the spread of the pandemic.”

“We haven’t seen the same courageous steps taken by any other health units across Ontario,” he said. “This is something that other public health units should emulate.”

In March 2020, the Toronto Star reported that Dr. Nesauthurai sent a letter to Ontario’s 33 other medical officers of health, criticizing the province’s pandemic response and urging them to use their legal authority to implement stricter regulations in their regions.

Justicia for Migrant Workers is calling on Ontario’s chief medical officer to implement the rule of three people per bunkhouse across the province. It also wants the rule extended beyond the quarantine period, and workers in quarantine to have access to culturally and linguistically competent medical staff who understand the power imbalance between migrant workers and employers.

Housing conditions on Ontario farms

According to Ramsaroop, when it comes to migrant workers’ housing, “nobody is taking responsibility for providing protections to these workers.”

Employer-provided housing for farm workers is exempt from Ontario’s Residential Tenancies Act, which Justicia for Migrant Workers would like to see changed. Likewise, no federal legislation establishes comprehensive housing standards for migrant farm workers, so they have been living in “substandard” housing, such as old bunkhouses and sheds, said Ramsaroop.

“We’re still seeing people in these cramped and confined quarters”

The federal government has outlined basic guidelines for farm employers pertaining to COVID-19. For example, housing must allow for 2 metres of physical distancing, and workers in quarantine may not be housed with workers who are not quarantined.

But the federal government has not required evidence of employer compliance with the guidelines, allowing the submission of old housing inspection reports instead, and for six weeks starting in mid-March it stopped all housing inspections.

Now, according to Ramsaroop, “a disturbing trend” has arisen where inspections are not being conducted in-person. Instead, “the employer simply provides photos or video of the accommodations provided to workers.”

Migrant rights advocates have long been concerned about congregate living conditions. “In the past, we have had people talk about how there’s not enough cleaning equipment, that bathrooms are clogged up, that sewage is entering their kitchen,” explained Ramsaroop.

“We’re still seeing people in these cramped and confined quarters,” he said, adding that his organization receives calls weekly from workers concerned about their living conditions. “They have too many men. Even though technically they may meet the 2-metre distancing, realistically there isn’t space there to protect workers from the spread of the pandemic.”

Substandard housing conditions are no accident, but the result of “the structure of the [Temporary Foreign Worker] Program and the tremendous power imbalance that employers wield over the workers’ lives.”

Chan emphasized “Under the terms of the agreement to work here, there is unfettered discretion to terminate and no appeal rights for workers.”

Justicia for Migrant Workers is calling for the introduction of anti-reprisal mechanisms across municipalities, where employers would face severe fines and penalties if a worker faces reprisal or is denied the opportunity to return to work the following year for reporting housing or health concerns.