 |
| Taneeta Doma |
Approximately 70,000 migrant agricultural workers worked in Canada last year. They worked in every type of weather — in the cold, during forest fires and in heat domes. For migrant workers in Ontario, who numbered just under 30,000 in 2023, working in the heat illustrates many of the ways that provincial legislation fails to protect those in agriculture.
The International Labour Organization (of which Canada is a member) lists agriculture as a hazardous sector and that one in three fatal occupational injuries are among agricultural workers. Agricultural work is wrought with danger by its very nature — long hours, heavy and sometimes complicated equipment, repetitive or straining movements and exposure to the elements as well as hazardous materials in some cases. Despite this, and despite the many other jurisdictions that have recognized these dangers through legislation and policies, the Ontario government relies on a provision of the Occupational Health and Safety Act to protect agricultural workers: “[E]mployers must take every precaution reasonable in the circumstances for the protection of a worker.”
Agricultural workers are exempt from many of the protections Ontario workers enjoy under the Employment Standards Act, such as breaks, capped working hours, overtime pay, vacation pay and public holiday pay in some circumstances. There are no industry-specific regulations for agriculture, even though they (rightfully) exist for construction and health care. Agricultural workers also do not have the right to unionize, according to the Supreme Court of Canada in Ontario (Attorney General) v. Fraser 2011 SCC 20.
It is no surprise, then, that there is no heat-stress regulation in the province of Ontario. The province made an announcement last year regarding a proposed regulation, but since then has been silent on the matter. In response to a question about Justice for Migrant Workers’s open letter calling on the province to implement such a regulation, Premier Ford stated that employers should be responsible for taking care of their employees — and they do.
It is clear that putting the responsibility of safe working conditions in employers’ hands is neither effective nor appropriate (otherwise the Employment Standards Act wouldn’t exist). Left to employers, agricultural workers contracted COVID-19 and died during the initial waves of the pandemic; have fallen from great heights or been crushed by agricultural machinery; and during heat waves, in the Migrant Farmworker Legal Clinic and Justice for Migrant Workers’ experience, workers lack sufficient breaks, resting time, access to washrooms, shade and water.
These are not new allegations. They are also not accidents or indications of “bad-apple farmers.” They are calculated decisions by a government that prioritizes agricultural employers over the workers who grow our food.
These are the same workers who come to Canada on closed work permits, meaning their immigration status is tied to their employer. When migrant workers are terminated, their departure from Canada is a private arrangement between their employers and the government of Canada — without access to even minimal deportation protections.
Often, members of the public will ask why workers don’t speak up further and what measures are in place to allow complaints. In short, there are none that reflect migrant workers’ experiences and realities. The same Occupational Health and Safety Act allows complaints, to be clear, but of what use are they when employers can both terminate and deport workers who speak out?
It should also not escape the public’s notice that the vast majority of migrant agricultural workers are racialized. The largest temporary foreign worker program in Canada employs workers from Mexico and selected Caribbean countries; another stream, the Agricultural Stream, employs workers from anywhere, but most often from countries like Guatemala, India and the Philippines. This does not include undocumented workers.
The public has a responsibility to hold its governments accountable for the depravity of their inaction, which has enabled what has been called a system of indentured labour. But lawyers, who take an oath to uphold the so-called rule of law — the same rule of law that allows for second-class treatment of migrant agricultural workers — have an even greater obligation to push for systemic changes.
Taneeta Doma is a staff lawyer with the Migrant Farmworker Legal Clinic, a project of the University of Windsor Faculty of Law and Justice for Migrant Workers, a migrant justice collective that advocates with and for migrant farmworkers across Canada.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
Interested in writing for us? To learn more about how you can add your voice to Law360 Canada, contact Analysis Editor Peter Carter at peter.carter@lexisnexis.ca or call 647-776-6740