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Labour board decision underlines need for systemic change to support migrant workers, says lawyer

Thursday, November 19, 2020 @ 7:28 AM | By John Schofield

A recent Ontario Labour Relations Board decision that awarded a Mexican migrant farm worker $25,000 for being fired when he complained about a large COVID-19 outbreak is a signal to employers that pandemic-related reprisals will not be tolerated — and a wake-up call to Canadian legislators for systemic reform to protect vulnerable migrant workers, say two labour and employment lawyers.

“We have a system that is designed to marginalize these workers and to make their rights unenforceable,” said Fay Faraday, a Toronto-based social justice lawyer at Faraday Law and an assistant professor at Osgoode Hall Law School who teaches labour and employment law, among other subjects.

Fay Faraday, Faraday Law

“But the entire system that allowed this tragedy to unfold still exists,” she told The Lawyer’s Daily. “This decision does nothing to change that system. And the flaws in that system have been known literally for decades.”

In a Nov. 9 decision in Luis Gabriel Flores Flores v. Scotlynn Sweetpac Growers Inc. (OLRB case no. 0987-20-UR), Ontario Labour Relations Board (OLRB) alternate chair Matthew R. Wilson ordered Scotlynn Sweetpac Growers of Vittoria, Ont., south of Simcoe, to pay Flores $16,811 in damages for loss of future earnings, $5,000 in damages for pain and suffering, $2,654 in damages for reasonable expectation of continued employment and $538 for lost wages.

Flores, who had been coming to Canada for temporary farm work since 2015, was working at one of Scotlynn’s farms in Norfolk County in southwestern Ontario, sharing a bunkhouse apartment with about 12 other workers, when he was caught up in a COVID-19 outbreak that infected 190 workers, including him and his bunkmate, Juan Lopez Chaparro, who died of the illness on June 20, 2020.

After learning of his co-worker’s death at a special meeting, Flores told one of his supervisors that the farm should take better care of its workers, according to testimony described in the decision. The next day, Robert Biddle, then owner of Scotlynn, entered Flores’ bunkhouse and accused him of speaking to the media, displaying a video news clip on his cellphone as supposed proof. He told Flores he would be sent back to Mexico in the “wee hours of the night.”

On June 21, Flores left the farm and was able to contact Susana Caxaj, a research supervisor from the Western University school of nursing he had met by chance during a quarantine period in April. Caxaj put him in touch with the Toronto-based Migrant Workers Alliance for Change, an advocacy group, which arranged legal representation for Flores.

The employer, as respondent, denied that Flores was dismissed. But even if he was, it argued, his application under s. 50 of the Occupational Health and Safety Act (OHSA) must be dismissed because, in making comments to the media, he was not engaged in a protected activity under that section.

Counsel for Flores argued that he was seeking protection under s. 50 for complaining about the working conditions and the lack of COVID-19 protections, and that the employer had not satisfied its evidentiary burden under subsection 50(2) of the Act.

In ruling that Scotlynn did contravene s. 50 of the Act, the OLRB alternate chair noted that the power imbalance between the employer and Flores “should have been more carefully managed since a reprisal can strike a far deeper wound than might otherwise occur in the traditional employment relationship.

“Mr. Flores was particularly vulnerable as a temporary worker from Mexico who did not speak the language,” stated the decision. “He did not have access to the resources to minimize the pain and suffering, nor was he able to abate the injury suffered because of Scotlynn’s reaction to his objections about health and safety at the farm.”

Faced with employers who may feel they can get away with poor treatment, one of the few factors weighing in a migrant worker’s favour is the onus on employers under the Act to show that they did not act contrary to the legislation, said Faraday.

“When the power balance is so extreme,” she added, “and you’re dealing with workers who are on temporary migrant status, who are dependent on the employer for their status in the country, that makes a huge difference, that the employer is put to the test to prove that they have not acted to enact a reprisal.”

Faraday noted that cases like Flores’ turn mainly on the facts, and the legal analysis itself is not especially complex. But “the very nuanced attention to the facts that the board chair gave really helps to identify the barriers to access to justice that migrant workers face,” she said. “And for Mr. Flores, his is one of the very few cases where he was able to get past those barriers.”

Still, she added, it was only through his own sense of justice, his fortitude and a large dose of luck in meeting Caxaj that he prevailed. She said migrant workers have also been more vocal amid the pandemic because, for them, it’s been a case of life and death.

“What I think is so significant about this decision is it underscores why we cannot, as a society, persist with a system that leaves workers to the whims of fate in this way,” said Faraday. “What’s been revealed here should put a stop to a system that facilitates this kind of exploitation, because it’s not just this case. It’s all the other workers who weren’t fortunate enough to run into someone who by happenstance could connect them with people who could help them.”

Justin Tetreault, a senior associate lawyer with Toronto-based Grosman Gale Fletcher Hopkins LLP, a labour and employment law firm, said that while the decision does not break new ground, it does provide important takeaways for employers, employees and counsel.

Justin Tetreault, Grosman Gale Fletcher Hopkins LLP

The ruling is a wake-up call for employers — and a comfort for employees — that the OLRB is taking COVID-19 concerns seriously and reprisals will not be tolerated, he said. “It is not enough to deal with outbreaks,” he added. “An employer must take the appropriate measures to prevent them.”

For counsel, said Tetreault, one of the most interesting parts of the decision is the speed with which it was rendered. “With courts in Ontario still not up to full speed and the backlog of cases growing,” he added, “the decision is a reminder to counsel that in the appropriate case (such as this one where there is a clear reprisal) the OLRB is an option for a quick and effective resolution.”

John No, a staff lawyer in the workers’ rights division of Toronto-based Parkdale Community Legal Services, said the OLRB ruling is the first involving a migrant farm worker and a reprisal issue, and the damages award was high by OLRB standards.

“For the first time, it’s been confirmed that this happens, even though it’s been an open secret for decades in the industry,” he told The Lawyer's Daily. “I think this will give workers reassurance that if they do speak out, they can be compensated or, on the flip side, the employers will now know that they will have to pay out fairly significant amounts if they do decide to penalize someone for asserting their rights.”

In August, the Leamington, Ont.-based Ontario Greenhouse Vegetable Growers (OGVG) issued a news release supporting the creation of an independent body to address workplace complaints by agri-food workers.

“OGVG has been calling for a number of additional tools and services to help address acute issues with employee safety and supports throughout the COVID-19 pandemic” Joe Sbrocchi, the association’s general manager, said in the release. “We believe an ombudsman-like position to mediate employee-employer interactions would serve both parties and help to strengthen the reputation of the long-standing temporary foreign worker programs.”

R. Paul Hosack, a lawyer with Simcoe, Ont.-based MHN Lawyers LLP who served as counsel for Scotlynn Sweetpac Growers Inc., declined to comment on the decision.

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