Case Alert: Ontario Labour Relations Board Decisions on Worker Health and Safety and Retaliation

Migrant workers are essential but vulnerable members of the Canadian workforce. This is in part due to their temporary immigration status. During the Covid-19 pandemic period, more than 1000 migrant farm workers have tested positive for the virus. Covid-19 has highlighted the working conditions at these farms which include overcrowded living spaces, and little access to adequate health care and education services for workers.

Two recent Ontario cases highlight the importance of upholding worker safety, especially during the pandemic period. The first case is a reminder that employers may have to take certain health and safety measures to protect workers even if such measures have a significant financial impact on the employer. This is important for Developmental Services (“DS”) Sector agencies operating congregate care homes during Covid-19, where the risk of transmitting and/or contracting the virus is higher. The second case is also a reminder that workers have the right to express their health and safety concerns to their employer without the fear of being penalized, regardless of their position or work status.

First, in Schuyler Farms Limited v. Dr. Nesathurai, 2020 ONSC 4711, the divisional court acknowledged migrant farm workers’ vulnerabilities and upheld the public health order issued by Haldimand Norfolk’s Medical Officer of Health for employers of migrant farm workers to take measures to have only three workers per bunkhouse during self-isolation, even if that places a financial burden on the employer. This case adopted a human rights lens to worker safety, underscoring all workers’ rights to health, including “adequate housing and occupational and environmental conditions,” (para 93). The court noted that especially during the pandemic, reducing the risk of outbreaks and accounting for the disproportionate effect of Covid-19 on certain populations is imperative.

In a related case involving migrant farm workers at Scotlynn Growers, which experienced a Covid-19 outbreak of 199 cases amongst its workers earlier this year, the Ontario Labour Relations Board (the “OLRB”) found that the farm had violated section 50 of Ontario’s Occupational Health and Safety Act (“OHSA”) when it fired worker Gabriel Flores after he spoke up to his supervisors about the health and safety conditions at the farm during the outbreak, which resulted in the death of one of his co-workers. The OLRB found that the farm had in fact terminated Mr. Flores (as opposed to him resigning voluntarily) and that the termination, including efforts to send him back to his home in Mexico amounted to retaliation under the OHSA. The OLRB awarded Mr. Flores $20,000 in lost wages, and $5000 in damages, which is considered significant award by the OLRB.

PooranLaw will continue to monitor legal developments related to employment standards and workplace health and safety. In the meantime, if you require legal assistance, we encourage you to reach out to your regular PooranLaw lawyer, or any member of our team.

Note: This article provides general information only and does not constitute, and should not be relied upon as, legal advice or opinion. PooranLaw Professional Corporation holds the copyright to this article and the article and its contents may not be copied or reproduced in any form, in whole or in part, without the express permission of PooranLaw Professional Corporation.