Written by Justine Wong, 3L, University of Ottawa Law
The Ontario Labour Relations Board (OLRB) recently found that employer Scotlynn Sweetpac Growers Inc. dismissed migrant worker Gabriel Flores from its crop farm after he spoke out against COVID-19 concerns regarding the farm’s living and working conditions. The decision is called Flores v Scotlynn Sweetpac Growers Inc.(0987-20-UR). The dismissal raises concerns about working conditions in the COVID-19 pandemic especially for labour groups like migrant workers who depend on their employers to provide proper living conditions as well. COVID-19 exacerbates the employer-employee power imbalance that results from having to rely on the employer for living accommodations which can make raising concerns contentious.
In Flores’ case, 190 Scotlynn workers tested COVID-19 positive after sharing poor living conditions in company bunkhouses that did not allow workers to maintain a safe distance from one another. The positive test results occurred despite the mandatory 14-day quarantine for workers upon their arrival from Mexico in April 2020. The Scotlynn outbreak prompted another 14-day quarantine at a local hotel in June 2020. Four events transpired within the same month after workers were bused back to the farm. First, three workers expressed concerns about the conditions and sought return to Mexico. Second, a worker living in Flores’ apartment became hospitalized and died from COVID-19 complications. Third, Flores told his supervisor that the farm should take better care of its workers. Fourth, Scotlynn dismissed and sent Flores back to Mexico after accusing him of speaking to the media about the farm’s conditions. The case turned on the credibility of the parties’ witnesses. Testimony for Scotlynn was evasive or unclear.
The Flores case makes clear that migrant workers can rely on protections under the Occupational Health and Safety Act in the COVID-19 context. The OLRB found, for example, that by voicing his concerns, Flores engaged section 25(2)(h) of the Act which requires the employer to take all reasonable precautions in the circumstances to protect workers. The OLRB also found that Scotlynn violated section 50(1) of the Act which states that no employer can dismiss a worker for seeking the Act’s enforcement. Given that Flores was dismissed, Flores filed a complaint under section 50(2). However, Scotlynn failed to satisfy the burden of proof required under section 50(5) to dispose of Flores’ complaint. The OLRB found that Scotlynn violated section 50(1) of the Act, and therefore ordered Scotlynn to compensate Flores for his dismissal.
Despite the legislative protections available to workers, Flores’ case shows that more needs to be done to prevent similar dismissals, especially with respect to COVID-19. Both employers and workers must cooperate and be more understanding of both parties’ duties in the evolving COVID-19 situation. Education is key. The Canadian Government, for example, published COVID-19: A Guide for Temporary Foreign Workers in Canada (last modified September 2020). The guide reinforces the need for cooperation between and accountability from both parties by making clear to workers the ramifications for contravening COVID-19 requirements and providing channels to report employers’ unsafe practices.
Among these channels is a confidential Government of Canada Tip Line to report an employer violating COVID-19 requirements, and provincial contacts for reporting unsafe workplace conditions. Guidance for Employers of Temporary Foreign Workers Regarding COVID-19 (last updated April 2020) similarly requires that employers follow certain criteria. Employers providing accommodation must meet additional criteria, like regularly sanitizing the housing space and arranging for physical distancing. Employers are also asked to report employees who violate the Quarantine Act which requires, for example, mandatory 14-day quarantine upon arrival in Canada under the COVID-19 Emergency Orders in Council (OIC) made pursuant to section 58 of that Act.
Employers are further held accountable given that they must hire migrant workers either through the Temporary Foreign Workers Program (TFWP) or the International Mobility Program (IMP). The TFWP requires employers to obtain a Labour Market Impact Assessment (LMIA) to hire temporary workers, whereas the IMP does not. A positive LMIA called a Confirmation letter is a document that states that there is a need for a foreign worker to fill the job where no Canadian worker can. By contrast, exemption from the LMIA in the IMP is possible where hiring a temporary worker results in “broader economic, cultural or other competitive advantages for Canada” or “reciprocal benefits for Canadians and permanent residents.” Employers must comply with all the requirements under their respective programs and pass inspections by Employment and Social Development Canada (ESDC)/Service Canada as authorized under the Immigration and Refugee Protection Act (IRPA) and Immigration and Refugee Protection Regulations (IRPR). Inspections can be random or implemented due to suspected or past non-compliance or a disease outbreak at the work site, with or without prior notice to employers.
Non-compliant employers face punishment following inspection. Penalties can include warning letters, monetary fines, and temporary, or for very serious violations, permanent banishment from either or both the TFWP and IMP. To give some idea of the range of monetary fines possible, employers may have to pay $500 to $100,000 per violation up to $1 million over one year. Immigration, Refugees and Citizenship Canada (IRCC) also publishes a list of non-compliant employers, their penalties, and reasons that correspond with IRPR provisions on its website. Most recently, in January 2021, a farm in Burford, Ontario was fined $200,000 and permanently banned from hiring temporary foreign workers for failing COVID-19 requirements because of two reasons. The first reason was stopping a worker from complying with the Emergencies Act or Quarantine Act (Reason 18). The second reason was failing to separate quarantining from non-quarantining workers and failing to maintain appropriate physical distancing measures in workers’ living accommodations (Reason 21).
While inspections can protect temporary workers and ensure employers’ compliance, more frequent random inspections could help prevent COVID-19 infections and hazards that lead to situations like Flores’. An even more preventative measure could also be making COVID-19 vaccines available to migrant workers upon their arrival in Canada. Within Canada’s current priority framework for vaccination, migrant workers in the agricultural industry are essential workers under Stage 2 as outlined by the National Advisory Committee on Immunization (NACI). Stage 2 recognizes that outbreaks have occurred in migrant workers’ quarters and that certain work like food production is an essential service that cannot be done virtually. As Canada’s National Strategy for Critical Infrastructure has outlined within the COVID-19 context, agriculture workers are essential to the supply of critical goods like food, one of the ten sectors of Canada’s critical infrastructure.
Given their importance to Canadian society, migrant workers should be given stronger priority in the COVID-19 vaccine rollout. In December 2020, Singapore’s foreign minister announced that the COVID-19 vaccine would be free for migrant workers, but not mandatory, and administered on the same basis as Singapore’s local people with priority determined by risk and need. If feasible on Canadian soil, a model like Singapore’s may provide a strong balancing between workers’ rights to refuse vaccination and be vaccinated for protection in their essential work, as well as workers’ rights to be prioritized as essential workers while ensuring the safety of other prioritized groups in Canada.
Justine Wong, “Flores v Scotlynn Sweetpac Growers Inc.: Migrant Workers During COVID-19 and Lessons Learned”, Canadian Law of Work Forum (February 3 2021): https://lawofwork.ca/flores-v-scotlyn…-lessons-learned/