Migrant Workers Win COVID-19 Protections in Canadian Court Case

The decision upholds a disputed pandemic-related public health rule that limits the number of migrant workers allowed to quarantine together in a bunkhouse to three.
Anya Zoledziowski
Toronto, CA
August 28, 2020, 5:23pm
Migrant workers quarantining in a trailer on a Quebec farm.
Migrant workers quarantine inside a trailer at a farm in Quebec in May.  Photo by Christinne Muschi (Bloomberg via Getty Images)

A Canadian court has ruled that only three migrant farm workers can be quarantined in a bunkhouse at the same time, a move that advocates say protects one of the groups most disproportionately endangered by COVID-19.

Schuyler Farms, which employs more than 200 seasonal agricultural workers, had been fighting to overturn a local public health rule, and wanted to quarantine more than three workers in a single bunkhouse. It had won an earlier appeal, but it was overturned in the latest ruling.

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The Ontario Superior Court, in its ruling, said health officials were making a decision that not only benefited the entire population, it also benefited one of the groups hit hardest by the coronavirus.

“Priority populations are populations in the health unit with poorer health or economic status. (Migrant farm workers) are one of the significant priority populations,” the decision read.

At least three migrant farm workers in Canada have died from COVID-19 and more than a 1000 have been infected.

The decision is part of an ongoing dispute over the pandemic-related rule, one of several guidelines introduced by Haldimand-Norfolk public health in March to ensure physical distancing measures are maintained during the mandatory two-week quarantine period when people, including seasonal migrant workers, first enter Canada.

Advocates, including the nonprofit group Justicia for Migrants, say the rule offers much-needed safeguards for workers who often live in squalid, cramped conditions, and don't have much say over where they live or can isolate during a pandemic. They say migrant workers, most of whom are racialized, are frequently exploited at the expense of their health and safety as a result.

“The court's explicit recognition and discussion of the particular vulnerabilities migrant workers face…highlights the importance of Justicia's demands for status for all migrant workers upon arrival to Canada,” said human rights lawyer Maleeka Mohamed, adding that health districts across the country should implement a similar rule.

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Southern Ontario has been hard hit with COVID-19 outbreaks among migrant workers. Haldimand and Norfolk counties have the highest number of migrant workers per capita in the province, with more than 4,000 of Ontario’s 110,000 migrant workers living in the farm-heavy region, according to court documents obtained by VICE News.

Schuyler Farms, in Simcoe, Ontario, about an hour and a half west of the Canada-U.S. border, had successfully challenged the rule in June, arguing that it was arbitrary, unreasonable, and failed to take into account the wide range of bunkhouse sizes.

“It’s three (migrant workers) in, like, a 300-square foot trailer and three in a 3,000-square foot space. It’s super arbitrary and it’s tough to explain to workers,” said Brett Schuyler, one of the farm’s owners, adding that the workers on his farm prefer to isolate in their bunkhouses.

Assad Mohammed, a 33-year-old migrant farm worker from Trinidad currently employed by Schuyler, said he and his colleagues would have preferred to quarantine in a bunkhouse on Schuyler property.

“The guys really wanted to stay in their own bunkhouse because they are accustomed to it,” Mohammed said.

Mohammed said his bunkhouse typically fits 24 people and has a shared bathroom area with multiple toilets. As for kitchens, “me and my brother cook together because he stays right there, but not everyone cooks at the same time…we try to comply by keeping the place clean.”

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Schuyler called Thursday’s decision “disappointing.”

“From Day 1 this appeal has been about food security and protecting worker health and rights,” he said in a statement. “There is still a lot of work to be done here. Moving forward we need to have confidence that the farmers and farm workers will be consulted and their views given serious consideration.”

Dr. Shenkar Nesathurai, who introduced the rule, said he landed on a maximum of workers in a bunkhouse—regardless of its size—because it’s difficult to maintain physical distancing in common areas like washrooms, kitchens, and exit and entry points, say court documents obtained by VICE News. Bunkhouses can house anywhere from four to 50 people, several people said.

“Design and layout, not size, were key in determining how many people could effectively socially distance in one location,” the decision says.

Schuyler also questioned why migrant workers get a “special rule.” “What about homes with spouses and two kids? That’s the part that gets you angry because this is a special rule for migrant farm workers,” he said.

Seasonal farm workers are employed through a temporary work program that ties them to their employer. That means workers are deported if their bosses let them go, with few opportunities to find new employment in Canada. Fear of retribution and loss of income often prevent workers from voicing their needs or concerns, Mohamed said.

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“There is a power imbalance between the workers and owners, which is why workers rely so heavily on medical officers to put protections in place, “ said Mohamed.

Chris Ramsaroop, a spokesperson with advocacy group Justicia for Migrants, said in an ideal situation, workers would have access to their own washroom and kitchen areas.

“We intervened because we want to provide context, but also show the necessity of addressing longstanding concerns with cramped housing,” Ramsaroop said. Toronto Star reporter Sara Mojtehedzadeh recently recounted how she has seen bunkhouses sheltering 100 workers at a time.

In addition to restoring the rule, the court said Schuyler Farms owes Nesathurai and the local health authority up to $50,000 for legal costs.

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