Schuyler Farms Ltd. v. Nesathurai
CLAIHR intervenes in migrant farmworkers housing case, advocating for rights protected under international law
On Friday, July 24, Canadian Lawyers for International Human Rights (CLAIHR) filed w at the Ontario Superior Court as an intervener in the case of Schuyler Farms v Dr. Shanker Nesathurai, Medical Officer Of Health, Haldimand-Norfolk Health Unit.
In this case, the Court will consider whether a regional Medical Officer of Health (MOH) had reasonable grounds to limit the number of temporary migrant farmworkers who may quarantine together after arriving in Canada to 3 per bunkhouse. This order was made to protect workers from exposure to COVID19.
A large farm appealed the MOH’s order to the Health Services Appeal Review Board (HSARB). The HSARB allowed the appeal and overturned the MOH’s order, even though medical experts testified that risk of infection increased exponentially with every additional person in a bunkhouse. The MOH now appeals to Divisional Court. CLAIHR’s intervention in this appeal argues that the MOH’s order was consistent with the migrant farmworkers human rights as protected in international law, including the rights to housing, safe working conditions, equality, and the highest attainable standard of health. CLAIHR argues that this rights-affirming approach was not arbitrary; it was based in a scientific assessment of the measures needed to protect migrant workers from COVID19.
On March 11, 2020, the World Health Organization (WHO) declared the Coronavirus COVID-19 (COVID-19) to be a pandemic. On March 17, 2020, the Province of Ontario declared a state of emergency.
In response, the Haldimand-Norfolk Medical Officer of Health (MOH) ordered that all temporary workers arriving in Canada must complete their federally-mandated 14-day quarantine in living quarters housing no more than three people.
Haldimand-Norfolk has the highest number of migrant workers per capita in Ontario. They work in Canada pursuant to the SAWP (Seasonal Agricultural Worker Program), a federal immigration agreement between Canada and Mexico and other countries in the Caribbean. This program limits workers’ ability to change employers and their capacity to return for subsequent seasons is largely dependent on their employer.
The program also mandates that employers of seasonal workers provide on-site housing. In Haldimand-Norfolk, temporary farmworkers are typically housed in bunkhouses, which range in size, with the largest bunkhouses housing up to 50 workers or more.
These bunkhouses are the principal point of contention in this appeal. The respondent, a large farm in the region, appealed the MOH’s order to the Health Services Appeal Review Board (HSARB), arguing that the MOH’s order was arbitrary and that each bunkhouse should be assessed individually. They argued that properly spacing workers’ beds within the bunkhouse is adequate to prevent the spread of COVID19, even where those workers are living in the same space and sharing facilities such as bathroom and kitchen.
The MOH responded that the risk to each worker increases exponentially with each additional quarantined worker. Further, the size of the bunkhouse is less relevant than the design, which may include shared kitchen and bathroom space. An expert in infectious diseases testified that it would be very difficult for farmworkers who are not experts in infection control to keep shared surfaces, such as bathrooms, sufficiently clean to prevent transmission of the virus, even if the bathroom is large enough to facilitate physical distancing. Further, if any worker shows symptoms of COVID19, regardless of whether they test negative for the disease, every worker living with that individual must isolate for an additional 14 days, extending the psychological harm caused by quarantine and isolation. The HSARB allowed Schuyler Farm’s appeal, finding that some bunkhouses could be large enough to accommodate more than three workers. The MOH has appealed to the Divisional Court, and CLAIHR will appear as an intervener on June 29, 2020.
CLAIHR argues that the limit of three workers per bunkhouse must be assessed with regard to workers’ international law rights to the highest attainable standard of physical and mental health, adequate housing, and just and favourable conditions of work without discrimination.
Relevant international law conventions include the Universal Declaration of Human Rights (UDHR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the United Nations Declaration on the Rights of Peasants and Other People Working in Rural Areas (UNDROP).
All of these instruments provide for the right to the highest attainable standard of physical and mental health and adequate housing, as well as to just and favourable conditions of work. These rights are all linked to the inherent dignity of all persons and are indispensable for the fulfillment of all human rights recognized in international law. All human rights “are universal, indivisible, interrelated, interdependent and mutually reinforcing and must be treated in a fair and equal manner”.
International law also recognizes that migrant and agricultural workers are systemically vulnerable to increased occupational health and safety risks, social and economic marginalization, and exploitation by employers.
Experts have also highlighted the particular risks faced by migrant workers due to the virus and advised states to ensure that migrant workers’ rights to health and life-saving interventions are met. The continuing outbreaks signal the importance of adequate housing conditions during isolation.
CLAIHR argues that the grounds the MOH took into account in reaching the conclusion that only three workers may quarantine together in a bunkhouse were consistent with Canada’s international human rights obligations. This rights-promoting and science-based approach should be upheld.
“Migrant workers’ rights cannot be ignored in order to facilitate agricultural profits”, says James Yap, CLAIHR’s Board President. “The ongoing outbreaks of COVID19 among migrant workers in Ontario highlight that it is particularly important to ensure these workers are protected from this disease. That is why CLAIHR is going to ensure that the rights migrant workers hold in international law are recognized and protected”.
CLAIHR’s factum is available here.
CLAIHR extends many thanks to Danielle Bisnar and Aminah Hanif of Cavalluzzo LLP for their pro bono representation.
CLAIHR is a non-governmental organization of lawyers, law students, legal academics, and other jurists, founded in 1992 to promote human rights law from a Canadian perspective through education, research, and advocacy.
Danielle Bisnar, Counsel, dbisnar[at]cavalluzzo[dot]com
Karen Segal, CLAIHR Board Member, karen.r.segal[at]gmail[dot]com