Court restores order limiting number of quarantining migrant workers to 3 per bunkhouse

An order limiting the number of quarantining migrant workers in Norfolk County to three per bunkhouse has been restored following a ruling from an Ontario court.

It's the latest in a series of decisions around the order after the county's medical officer of health, Shanker Nesathurai, introduced the cap in March.

Farmer Brett Schuyler challenged the limit before the Health Services Appeal and Review Board and won in June, but a divisional court decision dated Thursday, found "palpable and overriding errors" were made by board.

The unanimous decision restored Nesathurai's order.

Advocates are calling it a "significant victory."

"At the heart of this decision was the question of whether migrant farm workers would be afforded even this baseline level of protection in the midst of a global pandemic," stated Dora Chan, a staff lawyer at Industrial Accident Victims' Group of Ontario (IAVGO) who intervened during the hearing.

The decision describes migrant workers as "exceptionally vulnerable" because of their immigration status, race and the precarious employment relationships created by the programs they rely on for work.

Reached by phone, Schuyler, who argued the order was "arbitrary" and jeopardized planting and harvesting plans, said the decision was "disappointing."

"From day one this appeal has been about food security and protecting worker health and rights," the Simcoe-area farmer added. "There's 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."

Schuyler said he's hopeful the lessons learned during this year's growing season will mean "common sense can prevail" next year and that officials will be willing to sit down with farmers and workers to figure out "how we can do this better."

Lawyer says broader reform needed

Haldimand-Norfolk has the highest number of migrant workers per capita in Ontario, according to the decision, which also noted it has one of the highest COVID-19 fatality rates in the province.

The counties have seen 475 confirmed cases of the virus as of Friday. Thirty-two people have died, while 422 have recovered.

More than 200 those case were migrant workers from Scotlynn Group, a large-scale farming operation in Vittoria that trucks fruits and vegetables across North America.

One of the workers, Juan Lopez Chaparro, died of COVID-19. The 55-year-old was a father of four whose wife described him as a hard-working man of peace.

Norfolk Mayor Kristal Chopp said she was pleased with the court's ruling.

"I always had confidence in our Medical Officer of Health's approach to managing COVID-19 in the community, and I'm pleased that the court has agreed," she wrote in a statement.

"We're looking forward to working with our farming community, as well as the federal and provincial governments, to better prepare for next year."

In an interview with CBC, Chan said migrant workers face risks no one else has to, a sentiment echoed in the decision.

"Allowing larger numbers to isolate together exposes (workers) to a level of risk not tolerated for others in the community, thereby increasing the vulnerability of an already vulnerable group," it reads.

"If the order is necessary, especially in circumstances where the risk is high, then its financial impact is irrelevant," Thursday's decision also states.

Chan said while she celebrates the decision it doesn't address the root causes of the vulnerability that plagues migrant workers, adding systemic issues require broader changes.

She also pointed out the order restricting the number of workers quarantining in each bunkhouse is unique and may lead others to set similar limits.

"What the decision does is it recognizes that this was warranted," said Chan. "Hopefully it is able make it clear that migrant workers are so often ignored … so often valued only for their labour."