Migrant farmworker class action certified by the Superior Court
On February 23, 2026, Justice Morgan of the Ontario Superior Court of Justice certified the Palmer v. Attorney General of Canada class action.[1] The representative plaintiffs, on behalf of 75,000 Caribbean and Mexican farmworkers in the Seasonal Agricultural Workers Program (SAWP), allege that Canada violated their section 7 and 15 Charter rights.
The Charter violations relate to (i) the ‘tied employment’ provisions of the SAWP contract that restrict the mobility of workers while in Canada, and (ii) the systematic exclusion of SAWP workers from Employment Insurance (EI) benefits despite being required to pay EI premiums.[2] The representative plaintiffs also allege unjust enrichment in relation to the workers’ exclusion from EI benefits. Justice Morgan certified all of the proposed causes of action and approved the class action to proceed to the merits in all respects.
Discriminatory origins of the SAWP
The SAWP is a seasonal work program in which foreign nationals from Mexico and 11 Caribbean states can work in Canada on a seasonal basis for a maximum of 8 months, returning to their home country before December 15th each year. The program was first implemented in 1966 and continues to the present day. Justice Morgan discussed the discriminatory origins of SAWP at length, based on the expert evidence of McMaster University Professor of Sociology Victor Satzewich.[3] The SAWP “originated in an effort by Canadian government officials to assist farmworkers in filling their chronic labour shortages while, at the same time, keeping racialized workers from becoming a permanent part of the Canadian population.”[4]
Justice Morgan concluded that “[t]he totality of evidence compiled in Professor Satzewich’s report supports his conclusion that the SAWP was built in the 1960s and 1970s around the stereotyping and prejudice held against racialized workers from the Caribbean, and the stereotyping and exploitation imposed on workers from Mexico.” This evidence provides a foundation for the claim “that these discriminatory attitudes persist until today in the practices imposed by the [SAWP].”[5]
Justice Morgan quoted from a 1955 memo from the Director of the Immigration Branch stating explicitly that “[i]t has long been the policy of this Department to restrict the admission to Canada of coloured or partly coloured persons.”[6] This policy of racial exclusion was an outgrowth of racist attitudes held by government officials at that time, which were “most frequently premised on Canada’s climatic conditions” as a pretext to exclude racialized immigrants. Justice Morgan quoted from another 1950s Department of Immigration and Citizenship memo, which explained and justified exclusionary immigration policies in overtly racist terms:
“It is not by accident that coloured British subjects other than negligible numbers from the United Kingdom are excluded from Canada… They do not assimilate readily and pretty much vegetate to a low standard of living. Despite what has been said to the contrary, many cannot adapt themselves to our climatic conditions.”[7]
Justice Morgan then described how “the racially exclusionary policies carried over to the specific issue of migrant agricultural workers entering Canada.” Early, pre-SAWP lobbying efforts by farmers for the admission of Caribbean agricultural labourers to Canada were met with refusals, with the Director of Immigration stating, in 1947, that such workers “are, of course, not assimilable and generally speaking, the climatic conditions of Canada are not favourable to them.”[8] When Canada finally agreed to admit Caribbean farmworkers in 1966, it subjected the workers to temporary contract labour, tied to one employer, and barred their permanent immigration on racial grounds. Justice Morgan explained:
“In the 1960s, as part of the debate as to whether to admit agricultural workers on a temporary, seasonal basis, the government of Canada ultimately conceded that workers of colour would have to be made admissible. But the condition imposed on this admission was that the presence of the agricultural workers in the country would be restricted in terms of time and place. Thus, Professor Satzewich shows that the tied employment and strict seasonality features of the SAWP have their origins in racially-oriented policy.”[9]
Accordingly, “the SAWP was designed to admit workers of colour, but to keep them strictly tied to a limited type of employment.”[10] This decision to admit Caribbean workers while confining them to temporary status in agricultural work “embodies the combined objectives opined upon by Professor Satzewich: that SAWP fulfilled its economic objective of providing Canadian farmers with the labour [they] needed, while keeping within explicitly racist and sexist social objectives.”[11]
Justice Morgan then documented the racial stereotyping that informed the expansion of the SAWP to include Mexico in the 1970s, which was done, in part, “to reduce pressure coming from Caribbean countries to achieve improved terms of contract from Canadian employers.”[12]
Section 7 Charter Claim: Liberty and Security of the Person
The representative plaintiffs allege that restrictions in the SAWP contract that curtail workers’ freedom to move between employers and to choose where they live infringe the s. 7 liberty rights of SAWP workers. The representative plaintiffs also allege that restrictive terms in the SAWP contract infringe the workers’ s. 7 security of the person interests, and that the impugned restrictions “were adopted in the SAWP for racist and discriminatory reasons.”
Justice Morgan held that these claims are legally tenable. The security of the person claim challenges a legislatively mandated contract “that increases their risk of serious harm” and “prevents vulnerable individuals from protecting themselves from further risk or harm.”[13] He also found that the liberty claim “is squarely within the protection of personal dignity” recognized by the Supreme Court of Canada.[14]
Section 15 Charter Claim: Discrimination based on Race, Nationality, Ethnicity and Citizenship
The representative plaintiffs’ section 15 claim alleges that burdens imposed on workers in the SAWP discriminate on the basis of the race, nationality, ethnicity and citizenship of the workers. As Justice Morgan noted: “Conditions specific to the SAWP, including enforced seasonality, are imposed only on predominantly racialized workers from the Caribbean and Mexico.”[15]
Although section 15 of the Charter does not require discriminatory intent, the representative plaintiffs also plead “that these burdens were specifically imposed in furtherance of racist and discriminatory objectives.” Justice Morgan noted the well established principle that, when analyzing the constitutionality of legislative policy, “it is the original intent of the legislation that is of prime importance” even if the objectives may have shifted over time. Thus, he held: “The racially discriminatory origins of the SAWP cannot be discounted in analyzing the section 15(1) issue today.”[16]
The claim details the “ongoing discriminatory impact of the SAWP”, which include the fact that SAWP workers:
- are restricted in their ability to move freely between employers, exacerbating their risk of harm and abuse;
- are contractually obligated to reside at their employer’s premises, reinforcing segregation and social isolation based on race and nationality; and
- despite paying into the EI regime, are structurally excluded from EI benefits, due to being required to leave Canada for the months that they are unemployed. This pattern of exclusion is repeated annually, with some Class Members spending their entire careers on Canadian farms, paying EI premiums every year, yet barred from receiving EI benefits during their seasonal unemployment. Notably, Canada permits workers to collect EI benefits while residing in the United States, but not in Mexico or the Caribbean.[17]
Unjust Enrichment Claim
Justice Morgan also certified the cause of action for unjust enrichment: “The Plaintiffs plead that by requiring workers to return home immediately at the end of the eight-month work period, Canada systematically excludes SAWP workers from accessing EI benefits despite requiring them to pay EI premiums.”[18] He found that the elements of unjust enrichment were validly pleaded. While Canada had argued that the Employment Insurance Act provided a “juristic reason” for the denial of benefits, the pleading alleges that provisions of that Act are themselves discriminatory and contrary to section 15 of the Charter when applied to SAWP workers, in accordance with Supreme Court of Canada precedent that a lack of juristic reason based, in part, on an underlying s. 15 Charter violation, is viable.[19]
Quebec Tied Employment Class Action
Citing a recently authorized class action in Quebec, Association for the Rights of Household and Farm Workers v. Attorney General of Canada (the “Quebec Action”), Canada argued that the Quebec Action was preferable to this one.[20] Justice Morgan dismissed this argument. Despite some overlap between the two actions, Justice Morgan recognized key differences between the proceedings – including the fact that the narrower Ontario Action, which is limited to 74,785 seasonal agricultural workers from 2008 to the present, “is centred around the alleged unconstitutionality of restrictive and discriminatory conditions imposed upon SAWP workers, in light of the specific racial identity and societal position of these workers.”[21] This narrower class definition “means that much of the expert evidence has already been compiled for the certification process.”[22] He also noted that the Ontario case includes “a claim for unjust enrichment and seeks disgorgement of EI premiums collected from SAWP workers”, neither of which forms part of the Quebec Action.[23] He found that both actions can proceed in parallel.[24]
Parliamentary Privilege Motion Denied
The Court also adjudicated a Parliamentary privilege motion brought by Canada, which sought to strike out references to various Ministerial statements in the record. These statements “[attested] to the racially discriminatory origins of the program.” For example, Justice Morgan quoted from a November 1966 statement made in Parliament by the Minister of Immigration at the time, Jean Marchand, who said, with respect to European immigrant workers:
“…I am not prepared to enslave immigrant workers who have come to Canada. Even if you hire unskilled labour from abroad for the mining industry, where there is a shortage right now, there is nothing that can assure us they are going to stay there, because they will not. If the working conditions are poor, or the wages too low, they will move to Toronto or Montreal and then we will have the problem. We cannot enslave them. I am opposed to this form of contract saying to an immigrant: ‘You are going to work in that mine and you will have to work there for three years.’ I do not think we should do that.”[25]
The representative plaintiffs plead that “Minister Marchand made these comments rejecting tied employment…in the very same year that he promulgated the SAWP that subjected a group of Jamaican farmworkers to precisely this ‘form of contract’.”[26] Justice Morgan rejected Canada’s efforts to strike out these and other statements from the record. Recognizing that “one could consider the racist connotations of [Minister Marchand’s] speech to be outrageous”, Justice Morgan held that “the fact that he said it, and that he said it nearly simultaneously with his endorsement of the SAWP, is not controversial. It is a historical fact.”[27] Thus, the statements were not being relied on to prove “controversial facts”. Rather, as Justice Morgan held, “Minister Marchand said what he said when he said it.” The purpose of the rule of Parliamentary privilege “is to ensure that ‘[t]he courts…are careful not to interfere with the workings of Parliament’ […]. Its purpose is not, however, to sanitize the historical record or to hide from the public the workings of Parliament.”[28]
Common Issues
Justice Morgan certified common issues for breach of sections 7 and 15 the Charter, unjust enrichment and punitive damages, as well as aggregate damages common issues. In certifying the common issues, Justice Morgan concluded:
“The breaches alleged are systemic and apply across the class. The Charter claims focus on state action in imposing oppressive and liberty-restricting terms in the SAWP Contracts and legislation/regulation. Likewise, the unjust enrichment claim arises from a set of facts imposed by legislation and held in common by all class members – i.e. the payment of EI premiums, accompanied by restrictions imposed in the EI scheme and the SAWP that prevented access to EI benefits.”[29]
Next Steps
Subject to any possible appeal, the class action will proceed to be adjudicated on its merits. Notice of the certification decision will be distributed and class members will have the right to opt out of (i.e. exclude themselves from) the class action if they would prefer not to be a part of it.
A copy of the certification decision can be found here.
If you have any questions about this class action, please visit the class action webpage or contact class counsel at Goldblatt Partners LLP, Louis Century, Jody Brown or Tina Yang, or co-counsel James Sayce, Caitlin Leach or Shane Martínez.
[1] Palmer v. Attorney General of Canada, 2026 ONSC 927.
[2] Ibid at para 3.
[3] Ibid at paras 15-39.
[4] Ibid at para 16.
[5] Ibid at para 39.
[6] Ibid at para 17.
[7] Ibid at para 18.
[8] Ibid at para 19.
[9] Ibid at para 20.
[10] Ibid at para 21.
[11] Ibid at para 23.
[12] Ibid at para 27.
[13] Ibid at paras 54 and 57, citing Canada (Attorney General) v. Bedford, 2013 SCC 72.
[14] Ibid at para 57, citing Godbout v. Longueil (City), [1997] 3 SCR 844.
[15] Ibid at para 64.
[16] Ibid at para 65, citing R. v. Big M Drug Mart Ltd., [1985] 1 SCR 295 at para 91.
[17] Ibid at para 66.
[18] Ibid at para 71.
[19] Ibid at para 73, citing Alberta v. Elder Advocates of Alberta Society, [2011] 2 SCR 261.
[20] Ibid at paras 100-121, citing Association for the Rights of Household and Farm Workers v. Attorney General of Canada, 2024 QCCS 3350.
[21] Ibid at para 117.
[22] Ibid at para 108.
[23] Ibid at para 116.
[24] Ibid at para 120.
[25] Ibid at para 31.
[26] Ibid at para 32.
[27] Ibid at para 35.
[28] Ibid at para 37, citing Canada (House of Commons) v. Vaid, [2005] 1 SCR 667 at para 20.
[29] Ibid at para 98.
Lawyers
Louis Century, Jody Brown, Tina Yang