HRTO finds that Coroners Act does not discriminate against migrant workers
Ryan Newell explains how the HRTO decided that exclusion from mandatory inquest provisions does not discriminate against migrant workers
In 2002, a Jamaican migrant farm worker, Ned Peart, died in after he was crushed by a 1,000-pound steel bin on the tobacco farm where he worked in Brant County.
No inquiry into Ned Peart’s death was conducted by the Office of the Chief Coroner, despite calls made by migrant worker advocates and their allies in the broader labour movement. Inquests into workplace deaths in the mining or construction industries are mandatory under s. 10(5) of the Coroners Act.
Ned’s brother, Wilbert Peart, filed a human rights complaint with the Human Rights Tribunal of Ontario (HRTO). He argued that the Coroners Act discriminated against temporary foreign workers on the basis of race, ancestry, place of origin, colour, ethnic origin and citizenship, by excluding them from the mandatory inquest requirement under s. 10(5) of the Act.
After six days of evidence, including testimony by several expert witnesses, the HRTO concluded that the exclusion of migrant farm workers from the mandatory inquest requirement in the Act does not result in substantive inequality.
Because the application was a challenge to legislation, the HRTO applied the two-step discrimination analysis under s. 15 of the Canadian Charter of Rights and Freedoms, as articulated by the Supreme Court in R. v. Kapp:
Does the law create a distinction based upon a ground under the Code?; and
Does the distinction create a disadvantage by perpetuating prejudice or stereotyping?
The HRTO held that Mr. Peart had satisfied the first step of the Kapp test by demonstrating that s. 10(5) of the Act has a disproportionate impact on foreign workers in Ontario under the Seasonal Agricultural Workers Program (SAWP), who are identified by prohibited grounds of discrimination, specifically citizenship and race.
In considering the second part of the Kapp test, the HRTO focused on the purposes of s. 10(5) of the Act. Adjudicator Hart emphasized two legislative rationales for limiting the mandatory inquest requirement to the mining and construction industries: 1) the greater degree of risk or danger of traumatic workplace fatalities in the mining and construction industries; and 2) the greater likelihood that a mandatory inquest requirement in these industries would result in useful recommendations to promote safety.
On the first point, the HRTO found that the workplace fatality rate in the mining and construction industries is much higher than in the agricultural industry. On the second point, the HRTO concluded that it was more likely for an inquest to result in recommendations that would increase public safety in the mining and construction industries since workers in those industries face a greater variety of hazards when compared to workers in the agricultural industry.
Accordingly, the HRTO decided that the exclusion of migrant farm workers from the mandatory inquest requirement does not result in substantive inequality.
The end result is certainly not what migrant workers and their allies were hoping for, especially when considered alongside other unsuccessful and time-consuming legal proceedings in which migrant worker advocates have recently participated.
However, even as it dismissed the application, the HRTO made several important findings about the dimensions of precariousness faced by migrant farm workers:
- it found that workers under the SAWP are “uniquely vulnerable” primarily due to the “‘closed’ nature of their relationship to their employers in Ontario, and the risk and fear of being repatriated with the resultant consequences on their livelihood”;
- it accepted that SAWP workers are reluctant to complain about their employers and are more likely to keep working while ill or injured;
- it held that SAWP workers are less able to challenge work demands imposed on them; and
- finally, and perhaps most importantly, the HRTO emphasized that the structure of the SAWP creates the precariousness experienced by migrant farm workers.
These findings are not news to migrant workers and their allies, who have been contending for years that the SAWP and other temporary foreign work programs are structured in such a way as to produce exploitative working conditions. Nonetheless, it is noteworthy that the HRTO reached these conclusions, especially as controversy surrounding the recently-imposed moratorium on temporary foreign workers in the food industry continues to grow.