Migrant Farmworkers Go to Court to Fight for Rights — and $500 Million
The Tyee talks to Jody Brown about the seasonal farmworkers’ class action
The Tyee spoke to Jody Brown on our proposed class action against the federal government alleging that several aspects of the federal government’s seasonal agricultural workers program are unconstitutional.
A proposed class-action lawsuit filed in Ontario last month says those programs, which brought more than 70,000 workers to Canada on temporary visas in 2021, violate Charter rights by forcing the workers to work for a single employer and pay into government benefits that almost none of them can actually claim.
Jody Brown, a partner at one of three Ontario firms that brought the class action on behalf of a pair of migrant workers, says they seek up to $500 million in general and punitive damages for the tens of thousands of migrant workers who have come to Canada in the last 15 years.
Brown says they are also seeking policy changes, including an end to “closed” work permits, that would transform a program that has become critical to Canada’s agricultural sector.
“We do not want that to end. We want them still to be able to come to Canada to work,” said Brown, who works in the Toronto office of Goldblatt Partners LLP. “But when it’s tied work, it’s a form of indentured slavery.”
The lawsuit has not been certified by the Ontario Superior Court of Justice. Even if it is, Brown says, it would likely take years to reach a conclusion.
But advocates and observers say it’s a serious legal challenge to a work system that they say discriminates against vulnerable foreign workers.
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One of the lawsuit’s central claims is that Canada has unfairly required migrant farmworkers to pay into the country’s employment insurance program, even though they can almost never claim benefits.
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But workers can claim EI only if they reside in the country. And since migrant workers who lose their jobs have to leave Canada, they cannot claim the benefit.
“In order to collect EI, you have to be ready and able to work in Canada. That simply does not apply to people when the structure of their work is that they have to leave the country when they stop working,” Brown said.
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… Marc Miller, the federal minister in charge of the file, said in a committee in November he was planning reforms to Canada’s temporary foreign worker programs aimed at preventing abuse.
Miller said closed work permits would continue but hinted he was open to “a more open or regional form of permit.” A Senate committee examining the issue has floated a similar idea, arguing it could be economically beneficial and could give migrant workers more flexibility.
Brown says such a system would force farm owners to compete for employees, which would require them to improve wages and working conditions.
“So long as they create decent working conditions, they have nothing to be concerned about. You’re still going to have people who want to come to Canada to work, but they’re just going to have more rights in terms of their labour,” Brown said.
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The statement of claim argues the tied permit system stems directly from racist government policies in the 1960s, which sought to deny Black and other racialized workers the same benefits afforded to Canadian employees.
Brown said that even if times have changed, that system hasn’t.
“The same policy that was created then, which was created based on these sentiments, is the same program today. It has not structurally changed at all,” he said.
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Practice Areas
Civil Litigation, Class Action Litigation, Constitutional Law