We are very pleased to have the firm of Miller Thomson LLP joining us on November 20th, 2014 at the CRIFPT (Craig Richardson Institute of Food Processing) at Conestoga College, Cambridge for a very special session on "Legislative Issues in the Food and Beverage Industry". The Team at Miller Thomson has a wealth of information to share and we are delighted to pass along an article written by Evan Campbell, Associate, on "Interesting Case from Ontario - Farm Workers Denied Coroners Inquest". Our special thanks to the Team at Miller Thomson for sharing this with us!
Interesting Case from Ontario - Farm Workers Denied Coroners Inquest
In Peart v the Ministry of Community Safety and Correctional Services, the Ontario Human Rights Tribunal ("HRTO") considered whether the Coroner's Act was discriminatory against migrant farm workers.
Ned Peart, a seasonal worker from Jamaica employed under the Seasonal Agriculture Workers Program ("SAWP"), was tragically crushed to death by a 1,000 pound steel bin which he was attempting to move. Despite multiple requests, the Office of the Chief Coroner refused to hold an inquest into the death.
The Coroner's Act appoints physicians with the mandate to conduct investigations and preside over inquests in the public interest. A formal inquest does not occur into every death. Section 10 (5) of the Coroner's Act requires a mandatory inquest in circumstances involving the accidental death of a worker at or in a construction project, mining plant or mine. The Applicant commenced the complaint with the OHRT arguing that section 10 (5) of the Coroner's Act discriminated against migrant farm workers as it denied them the benefit of a mandatory inquest into workplace deaths.
The HRTO applied the two-step analysis under section 15 of the Canadian Charter of Rights and Freedoms in assessing the complaint. Specifically, the HRTO considered (1) whether section 10 (5) of the Coroner's Act creates a distinction based upon a ground protected under the Ontario Human Rights Code; and (2) whether the distinction creates a disadvantage by perpetuating prejudice or stereotyping.
The HRTO found that the first step of the test was met on the basis of constructive or adverse effect discrimination. The section was found to be discriminatory as migrant farm workers, who were identified by prohibited grounds of citizenship and race, did not receive the benefit of section 10 (5) of the Coroner's Act. Of note, the HRTO found that as a result of the structure of the SAWP the workers are uniquely vulnerable. In reaching this conclusion the HRTO accepted evidence that SAWP workers are reluctant to make complaints about their employers, including regarding health and safety issues, are more likely to continue working while sick or injured, and are less likely to take issue with challenging work demands placed on them.
At the second stage of analysis the HRTO found that the requirement that a mandatory inquest be held for deaths suffered in the mining industry and not by migrant farm workers was not discriminatory. The tribunal noted that the comparison of the workplace hazards experienced by migrant farm workers and in the mining industry must be made in the context of the purpose served by the mandatory inquest. The primary purpose of Section 10 (5) of the Coroner's Act is to provide recommendations to prevent future deaths.
The Tribunal accepted evidence that those employed in mining and construction industries are at a greater degree of risk of traumatic workplace fatalities then migrant farm workers. Further, the HRTO noted that there are a greater number of ways in which workplace fatalities can occur in the mining industry. Therefore, the requirement of a mandatory inquest into every workplace fatality in the mining industry results in useful recommendations which prevent similar workplace accidents.
Employers of migrant workers should consider the HRTO's comments regarding the vulnerability of migrant workers in relation to their obligations under applicable health and safety legislation. The vulnerability of migrant workers could be a factor considered by a Court when assessing whether an employer has established a due diligence defence following a workplace accident.
Reprinted with permission by author Evan Campbell, Associate (Article Originally Published: November 4th, 2014)
This article was originally published on Miller Thomson LLP's blog, The Food Web: Canadian Agribusiness and Food Law (www.millerthomson.com/en/blog) and it contains a discussion relating to the law to be used for educational and non-commercial purposes only; the author(s) of the blog do not intend the blog to be a source of legal advice. Please retain and seek the advice of a lawyer and use your own good judgement before choosing to act on any information included in the blog. If you choose to rely on the materials, you do so entirely at your own risk.
Hope you enjoyed the article above - and thanks again to the Miller Thomson Team!
As per our message above, we would be delighted to have your participation at our special networking event on Legislative Issues in the Food and Beverage Industry scheduled for November 20th, 2014 at the CRIFPT. If you would like to join us, please RSVP to me at firstname.lastname@example.org!
All the best!
Bren de Leeuw, Director - EMC Food, Beverage & Bio Sector Program
Excellence In Manufacturing Consortium (EMC) - email@example.com - 519-372-6009
EMC receives funding under Growing Forward 2, a federal-provincial-territorial initiative. However, the comments or opinions expressed on this blog are solely those of their respective contributors and do not necessarily represent the views of the Government of Canada or the Province of Ontario.