An Ontario court has cleared a major hurdle for migrant farm workers to pursue a Charter challenge against Ottawa for systemic racism and discrimination.
On Monday, the Superior Court of Justice certified a $550 million class-action lawsuit initiated by two lead plaintiffs, Kevin Palmer and Andrel Peters, who were brought to Canada under the federal government’s seasonal agricultural farmworker program (SAWP).
The lawsuit alleges that their rights were violated under the “tied employment” provisions of the program that restricted them to work for a named employer only, and their “compelled” payments to Canada’s employment insurance premiums despite their disqualification from receiving the benefits.
The certified class will cover current and former agricultural workers who are or were employed in Canada on a contract basis under SAWP, on or after Jan. 1, 2008. The federal government has already identified precisely 74,785 people who are members of the class, and has produced a class list with each member’s personal information.
Launched in 1966, the SAWP allows agricultural employers to hire temporary foreign workers from Mexico and participating Caribbean countries for up to eight months a year when qualified Canadians are unavailable. Between 30,000 and 40,000 seasonal migrants come to work here via the program each year.
In his decision, Judge Edward M. Morgan concluded that the plaintiffs’ proposed common issues predominate over any individual issues in the action, and focus on a common set of conditions imposed on all class members in the SAWP.
“The breaches alleged are systemic and apply across the class,” Morgan wrote in his 25-page decision. “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.
During the hearing in January, the government argued that seasonal agricultural workers could freely choose to participate in the SAWP, and contended the EI rules — requiring availability for work with a valid work permit — apply to all in the same circumstances.
However, the court concluded the pleading in the statement of claim passed the threshold test to move forward, and ordered the parties to make submissions on costs.
