The first Ontario farm charged with occupational health and safety violations contributing to an employee’s death from COVID-19 has pleaded guilty. Last year, we posted a blog about the death of Juan Lopez Chaparro, a migrant employee from Mexico who had contracted COVID-19 while working at Scotlynn Sweetpac Growers Inc., located in Vittoria, Ontario. An extensive investigation by the Ministry of Labour, Training, and Skills Development into the farm and its owner led to 27 charges against both parties for various violations of the Occupational Health and Safety Act.

The guilty plea comes after a federal report, published by Auditor General Karen Hogan in 2021, investigated the efficacy of protection measures put into place by both employers and the federal inspection agency in protecting temporary foreign agricultural workers. The report specifically looked at the time period between March 2020 and June 2021. The findings show significant failures in providing adequate preventative measures for agricultural workers, and also in anticipated responsiveness in the event of an outbreak.

In light of the report, this case may be the first of several aimed at agricultural employers, in Ontario and across Canada, for violations of provincial and federal regulatory frameworks concerning workplace health and safety.

Hundreds of Farm Workers Tested Positive for COVID-19

Mr. Chaparro, the deceased worker, was one of thousands of individuals who travelled to Canada that year under the Seasonal Agricultural Worker Program. The Program allows farms to hire workers from Mexico and approved Caribbean countries for up to eight months per year. These workers are often housed in large bunkhouses intended to accommodate dozens of workers under one roof. The workers typically share bedrooms and communal areas such as kitchens and bathrooms. As a result, these individuals were particularly impacted when the pandemic started, despite preventative protocols which had been put into place to minimize transmission.

According to the agreed statement of facts between the provincial Ministry of Labour and Scotlynn Sweetpac Growers Inc., approximately 200 workers on the farm had tested positive for COVID-19 during the spring of 2020, including Mr. Chaparro.

Mr. Chaparro experienced debilitating COVID-19 symptoms for several days, however he was not isolated from other workers. Ultimately, he was later transported to a local hospital where he passed away.

Critics Call Penalty “Slap on the Wrist”

Following the investigation on the farm, the province identified several regulatory breaches, including:

• Failure to enforce screening for symptoms;
• Failure to isolate symptomatic workers;
• Failure to enforce mask protocols among workers; and
• Failure to report symptoms in workers to management.

These breaches lead to 27 charges filed against both the President and CEO, Scott Biddle, and the company. The company pleaded guilty to the charges and the court ordered a fine of $125,000.00 in addition to court expenses of over $30,000.00.

The fine ordered is significantly lower than the maximum penalty of $1.5 million, which some worker advocates are calling a “slap on the wrist”. Syed Hussan, the Executive Director of Migrant Workers Alliance for Change, has called for migrant workers to be granted permanent residency status in Canada, which would allow them more protection and support in enforcing their rights. As it is now, the threat of deportation or losing out on much-needed income can prevent workers from speaking up about unsafe working conditions.

Auditor General Report Finds Gaps Despite Enhanced Protections

Migrant workers are facing issues which are complicated by the fact that enforcement agencies, whose purpose is to ensure employers are protecting their workers by meeting regulatory requirements, may also be severely lacking. In December 2021, the Auditor General of Canada released a report which highlighted several concerns with the investigation and enforcement branch of the federal Employment and Social Development department, which is responsible for overseeing Canada’s Temporary Foreign Worker Program.

The Auditor General’s investigation and findings focus on gaps which may have contributed to the vulnerability of migrant farm workers since the start of the pandemic. The report dialed in on the period of March 2020 through June 2021, during which time over 79,000 workers travelled to Canada to work in the agricultural sector.

In April 2020, in an effort to address some concerns relating to the spread of COVID-19, the federal government amended the Immigration and Refugee Protection Regulations. These amendments included enhanced employer responsibilities for the benefit of their workers’ health and safety, which included obligations to:

• Provide separate housing for workers during the mandated 14-day quarantine period which would allow quarantined workers to remain 2 metres apart from one another;
• Provide sufficient cleaning products to allow workers to regularly and effectively sanitize their living quarters;
• Provide separate accommodations for workers who had tested positive for COVID-19 or showed symptoms of infection;
• Pay workers throughout the mandated quarantine period; and
• Refrain from preventing any workers from following all provincial public health laws and any orders made pursuant to the Quarantine Act or the Emergencies Act.

Inspectors Failed to Enforce Mandatory Employer Protocols

Once it became clear that migrant farm workers were a particularly vulnerable group, the federal government pledged an additional $16.2 million in June 2020 to increase and enhance agricultural inspections across the country. The 2021 Auditor General report indicates that the additional funding did little to improve the situation.

Among the findings, the report stated that approximately 75% of all inspection reports filed in 2020 were faulty, and nearly 90% of all reports filed in 2021 contained significant deficiencies. Despite this, nearly all employers were deemed to have passed the inspection, even in cases where inspectors noted issues of non-compliance or failed to gather sufficient evidence prior to making a proper determination.

Contact Milosevic & Associates in Toronto for Experienced Regulatory Defence

Milosevic & Associates in Toronto provides representation before tribunals, administrative bodies, and in court for those facing regulatory charges. Our lawyers have extensive experience assisting business owners and employers in highly complex litigation and administrative disputes, including occupational health and safety matters. Contact us online or by phone at 416-916-1387 to speak with one of our lawyers and learn more about how we can help.