Kevin Palmer and Andrel Peters are agricultural workers from Jamaica and Grenada, respectively.
They both have two kids and worked on Ontario farms near Leamington. And they’re both suing Canada for a combined $500 million.
Palmer and Peters — like the other quarter-million people Canada imports for eight months out of the year to plant, prune, harvest, and process the fruits, vegetables, flowers, and cannabis we grow — are the backbone of Canada’s agricultural industry. Though many return to work here for years, even decades, the Seasonal Agricultural Worker Program does not entitle them to overtime pay or worker protections or grant them any advantage when it comes to citizenship.
A recently proposed class-action lawsuit, in which the representative plaintiffs are Palmer and Peters, alleges that Canada has violated the Charter of Rights and Freedoms. By requiring SAWP participants to be tied to one employer and to pay Employment Insurance premiums while preventing them from accessing benefits, Canada, it argues, is violating sections 7 and 15 of the Charter, which state:
- Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
- Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
The allegations, which have not been proven in court, take issue with two mechanisms of SAWP. The first is that participants are required to contribute to benefit programs they can’t access. The damages sought in the suit are related to those fees.
“Every year, Canada collects tens of millions of dollars in EI premiums from Class Members while structurally excluding them from any possibility of receiving the benefit of those premiums,” reads the statement of claim. “Over the past 15 years alone, the Canadian government has been enriched in the amount of $472 million on the backs of the most marginalized workers in the country.”
To grasp this hypocrisy, imagine two workers growing tomatoes outdoors in Leamington. One is a Canadian citizen; the other is a member of the SAWP. Both pay EI deductions on their wages. At the end of the growing season, when there is no more work, the Canadian citizen can apply for EI benefits, but their international co-worker cannot.
The second charge relates to the manner in which SAWP ties workers’ status in Canada to the specific employer that hired them and also to the ease with which they can be terminated and repatriated.
The problem with tying status to one employer is that it inhibits a worker’s ability to object to the abuse, unsafe work conditions, and unfit housing to which they are routinely subjected. The system that has been in place since 1966 empowers employers to dismiss without cause those who speak up and send them back home, where it is unlikely they will be able to secure another contract in Canada.
The goal of this lawsuit is not only compensation for workers who have been denied the benefits they’ve paid for, but also changes to the program.
“What’s unique in class action, the vehicle we’re using here, is that class actions explicitly in the law say that they should be also a behaviour-modification tool,” says Jody Brown, partner at Goldblatt Partners LLP, one of three firms representing the plaintiffs.
“So our goal is to get people something for what’s happened in the past, in terms of being denied their EI payments, and then hopefully change the EI program into the future.”
Agenda segment, April 6, 2023: Is Canada doing immigration wrong?
In 2009 and 2016, parliamentary standing committees recommended the end of employer-specific work permits, finding that “employer-specific work permits tying workers to one employer lead to a power imbalance that is conducive to abuse.”
Canada’s reliance on temporary foreign workers is only growing. Since 2015, the number of such positions approved annually has ballooned 148 per cent, from 89,416 to 221,933 in 2022. (And that doesn’t include the countless international students and graduates with open-work permits who’ve joined the army of vulnerable workers delivering meals by e-bikes around our cities.)
But instead of addressing worker concerns, the programs are being amended to benefit employers.
The Recognized Employer Pilot, launched last year as a three-year pilot program, enables employers with clean records to bring in workers without needing to reapply each year. Employment Minister Randy Boissonnault stated in a press release that it would “cut red tape for eligible employers, who demonstrate the highest level of protection for workers, and make it easier for them to access the labour they need to fill jobs that are essential to Canada’s economy and food security.”
While the program promises to target “employers with the best recruitment practices,” whatever vetting system we use will likely be ineffective. Temporary foreign workers, particularly in the agricultural sector this program aims to serve, are among the most vulnerable members of our workforce. As long as they can be fired and sent home with such ease, infractions will be underreported. And that suggests any assessment of which employers have demonstrated “the highest level of protection for workers” will be flawed and incomplete.
Our demand for low food prices in turn demands a supply of low-wage workers who earn less than a living wage in any Ontario jurisdiction. We’re effectively setting up rubber-stamp access to low-cost, easily exploited labour — all to serve our increasing reliance on temporary foreign workers, without whom we would be unable to grow food.