Lawsuit targets ‘historical injustice’

Proposed class-action alleges migrant farm worker program was founded on ‘racist’ policies

When Canadian government officials first considered requiring migrant farm workers to work for a specific employer, they rejected the idea because they said it would amount to slavery.

“It would be contrary to the whole Canadian belief in freedom of the individual,” immigration minister Walter Harris said in 1952. Similar sentiments were expressed by Harris’s successors.

But in 1966, when the immigration minister of the day launched a new program for migrant agricultural workers, he ensured employer-specific work permits were an essential component.

What changed?

Prior to 1966, Canada relied on white, European workers to fill agricultural labour shortages.

When the government turned to the Caribbean to fill the same jobs, what became known as “tied” employment was suddenly crucial to avoid the potential for what one official called “racial problems.”

This is one of the claims in a proposed class-action lawsuit recently filed against the federal government on behalf of migrant farm workers who worked in Canada in the last 15 years.

The lawsuit uses historical records to argue that employer-specific work permits — which remain in place today — were imposed on Black and Indo-Caribbean farm workers because of their race and that it was “motivated by overtly racist policy objectives.”

The $500-million lawsuit also seeks restitution for the money paid by migrant farm workers for Employment Insurance despite being ineligible for benefits if they lose their job.

The case is separate from another proposed class-action lawsuit filed earlier this year that seeks to have closed work permits of all kinds deemed discriminatory and in breach of the Charter of Rights and Freedoms.

The new case deals only with farm workers, and alleges that the original justification for tied employment was explicitly racist.

“The wrongdoing we challenge in this case has been ongoing for more than half-a-century,” said Louis Century, one of the lawyers working on the case for Goldblatt Partners, which has partnered with Koskie Minsky and Martinez Law. “These coercive conditions that were imposed in the 1960s for overtly racist reasons continue to be imposed more than 60 years later.”

The lawsuit will need to be certified by a judge before it can proceed as a class action.

A federal government spokesperson did not directly answer questions about the case, saying they could not comment while it was “currently before the courts.”

In a statement, a spokesperson for Immigration, Refugees and Citizenship Canada said work is “underway” to implement a sectorspecific — rather than employer-specific — work permit for temporary foreign workers. They did not say when such a permit would be available.

The spokesperson also said temporary foreign workers can apply for an open work permit if they are abused or at risk of abuse in their job. The lawsuit calls those permits, for which abused workers must apply, “an inadequate and ineffective half-measure.”

More than 50,000 migrant workers come to Canada each year to work in the agricultural sector. They come through one of two programs: the Seasonal Agricultural Worker Program (SAWP), which was created in 1966, and the Temporary Foreign Worker Program (TFWP), which was opened to agricultural workers in 2011.

Both programs use employer-specific work permits, which have been criticized for making migrant workers more vulnerable to exploitation and abuse.

The freedom to leave a job is “the most important measure of self protection that any worker has,” Century said. Tied employment denies that freedom to migrant workers, he added, because they are deported if they exercise it.

European farm workers who immigrated to Canada prior to the SAWP were not subject to the threat of deportation, the lawsuit states. By contrast, they were afforded pathways to permanent residency and citizenship.

“Tied employment … was imposed as a means to obtain the labour of racialized workers while subjecting such workers to more coercive conditions of employment,” the lawsuit reads.

The lawsuit highlights some of the policy debates that preceded the SAWP, showing how Canadian government officials were trying to address their need for immigrant labour while guarding against “a substantial increase in negro immigration to Canada” and the “racial problems” they feared would accompany it.

Jean Marchand, Canada’s minister of manpower and immigration in Lester Pearson’s government, stressed in 1966 that any program that brought in workers from the Caribbean would need “strictly controlled conditions” to avoid “large-scale social problems,” according to the lawsuit.

Tied employment was the result. The lawsuit argues that the racial discrimination by the Canadian government was “intentional” and the purpose behind imposing tied employment was “rooted in racist stereotypes.”

Kevin Palmer, a 42-year-old former migrant farm worker from Jamaica, is one of two named plaintiffs in the case. From 2014 until 2019, Palmer worked eight months of the year in Leamington, Ont., for a large greenhouse operation.

In 2019, he said a notice was posted in his workplace that he and a number of other workers would be sent home early because the company was cutting staff due to crop problems.

When his contract was terminated, so was his immigration status. Despite having paid into EI for six years, he was not eligible to receive benefits after he lost his job.

“They’re taking this money but we don’t get anything back,” Palmer said in a phone interview from his home in St. Ann Parish, Jamaica. He said he is participating in the proposed class-action because migrant workers should have the same basic rights as other workers.

The lawsuit claims migrant farm workers paid more than $472 million in EI premiums to the federal government since 2008, and that Canada collected the money knowing it was impossible for migrant workers to access the benefit.

The Employment Insurance Act stipulates that in order to receive benefits you have to be in Canada and “capable of and available for work.” Since migrant farm workers are not allowed to stay in Canada if they lose their job they’re ineligible for EI, the lawsuit claims.

A spokesperson for Employment and Social Development Canada, which is responsible for EI, said that last year the federal government invested $49.5 million in the Migrant Worker Support Program, which assists temporary foreign workers in a variety of ways, “including financial precarity situations following a job-loss.”

The spokesperson also said, “Workers, including temporary foreign workers, may be able to receive EI benefits if they are in insurable employment and meet qualifying and entitlement conditions.”

Century said it’s “unconscionable” that any worker would pay premiums for a benefit they can’t access.

“But for these workers of all workers, who make up the most vulnerable workers in Canadian society, and who are subjected to heightened vulnerability because of their race and their nationality, to then be structurally excluded from EI is a grave historical injustice that has to be remedied.”