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 Actrequires 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 Actcreates 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.