75,000 migrant workers challenge EI rules and 'tied employment'
Ontario’s migrant farmworkers have won a major procedural victory in their fight over tied employment and access to Employment Insurance (EI), after the Ontario Superior Court of Justice certified a Charter class action against the federal government on behalf of tens of thousands of workers in the Seasonal Agricultural Workers Program (SAWP).
Justice Edward Morgan certified Palmer v. Attorney General of Canada, a class action on behalf of roughly 75,000 Caribbean and Mexican farmworkers who have worked in Canada under SAWP since 2008.
The lawsuit targets two core features of SAWP: “tied employment” provisions that bind workers to a single employer, and what the plaintiffs describe as “the systematic exclusion of SAWP workers from Employment Insurance (EI) benefits despite being required to pay EI premiums.”
The plaintiffs allege that class members “can spend the majority of their working lives contributing to the Canadian economy, while being denied the benefits, rights and entitlements accorded to comparable workers, including Employment Insurance (EI).”
“Class members can spend the majority of their working lives contributing to the Canadian economy, while being denied the benefits, rights and entitlements accorded to comparable workers, including Employment Insurance (EI),” said a post by Goldblatt Partners, which is representing the workers.
“The claim estimates that Canada has collected hundreds of millions of dollars in EI premiums from migrant agricultural workers and their employers over the past 15 years alone, while denying these workers the ability to access regular EI benefits because of tied employment.
EI premiums from migrant workers
Justice Morgan certified all proposed causes of action, including alleged breaches of sections 7 and 15 of the Charter and unjust enrichment, and “approved the class action to proceed to the merits in all respects.”
The section 7 claim argues that SAWP contract restrictions on changing employers or housing arrangements infringe workers’ liberty and security of the person which “increases their risk of serious harm” and “prevents vulnerable individuals from protecting themselves from further risk or harm.” Justice Morgan found the liberty claim “is squarely within the protection of personal dignity” recognized by the Supreme Court of Canada.
On section 15, the representative plaintiffs say conditions “including enforced seasonality, are imposed only on predominantly racialized workers from the Caribbean and Mexico,” and plead that these burdens “were specifically imposed in furtherance of racist and discriminatory objectives.” Justice Morgan stressed that “the racially discriminatory origins of the SAWP cannot be discounted in analyzing the section 15(1) issue today.”
Court confronts SAWP’s discriminatory roots
A defining feature of the certification decision is its blunt assessment of SAWP’s history. Drawing on the expert report of McMaster sociologist Victor Satzewich, Justice Morgan wrote that SAWP “originated in an effort by Canadian government officials to assist farmworkers in filling their chronic labour shortages while, at the same time, keeping racialized workers from becoming a permanent part of the Canadian population.”
He concluded that “[t]he totality of evidence compiled in Professor Satzewich’s report supports his conclusion that the SAWP was built in the 1960s and 1970s around the stereotyping and prejudice held against racialized workers from the Caribbean, and the stereotyping and exploitation imposed on workers from Mexico.” The program, he said, “was designed to admit workers of colour, but to keep them strictly tied to a limited type of employment.”
When workers were finally admitted on a seasonal basis in 1966, they were placed on temporary, employer‑tied contracts and barred from permanent immigration. Justice Morgan accepted the plaintiffs’ argument that “the tied employment and strict seasonality features of the SAWP have their origins in racially oriented policy.”
Unjust enrichment with EI premiums
Alongside the Charter arguments, Justice Morgan certified an unjust enrichment claim over EI premiums. The plaintiffs say Canada “systematically excludes SAWP workers from accessing EI benefits despite requiring them to pay EI premiums,” since workers must leave Canada at the end of the eight‑month work period and thus cannot claim regular EI in the off‑season.
The claim notes that “Canada permits workers to collect EI benefits while residing in the United States, but not in Mexico or the Caribbean.”
Canada argued that the Employment Insurance Act provides a legal basis for denying benefits, but the plaintiffs allege the relevant provisions, as applied to SAWP workers, are themselves discriminatory and contrary to section 15. Justice Morgan found that theory “validly pleaded,” in line with Supreme Court precedent that a lack of juristic reason can rest on an underlying section 15 violation.
Subject to any appeal, the class action will now proceed to a full hearing on the merits. Notice of certification will go out to class members, who will be able to opt out if they choose.
