Farm employees working off site are still considered farm employees, judge rules

An Ontario Divisional Court judge has ruled that employees that work for a sweet corn farm at an off-farm site are still considered farm employees and are not required to be paid overtime. The ruling is good news for farmers as it affects all farms that hire workers.

The case involves Rouge River Farms, a family farm that grows sweet corn on land in York Region, Pickering, King City, Tillsonburg and Ridgetown, as well as in Ohio, Georgia and Florida. The farmers own 1,700 acres in Ontario and 6,300 acres in the U.S.

The farm sells sweet corn packaged in trays, and the farmers have a centralized facility at Gormley, just north of Markham, where harvested corn from both Ontario and the U.S. is sent for post-harvest production. Some of those employees — 250 during peak months — at the Gormley location also do on-field jobs such as harvesting, husking, repairing equipment, spraying, fertilizing and planting cover crops.

In March, 2016, an Ontario Employment Standards Officer visited the Gormley facility and said that it was not a farm but a large warehouse and that Rouge River would need to pay its workers there more money when they worked overtime.

Rouge River argued that the employees were farm employees and were exempt from overtime rules and challenged the decision before the Ontario Labour Board. Rouge River brought in Dr. Frank Ingratta, former OMAFRA deputy minister, as an expert witness. He testified it is common that farmers do some post-harvest tasks on non-productive land. The farm’s owners also testified that it was necessary not to have post-harvest production on growing land.

The Ontario Labour Board ruled that the farm overtime exemption did not apply as the employment was not directly related to the primary production of sweet corn. The board also said that a farm is a tract of land used for growing agricultural products.

The farmers then brought the matter to Ontario courts, where a judge ruled in favour of the farmers and said the employees were farm workers and not entitled to overtime.

The judge wrote that it was unreasonable for the Labour Board to disregard compelling expert evidence — without explanation — that would have provided a broader interpretation of the word ‘farm,’ and that the board’s interpretation of a farm was too narrow.

For example, the judge said employees would be exempt if sorting took place at the farmland instead of the Gormley location, even though the work was exactly the same.

The judge also wrote that the board’s decision would affect thousands of farmers and their employees.

“Based on the Board’s interpretation of ‘a farm,’ the employer would be expected to track with precision the hours spent on the Gormley Location (where the exemption did not apply) and the hours spent on approximately 30 tracts of land in the Ontario lots (where the exemption would apply),” he wrote. “Imposing such a distinction would create significant obstacles in managing the labour force and, for employers and employees, significant challenges in record keeping.”